FD v A Local Authority
| Jurisdiction | England & Wales |
| Judge | Lord Justice Baker,Lord Justice Nugee,Lord Justice Peter Jackson |
| Judgment Date | 16 February 2021 |
| Neutral Citation | [2021] EWCA Civ 149 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: B4/2020/1976 |
| Date | 16 February 2021 |
In the Matter of the Children Act 1989
And in the Matter of O (A Child) (Judgment: Adequacy of Reasons)
[2021] EWCA Civ 149
Lord Justice Peter Jackson
Lord Justice Baker
and
Lord Justice Nugee
Case No: B4/2020/1976
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE FAMILY COURT AT NOTTINGHAM
HH Judge Lea
NG19C00293
Royal Courts of Justice
Strand, London, WC2A 2LL
Beryl Gilead (instructed by Rotheras Solicitors) for the Appellant
James Cleary (instructed by Local Authority Solicitor) for the First Respondent
Helen Knott (instructed by Hawley and Rodgers) for the Second Respondent
The Third Respondent was not represented at the hearing
Hearing date: 26 January 2021
Approved Judgment
This is an appeal against findings made against the appellant father that he sexually abused his daughter O.
At the conclusion of the hearing of the appeal, this Court indicated that we would be allowing the appeal and remitting the matter to be reheard by a different judge to be allocated by the Family Division Liaison Judge. This judgment sets out my reasons for agreeing to that outcome.
Background
O was born in January 2016. By then, her parents had already separated, on the mother's case because of domestic abuse. O lived with her mother and had some contact with her father, although the judge later found that, despite her assertions to the contrary, the mother had never been supportive of the father's contact.
In November 2018, the mother stopped contact alleging that O had made comments and gestures which indicated that she had been sexually abused. The father denied the allegations and himself reported the matter to the police. After the mother and maternal grandmother had informed the NSPCC about the allegations, the local authority instigated an assessment under s.47 of the Children Act 1989 alongside the police investigation. They concluded that O showed no signs of anxiety or distress when talking about her father, that some of the information provided by the mother had been contradictory, and that there was “very little evidence to suggest that O is experiencing sexual abuse in [the father's] care”. According to the social worker, the mother and grandmother were not reassured by the outcome of the investigation. The social worker expressed concern that that they may be projecting their anxieties onto O.
The father made an application for contact. At the first hearing on 19 February 2019, the court made a child arrangements order for O to live with her mother, granted the father parental responsibility, and directed interim contact at the local contact centre. On 30 April, the Cafcass officer reported that this contact had gone well and recommended that it move into the community. In her report, the Cafcass officer recorded that the mother appeared to have a genuine belief that the father had sexually abused O. She reported that staff at O's nursery had observed that the mother could be anxious about O and needed reassurance. Echoing the earlier comment by the social worker, the Cafcass officer expressed concern that her anxieties “may be transferred to O and cause her emotional harm”.
Following a further hearing, contact moved into the community. Between 11 May and 27 July, the father saw O on eleven occasions in a variety of locations. Save for two occasions, 22 June and 27 July, they were accompanied by other members of the family, although there were points during the visits when the father took O to the toilet alone. According to the mother's evidence, after a contact visit in May, she found what she believed to be a pubic hair on O's buttocks. On 27 July, the father took O swimming on his own. According to the mother, six days later, on the evening of 2 August, she noticed blood on the toilet paper after wiping O's bottom. The following morning, she telephoned the GP's surgery. The record of her call reads: “blood from back passage, ongoing case re dad sexually abusing her, has had sore vaginal [sic] and bottom recently, has visit with dad today”. An appointment was made with a GP, Dr T, later that day. I shall consider below the GP's account of her examination of O.
O then left the room and sat with her grandmother while the doctor spoke to the mother. She said that O had been complaining of a sore bottom for two weeks and had been refusing to wear her underwear to avoid irritation and had asked for Sudocrem to be applied. The mother said that after O had used the toilet the following evening, she had noticed a small amount of fresh blood on the tissue. O had said that she had a “pain inside my bum”. She then told the doctor about the allegations of sexual abuse and the outcome of the previous investigation. She said that she had been told by her lawyer that, if she did not comply with the contact arrangements, she would be perceived as being obstructive and could risk losing custody of O. She also alleged that, after contact had resumed between May and July, O had said things like “Mummy, eat my did-did and I will give you a sweetie”, did-did being the word O used for her genital area. On another occasion, O had been playing and said “Mummy, do you want to dive in my bum, like daddy?”
Following the examination, Dr T referred the matter to the local children's sexual assault service and two days later, on 5 August, O was examined again by Dr McLeod, a paediatric forensic physician, who concluded that O had signs indicative of penetrative anal abuse. Again, I shall consider Dr McLeod's evidence about the examination later in this judgment.
In the days following the examination, there were several conversations between O and her mother in which, according to the mother, O made further allegations about her father hurting her. The mother made notes about these conversations which were later submitted in evidence. On 24 August, when O asked why she could not see her father, the mother (according to her notes) replied that he had been a bad man. It was the mother's case that in saying this she had been following advice given by a counsellor. When O said “no, he buys me treats”, the mother replied that “people can still do bad things even though they buy you treats”. Later that day, when O asked “why Daddy had been a bad man”, the mother asked if she remembered what she had told her about Daddy smacking her. O replied yes and said he “whacked” her head and grabbed the back of her knees. The mother asked if she remembered what she had told her about what Daddy did to her bum. O said: “Daddy does dive in my bum and he does this to my did-did and dives in very, very much and it hurts”. When the mother asked her when the last time had been, she said that it had been when they went swimming, and in answer to a further question said it had happened when they were getting dressed.
By the time of this reported conversation on 24 August, the mother knew that the police had arranged a formal interview for O under the procedure set out in “Achieving Best Evidence in Criminal Proceedings: Guidance on interviewing victims and witnesses and guidance on using special measures” (“ABE”). That interview took place six days later on 30 August. It is common ground between the parties (except the mother) that no material statements were made by O during this interview.
On 6 September, Dr McLeod examined O for a second time. Her evidence about that examination is considered below.
Despite the very serious concerns raised as a result of Dr McLeod's medical examinations, the local authority did not take immediate action to protect the child. An initial child protection case conference was not convened until 10 October 2019. As a result of that conference, O was placed under a child protection plan under the category of sexual abuse. The conference chair recorded “grave concern that the person or persons who has or have sexually abused O are not yet identified and therefore nobody could be ruled out as being the perpetrator. She is at risk of ongoing sexual harm.” Following the conference, the local authority decided to start care proceedings, but before its application was filed a further hearing in the private law proceedings took place on 15 November 2019 at which the court made an interim child arrangements order providing for O to live with her paternal grandmother, with each parent to have contact over the following weekend supervised by the grandmother. At a further hearing three days later, the court ordered the local authority to file a report under s.37 of the Children Act 1989 and made an interim care order under s.38 on the basis of a care plan for O to remain living with her grandmother, with contact thereafter to be supervised by the local authority.
On 21 November, O had supervised contact with her mother. During the visit, the mother took O to the toilet. She later alleged that she had found liquid whilst wiping O's bottom which she suspected to be semen. The mother subsequently presented the tissue to the police and suggested that O had been sexually abused by her father during contact supervised by the grandmother over the previous weekend. As a result, a further medical examination was arranged for the following day but O was deemed too distressed for the examination to proceed. Analysis of the tissue subsequently revealed no semen and that the liquid had come solely from O's body. The police had arrested the father following the mother's allegation but took no further action.
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