JEG v IS E J G-S (2nd Respondent (by her Children's Guardian)
| Jurisdiction | England & Wales |
| Judge | The Hon. Mrs Justice Russell |
| Judgment Date | 13 February 2014 |
| Neutral Citation | [2014] EWHC 287 (Fam) |
| Court | Family Division |
| Docket Number | Case No: FD 09 P 01859 |
| Date | 13 February 2014 |
[2014] EWHC 287 (Fam)
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
IN THE MATTER OF E J G-S (Born 06.02.04) (A Child)
AND IN THE MATTER OF THE SENIOR COURTS ACT 1981
Royal Courts of Justice
Strand, London, WC2A 2LL
The Honourable Mrs Justice Russell DBE
Case No: FD 09 P 01859
and
Christopher Hames (Instructed by Dawson Cornwell) for the Applicant
David Marusza (Instructed by Brethertons) for the Respondent
Mark Jarman (Instructed by Cafcass Legal) for the 2 nd Respondent
Hearing dates: 7 th February 2014
Introduction
This case concerns a young girl, E, who has just turned 10, as she was born on the 6 th February 2004 and I heard this case on the 7 th February 2014. E's mother is IS, a British citizen, who is an ethnic Russian originally from Kazakhstan. Her father is EG a British national. Her parents met in 2000, their relationship lasted until August 2005 when EG left the family home. E has not seen her father since July 2009 when her mother took her to Russia; ostensibly for a holiday visit she has now told me while giving evidence that she removed E from the jurisdiction having already formed the intention to remain in Russia and to deny E contact with her father.
It is the case of IS that E has been sexually abused by her father at some time during the period between 2005 and 2008 when she was having contact. These allegations which her mother and maternal grandmother say were disclosed to them by E were investigated by the Metropolitan Police and by Westminster Social Services in early 2009 and both investigations concluded that there was no basis for taking the matter further. E had two ABE interviews, one on the 16 th January 2009 and one on the 10 th March 2009. In neither interview did E make any disclosures of sexual abuse. Following the 2 nd interview and an order of the court for a section 7 report (ordered by District Judge Bowman on the 20 th February 2009) Westminster Social Services filed a letter with the court which said, among other things, that they did not believe that the information provided by E on its own supported an allegation of sexual abuse, the questioning and taping by her mother of E raised questions regarding the reliability of this information, and that IS had stated the intention of obtaining a child psychologist [report] solely to further investigate the allegations which they would not support as they believed further investigation was not necessary. They concluded that they did not believe that EG posed a risk to his daughter.
Prior to the allegations of sexual abuse, around the 23 rd August 2008, it was alleged that E had complained of her treatment at the hands of her father's then girlfriend CC. Specifically E complained that CC shouted at her and that she had hurt E when she had washed her. E complained of soreness in her genital area. This was investigated by Westminster and in their Core Assessment report they concluded that there were no concerns as to physical/sexual abuse by CC but that it was likely that E became sore around her bottom when being washed by CC.
Following E's retention in Russia, on the 25 th August 2009, EG issued an Originating Summons in wardship and orders were made to locate E. Meanwhile IS claimed refugee status in Russia and E started school there. Nearly two years later, in June 2011, having found out that E and her mother were in Moscow, her father issued an application for contact: at the same time IS sought to have him deprived of his parental rights. There followed proceedings in the Butyrsky District Court in Moscow granting EG monthly contact. IS appealed against that order and her appeal was dismissed.
During the currency of the Russian proceedings IS claimed that E had made further disclosures to her about sexual abuse by neighbours of her father's which took place in a garage and in his flat. IS took E to be interviewed by an educational psychologist, Ana Anatolyevna, and she produced a transcript of this interview which was put before the court in Moscow. This report and that of the centre in which Ms Anatolyevna was based was the subject of criticism by the District Court both as to methodology and as to the competence and qualification of the authors of the report to reach the conclusions they did; a finding that was not over-turned on appeal.
Contact was ordered in Russia. IS was subsequently found not to have complied with the order and to have evaded the court bailiffs. She removed E from school and did not take her to the Uchastie Centre where contact was ordered to take place. The contact order was varied on 24 th April 2013. IS removed E from school and home-tutored her. Eventually on the 4 th December IS returned to England with E.
Notwithstanding that none of the evidence filed in the previous proceedings (set out below) had been found by those investigating the allegations to support a basis of sexual abuse, IS seeks findings in this court. She also seeks a finding that CC physically abused E. EG seeks a finding that IS fabricated the allegations to undermine contact and has caused E "serious emotional harm."
Law
These are civil proceedings, the burden of proof is on the party making the allegations. The standard of proof is the balance of probabilities – "neither more nor less" – to quote Baroness Hale in Re B (Care proceedings: Standard of Proof) [2008] UKHL 35, [2008] 2 FLR 141. I may make a judicial inference upon facts that are themselves established and the balance of probability, and here I make reference to A local authority v A (No.1) [2010] EWHC 28 (Fam) also reported [2011] 2 FLR at 137, and I will do so in the course of this judgment. Once a decision is reached on the facts it will form the basis of any decision as to what orders should be made in respect of E. All decisions regarding E will be based on the paramouncy principle; that is to say her welfare is paramount.
The allegations made by IS are of a very serious nature but that does not alter the standard of proof. As Baroness Hale said in Re B there is no logical connection between seriousness and probability. I keep that in mind as I do the need to consider all the evidence with care taking into account the totality of the evidence before the court including the background to the allegations, their genesis and the conduct of the parties. I shall set out some of the evidence in the narrative in this judgement, which should be read as a whole, forming as it does the path I followed through the history of the case to reach my conclusions.
Evidence
I have heard limited evidence in this case as agreed by the parties and have only heard the oral evidence of IS, LN and EG, the mother, the maternal grandmother and the father of E. I heard this evidence, again by agreement, over one day on the 7 th February 2014. I have read the statements of the parties contained in the wardship bundle and in the bundle prepared for the hearing on 18 th March 2009. I have read the documents, reports, letters and transcripts contained in both bundles, and the translations of the decisions of the Russian courts which were reached when IS retained E in Russia between July 2009 and December 2013. I have read the reports prepared for those hearings and a transcript of interviews E had with a educational psychologist on the 14 th July and 25 th of August 2011. I have not heard from the psychologist, Ms Solovyeva, upon whose evidence IS relies.
Allegations
IS makes the following allegations which were set out in a schedule prepared for the final hearing. There are 12 allegations in total.
i) The first dates from 23 rd August 2008. It is alleged that E was sensitive in her genital area and said that CC had hurt her there when she had washed her. The evidence for this is based on what E said to her mother; to the social worker who prepared the core assessment and to a teacher at school. Other than IS the court has not heard evidence from any other person to whom this was reported and has not heard from CC.
ii) The second allegation is that E disclosed she played "bed games" with her father. She is said to have told her grandmother, who then reported it to her mother. I have heard from LN the maternal grandmother who said that E placed her hands on her grandmother's chest, abdomen and genitals when she got in bed with her in the morning saying they should play a clock game.
iii) The third is that EG played a sexualized game with E in the bathroom called "Matchy Scratchy" whereby the father would light matches and drop them in the bath while she scratched his genitals. It is said by IS that E told her about this in February 2009. There is reference to this in the letter from Westminster dated 13 th March 2009; E is reported as saying she played this game one time, her father lit a match in the bathroom and she tickled his bottom. She pulled his trousers down and she saw his bottom; they giggled and he left. IS questioned E about this and taped the conversations which she transcribed. She did not produce those transcriptions in evidence.
iv) The fourth: E told her mother that he "has big ears, he can hear me" and told her mother she was referring to her father, she told her mother if he heard he would put her in a big rubbish bin and take her away. There is no evidence in addition to that of IS.
v) The fifth: E told her mother that she would scratch her father's bottom whereupon he would run to the toilet as he needs a "wee". There is no evidence in addition to that of IS.
vi) E told her mother that EG gets into the bath with her sometimes with his pants on and sometimes not. There is no evidence in addition to that of IS, and on any view this could not on its own constitute an allegation of sexual abuse.
vii) The...
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