A and L (Children)

JurisdictionEngland & Wales
JudgeLord Justice Munby,Lord Justice Tomlinson,Lord Justice Patten
Judgment Date21 December 2011
Neutral Citation[2011] EWCA Civ 1611
Docket NumberCase No: B4/2011/1594
CourtCourt of Appeal (Civil Division)
Date21 December 2011
In the Matter of A and L (Children)

[2011] EWCA Civ 1611

Before:

Lord Justice Patten

Lord Justice Munby

and

Lord Justice Tomlinson

Case No: B4/2011/1594

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE PRINCIPAL REGISTRY OF THE FAMILY DIVISION

HIS HONOUR JUDGE COMPSTON

Royal Courts of Justice

Strand, London, WC2A 2LL

Ms Alison Ball QC and Mr Rohan Ramdas-Harsia (instructed by Cook Taylor) for the appellant (mother)

Mr Stephen Bellamy QC and Miss Helen Soffa (instructed by local authority) for the local authority

Mr Anthony Hayden QC and Mr Tim Hussein (instructed by H E Thomas) for the father Mr Bernard Huber (of Edwards Duthie) for the children's guardian

Hearing dates : 18 October 2011, 2 December 2011

Lord Justice Munby
1

This is an appeal, pursuant to permission granted by Black LJ on 10 October 2011, from a judgment of His Honour Judge Compston in the Principal Registry of the Family Division on Friday 27 May 2011. The judge was conducting a fact-finding hearing in the course of ongoing care proceedings relating to two children, A, a girl, born in May 2003, and her brother, L, born in October 2006.

2

So far as material for present purposes the judge found that both A, in particular, and to a lesser extent L had been sexually abused by one or more of three adults, two men, X and Y, and a woman, Z, who were friends of their mother and who he referred to in his judgment as "the gang of three." He found that the mother was involved.

3

The mother now appeals, represented by Ms Alison Ball QC and Mr Rohan Ramdas-Harsia, who had appeared for her before Judge Compston. The appeal is resisted both by the local authority, represented by Mr Stephen Bellamy QC (who did not appear before the judge) and Miss Helen Soffa (who did), and by the father, represented before us, as before the judge, by Mr Anthony Hayden QC and Mr Tim Hussein. The guardian, here, as below, is represented by Mr Bernard Huber. Although initially the guardian's stance was neutral, she now joins the other respondents in resisting the appeal.

4

Before exploring how Ms Ball puts her case, it is necessary to understand the context. The local authority's case in relation to the mother was based upon allegations of neglect, physical abuse and sexual abuse. Although the children had made allegations of inappropriate sexual activity by the father and the two grandmothers this formed no part of the local authority's case. In relation to sexual abuse it sought findings only in relation to X, Y and Z and the mother. The case against the father was that he had failed to protect the children against the mother's neglect of their physical care and been unable to provide it himself or to take practical responsibility for providing the children with basic physical and emotional care.

5

In addition to seeking a finding that A had been physically abused by X, Y and Z and by her mother, the local authority's case was that there was no other explanation for A's allegations than that she had witnessed sexual activity and experienced sexual abuse. It sought findings that the children had been exposed to inappropriate sexual behaviour; that A had been sexually interfered with by X, Y and Z; that A had been sexually interfered with by her mother; and that X had put his penis in A's mouth. Particulars, which there is no need to rehearse, were given of all these allegations. It may be noted that the local authority's case, accepted by the judge, was that when A in her ABE interview (see below) referred to her "daddy" this was in fact a reference to X and not to her father.

6

In relation to the alleged sexual abuse, the mother's case before the judge was put in the alternative: the children were not abused, the allegations stemming from knowledge A had acquired watching pornographic videos and from the emotional trauma of separation; alternatively, and if there had been sexual abuse, this was by non-family adults, the mother did not know it had occurred and the abuse was "at the lower level."

7

The hearing before Judge Compston lasted for some eight days, during which he heard from eight witnesses, including the mother and the father but not X, Y or Z, viewed two ABE video interviews of A, and considered extensive written material. This part of the hearing concluded on Thursday 26 May 2011. The judge invited written submissions from all parties, including the guardian. They were lodged before the hearing resumed the following morning and ran in total to some 30 pages. In addition to these materials there was a very detailed 27 page analysis by Ms Ball of the evolution of the allegations of sexual abuse.

8

The oral submissions finished at about 12.30 and at 2.30 Judge Compston began to deliver an extempore judgment. It runs to 15 1/2 pages of double-spaced transcript. At the end of his judgment the judge invited counsel to raise "any particular point which any of you think I have got wrong or you think I should cover". Mr Hayden, Miss Soffa and Mr Huber each did so. Ms Ball did not.

9

Judge Compston exonerated the children's father so far as the sexual abuse was concerned, and likewise exonerated the children's two grandmothers. He exonerated the father in relation to the allegations of neglect. He made findings against the mother in relation to both neglect and physical abuse. In her notice of appeal the mother explicitly confines her appeal to Judge Compston's findings in relation to the sexual abuse. So I need say no more about these other matters. For present purposes what I need to focus upon are the judge's findings in relation to sexual abuse.

10

The judge agreed with the guardian that a brief exposure to pornography was not sufficient to explain A's account: "we must face the fact that she must have been exposed to a more direct experience of sexual behaviour probably by … 'the gang of three'." He continued:

"Sexual abuse, did it happen at all? Is it all in A's imagination? I have to say … I have little doubt that something happened. The point is this: Who was responsible for it? Was it the members of the gang of three? Was the mother aware or not aware?"

Later he expressed himself as "quite certain" that A had witnessed sexual activity and that she had herself experienced sexual abuse. "The point though", he said, "is by whom?"

11

In addition to the two ABE interviews, the judge had the very detailed notes kept by the children's foster carers. In many respects the judge was critical of the foster carers. They were, he said, "way out of their depth" though they had tried to do their best. But importantly he found, and in my judgment was entitled to find, that they were conscientious and, in particular, that they accurately recorded anything which A said about sexual matters.

12

The judge acknowledged that the two ABE interviews differed. In the first, A said nothing of any great moment; the second, he said, was much different. In relation to the crucial second ABE interview, the judge made four findings:

i) First, he found that the interview was properly conducted.

ii) Second, he found that A was "speaking quite naturally" and "telling her tale in a genuine way." She did not seem to be cowed or inadequate in giving her account.

iii) Third, he found that "some" of the things A said were "plainly wrong and were fantasies" and that some of her tale was "plainly not possible."

iv) Fourth, he was impressed by the amount of detail in what A was saying and the fact that it went beyond mere allegations.

13

This last point is, in my judgment, central to the outcome of this appeal, so I should set out exactly what the judge said:

"I should say this also that there was an awful lot of detail and that, to my mind, certainly matters. Sometimes in cases like this, and sometimes in criminal cases, one just gets one phrase, 'He touched my fanny,' or, 'He pulled my willy'. Just one. That is much harder, but in this particular case, we have very much more …

However, what did come across … were not just allegations. For example:

'Were you on the settee?' 'Yes'.

'How did Mummy put her private on your face?' "She was laying down, then she got up,' etc etc.

'Did Mummy have clothes on?' 'Yes.'

'What did it feel like?' 'Sickness. It feels disgusting.'

'Tell me why it feels disgusting?' 'Because it smells.'

'It smells. Okay, what did it smell of?' Answer: 'Her body.'

Question: 'Can you tell me what it felt like?' 'It felt, what do you mean?'

Question: 'Well how did it feel? Did it feel like skin? Did it feel like hair? Did it feel like clothes? How did it feel?' Answer: 'It felt like skin'.

I mention that because it seems to me that that is sufficiently cogent to show that something must have happened and it is not just a question of all imagination and having picked it up from conversation. Something must have happened."

I should add that the words quoted by the judge are extracted from an account which runs over several pages of the transcript of the ABE interview.

14

The judge gave other examples of the same point, some derived from the ABE interview, others from the foster carers' notes. Having quoted various accounts A had given the foster carers about X and Z, he said:

"I am certain that something on these lines did happen, though I am not necessarily … convinced that all the details, vis à vis which individual, are necessarily right. It seems to me that there is too much graphic information here to say that it is just in the mind."

He referred to an account which A had given the foster carers of how (I quote only the central part of A's account) X "took all his clothes off & he's [sic] pants & he took his privates & put it in my mouth & and...

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