D v B and Others (Flawed Sexual Abuse Inquiry)
| Jurisdiction | England & Wales |
| Judge | Stephen Wildblood QC |
| Judgment Date | 14 September 2006 |
| Neutral Citation | [2006] EWHC 2987 (Fam) |
| Court | Family Division |
| Date | 14 September 2006 |
[2006] EWHC 2987 (Fam)
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Stephen Wildblood QC
Judgement Approved by the Court for Handing Down Stephen Wildblood QC
This judgment consists of 43 paragraphs and has been signed and dated by the judge. Insofar as may be necessary, the judge hereby gives leave for it to be reported.
After some hesitation and guidance, I have decided that a shortened version of the judgment in this case should be released for publication. It is an example of a flawed enquiry into false allegations of sexual abuse. It also surveys the evidence of a 'veracity expert' who contended, wrongly, that the allegations should be believed.
This is a case which concerns the future welfare of a boy, TD, who was born on 8 th February 2003. He is therefore three years old. TD's father ('the father', who lives in Somerset) and TD's mother ('the mother', who lives in Surrey) were not married. The mother has a daughter called EB, who is aged 5 having been born on 4 th December 2000. EB has a different father to TD. At all material times TD and EB have lived with the mother.
This is a fact finding hearing in greatly delayed proceedings. The substantive applications before the court are made by both parties under section 8 of The Children Act 1989 and relate to TD only. The dominant application is by the father for contact; it was made on 23 rd September 2003. The father has not sought orders in relation to EB. TD has been joined to the proceedings and appears by his Guardian ad litem. The father now has parental responsibility pursuant to an order of 16 th August 2005.
On 11 th August 2006 (i.e. on the eighth day of this hearing) the Surrey County Council made a long overdue application under section 31 of The Children Act 1989 for supervision orders in relation to both children.
On 6 th March 2006, I ordered that the mother should state in a written document the findings that she sought. The allegations recorded in the resultant document can be summarised in two sentences:
i) Both EB and TD have been sexually abused by the father;
ii) The mother's belief that the children have been sexually abused is genuine.
It is accepted that, in relation to EB, any abuse of her by the father must have occurred prior to 7 th April 2003 (when the mother and father finally separated). The allegations of the abuse of TD arose first in August 2005 after the first unsupervised contact visit on 18 th August 2005 but then became more specific in November 2005 after the first staying contact that then took place.
The specific detail of the allegations of sexual abuse are stated in a document as follows:
i) In relation to EB:
a) The father has hurt her bottom;
b) The father put his fingers and a knife in her bottom;
c) The father put his penis in her bottom
ii) In relation to TD:
a) The father put his penis in TD's mouth;
b) The father put a knife on his penis;
c) The father put his fingers in his bottom.
That document states expressly that there are other allegations of abuse that are associated with those primary allegations ('EB has made various statements which are suggestive of abuse…which the court will be invited to consider as part of the context and background to the making of the specific allegations set out'). It makes no mention of 'the paternal grandmother' (as I will call her).
Having read the documents in the case it seemed to me to be obvious that the mother also made allegations against the paternal grandmother. The documentary evidence that had been filed by then made it plain that the mother was contending that the paternal grandmother:
i) Witnessed acts by the father that she knew or ought to have known amounted to sexual abuse by the father of both EB and TD;
ii) Applied cream to EB in an attempt to conceal the physical harm that had been occasioned to her by the father in an act (or acts) that she knew or ought to have known to have been sexually abusive;
iii) Failed to protect either child from sexual abuse by the father;
iv) Lied to the court in oral and documentary evidence about her knowledge of and involvement in the sexual abuse of both children.
During a directions hearing on 7 th April 2006 I raised whether findings were being sought against the paternal grandmother. Counsel then instructed for the mother argued strenuously that no findings were sought against her and that it would be wrong to join her to the proceedings. I referred to Re S (child case: intervener), Re [1997] 2 FCR 272; sub nom Re S (care: residence: intervener) [1997] 1 FLR 497, CA and Re H (care proceedings: intervener) [2000] 2FCR 53 CA. I also considered The Secretary of State for Trade and Industry v Bairstow [2003] EWCA civ 321 at paragraph 38 (if, sub silentio, findings were being sought against the paternal grandmother, a woman who has regular contact with her 11 other grandchildren, any findings may not bind her in any subsequent proceedings without proper involvement in these proceedings).
On the paternal grandmother's application, I joined her as Third Respondent (although she has been referred to as an intervener) and she has been represented throughout these proceedings. Ms Gargan, the third counsel who appeared for the mother during these proceedings (and who skilfully took up the responsibility of the mother's case on the second day of the hearing), acknowledged that she did seek findings against the paternal grandmother to the effect set out above, contrary to the strenuous arguments of the mother's first counsel.
During the currency of this hearing it was necessary for me to formulate the terminology that reflected the allegations that were being suggested against the paternal grandmother; I then invited submissions from the legal representatives upon that formulation. I adapted my original formulation following submissions from Ms Gargan about the case that she wished to present on behalf of the mother. Although there is no suggestion that the paternal grandmother experienced any surprise or injustice about the delayed formulation of the allegations that she faced, I do not consider that this task should have been left to me; it is not part of the Judge's role to formulate a party's allegations. It should have been done by those then acting for the mother at least 12 months ago—see the order dated 1 st June 2005. If it was not done then it should have been done immediately after paragraph 6 of my order of 7 th April 2006. Ms Gargan (who represented the mother with outstanding skill) does not bear the blame for the delay.
The factual basis of the allegation against the paternal grandmother, is that she came across the father in the act of abusing EB and was unable to pull him off. Seeing that EB was bleeding as a result of the abuse, she later applied cream to EB and then concealed the abuse, giving perjured evidence on the issue. It is suggested that there is evidence that the paternal grandmother witnessed or ought to have known that the father was abusing TD.
I consider that the use of the phrase 'ought to have known' in the formulation of those allegations to be inapposite. If, as is alleged, the grandmother saw the father on top of the child and saw bleeding caused by that act to the child's genital area, it seems obvious that the grandmother would have known that the child had been abused (particularly since it also alleged that the child told the grandmother what had occurred).
This case has been acquainted with a large number of difficulties. I give more details of them later in this judgment. However, the most clamant are these:
i) These proceedings have been grossly delayed. There has been a succession of orders since September 2003 (enclosure A lists twenty seven orders but that list is by no means complete);
ii) The time estimate was hopelessly inadequate. If I had known that the case would turn into one of this duration with this breadth of enquiry I would not have accepted the invitation that I should take it as a deputy, without discussing the case with the Family Division liaison Judge. The expense of these proceedings has been phenomenal.
iii) The documentation expanded considerably in the weeks leading up to the hearing. The original two bundles of documentation became twelve files of papers, some with over 500 pages in them;
iv) Judicial continuity was lost when His Honour Judge Cotterill retired at the end of 2005. He had the conduct of this case until then. He had taken a firm line against this mother;
v) On 2 nd September 2004, a fact finding hearing was listed before His Honour Judge Cotterill when he was due to determine the truth of the allegations that the father had sexually abused EB. That hearing did not proceed. The order that was made on that day simply records 'Upon the mother not proceeding with her allegation of abuse' and then gives directions in the contact application.
No evidence was heard and there was no judicial determination of the allegations. On 1 st April 2005 an order was made that the 'matter be further listed for a fact finding hearing on the first available date after 16th May 2005 with a time estimate of two days before His Honour Judge Cotterill if possible'—that hearing did not proceed. There was a brief hearing on evidence on 3rd May 2005 when Judge Cotterill concluded that the paternal grandmother was a 'suitable and appropriate person to supervise contact'; the allegations of involvement in sexual abuse were not put to the paternal grandmother at that hearing and the mother's statement on the issue of the suitability of the paternal grandmother as a supervisor made no mention of any such allegations. A further order for contact was made on 1 st June 2005 without evidence being heard,...
To continue reading
Request your trial
-
AS v TH (false allegations of abuse)
...31 (Fam). D (minors) (child abuse: interviews), Re[1998] 2 FCR 419, [1998] 2 FLR 10. D v B and others (flawed sexual abuse enquiry)[2006] EWHC 2987 (Fam), [2007] 1 FCR 369, [2007] 1 FLR E (a minor) (child abuse: injunctions), Re[1990] FCR 793, [1991] 1 FLR 420. H and R (child sexual abuse: ......
-
M v L.A. (1st Respondent) F1. (2nd Respondent) F2 (3rd Respndent) C1 (4th Respondent) C2 (5th Repsondent)
...the judge sees and hears all the evidence." 51 Whilst some judges may find expertise of the kind contemplated here to be helpful (See D v B and Others [2006] EWHC 2987 (Fam)), I agree with Jackson J that, in the light of the introduction of FPR 2010 Rule 25.4, which permits the instruction ......
-
J.b.+b.j. V. The Authority Reporter In The Case Of Child D And Baby K
...case involving charges of sexual offending against a young child. I was also referred to the following English authorities D v B [2006] EWHC 2987 (FAM) where the court was critical of children's words being interpreted without any proper professional guidance or enquiry. The court in D v B ......
-
X v Y
...on a number of different occasions) and the circumstances in which they said it ( D v B and Others (Flawed Sexual Abuse Enquiry) [2007] 1 FLR 1295). Within this context, it will also be important that, when recording an allegation, the child's own words are used and that those speaking with......