Re B and O (Children)
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE HUGHES,LORD JUSTICE LATHAM,LORD JUSTICE CARNWATH |
| Judgment Date | 25 May 2006 |
| Neutral Citation | [2006] EWCA Civ 773 |
| Court | Court of Appeal (Civil Division) |
| Date | 25 May 2006 |
| Docket Number | B4/2006/0186/A, B4/2006/0186, |
[2006] EWCA Civ 773
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM YORK COUNTY COURT
(HIS HONOUR JUDGE WOLSTENHOLME)
Royal Courts of Justice
Strand
London, WC2
Lord Justice Latham
Lord Justice Carnwath
Lord Justice Hughes
B4/2006/0186/A, B4/2006/0186,
B4/2006/0242 and B4/2006/0242/A
MR R ANELAY QC (instructed by Messrs Crombe Wilkinson, 19 Clifford Street, York, YO1 9RJ) appeared on behalf of the Appellant Father.
MR S BELLAMY QC and MS J MATTHEWS (instructed by Messrs Harland & Co, 18 St Saviourgate,York, YO1 8NS) appeared on behalf of the Appellant.Mother
MR C NEWTON QC (instructed by Messrs Chadwick Lawrence, 54 Bradford Road, Dewsbury, WF13 2DY) appeared on behalf of the children by their guardian ad litem.
MISS E HAMILTON QC and MR J HAYES (instructed by North Yorkshire County Council, Legal Services Department, County Hall, Northallerton, OL7 8AD) appeared on behalf of the Respondent Local Authority.
1. The mother and father appeal against findings of fact made by the judge in care proceedings. If they will forgive me, I shall refer to them simply as mother and father. The allegation was that father had interfered sexually with his own daughter, aged five, nearly six, and with another girl who was a friend and neighbour of hers, about a year younger. As against mother, the allegation was that she knew of father's actions and failed to protect her daughter. The judge conducted a fact-finding hearing over the period of some 14 days, unavoidably punctuated by an adjournment of four months. He concluded that those allegations had been made out. Both father and mother challenge those findings.
Father and mother are 30 or just rising to that age. They are not married but they have been together as a couple for something like 12 years. They have four children. There is a girl, L, 12; two boys, T and J, who are 9 and not quite 8; and the youngest child, S, is a girl who was born on 27 May 2000. She is thus 5, rising 6, and she is the daughter about whom the judge had to determine the allegation.
Mother had a friend called Danielle. Danielle lived with her partner across the road. She herself had three children, of whom the middle one was a girl born on 1 August 2001, K. K was a playmate of S and they spent quite a lot of time together in each other's houses, and K was the second girl about whom there were allegations for the judge to determine. K has a cleft palate; her speech is not easy to understand, at least for strangers. K's elder brother J was five. There was no complaint of interference with him, but at a late stage he became the source of a further piece of evidence going to the allegation of interference with K. Another neighbour and friend, particularly of Danielle, was called Tracey. She also had children of a similar age, one of whom was a boy called T, who was five or thereabouts.
The complaint about father surfaced in the middle of March 2005. It began with Danielle finding S playing sexually with her own daughter, K, in the bathroom at her home. Over the next few days the anxiety generated by that discovery broadened into an allegation allegedly made by K that father had touched her. At different stages the general practitioner, the health visitor, social workers and before long the police were brought in. The police and the social workers saw all four children of mother and father, including of course S, as well as seeing K. By the end of the investigation it was the local authority case that father had interfered both with K and with S.
By the time the matter came before the judge in August 2005 the principal evidence which he had to consider fell into the following broad categories: 1) physical findings on medical examination of the two girls; 2) the evidence of the doctors as to the reaction of those girls to intimate physical examination and of the social worker as to the reaction of S when questioned on intimate matters; 3) incidents of sexualised play; 4) what K said (a) to her mother Danielle and her friend Tracey on Tuesday 15 and Wednesday 16 March, (b) to Tracey on 22 March, (c) to the police officer, Detective Constable Knubley on 14 April and (d) in a video taped interview conducted by the police on 19 April; 5) what S said (a) to the social worker and Detective Constable Knubley on 18 March, (b) briefly to her foster mother after a failed video interview, and (c) to the police officer on 12 April when a further video interview was attempted but failed; 6) what K's brother J said some months after the event to his mother Danielle and subsequently to police officers in a video taped interview. There was in addition before the judge in the case of mother 7) evidence that she had twice in her own past been the object of sexual interference, once as a child and once as an adult and had been inhibited in resisting or complaining about it.
Lastly, of course, the judge had to consider 8) the evidence of both father and mother. Sometimes such evidence considerably weakens and on other occasions it significantly supports the other evidence. In the present case the evidence of the parents did not strengthen the case against them nor did it significantly weaken it. The judge found that they were not truthful on a number of matters. That properly informed his view of the strength of some of the evidence against them and his assessment of their denials. It was not however a case in which their untruthfulness or any other part of their evidence provided any affirmative independent evidence, either that father had abused the children or that mother knew of it, and the judge did not find that it had.
The focus of the appeals of both parents is the judge's approach to the evidence of what the children said: points 4, 5 and 6 as I have enumerated them above. Both parents accepted before the judge, and accept now, that in the case of K the right conclusion was that somebody had interfered with her sexually. The same concession is not formally made in the case of S, but in this court, as distinct from below, neither parent makes any serious challenge to findings which are based upon points 1, 2 and 3 as I have enumerated them. What is contended here is that for different reasons the different sources of what the children are alleged to have said are so unreliable that the judge was plainly wrong to draw from them any conclusions of sexual abuse or at least any conclusions as to who had done it. In consequence, the argument before us is concentrated upon those sources of evidence.
The judge, however, had to assess the evidence as a whole. It is convenient to begin with what is, now at any rate, not in dispute. Within a few days of the suggestion that there had been abuse, both girls were examined medically. The judge had the evidence of no less than three experienced doctors. One was the original medical examiner, who alone had seen the girls. Second was a doctor extremely experienced in allegations of child abuse, instructed by the guardian, and the third, also well-experienced, was instructed by father.
In the light of the criticisms which we have heard of the judge's reasoning, I should perhaps note that it is accepted here that after hearing all three doctors at considerable length, occupying many pages of transcript, the judge summarised the evidence correctly, asked himself the right questions and arrived at wholly justifiable conclusions, all of which he distilled into about a dozen paragraphs.
The conclusions were these: K had a healed tear in her hymen. Her anus was abnormal with irregular margins and quite deep folds together with venus congestion. Those findings were supportive of, although not conclusively diagnostic of, penetrative trauma to both vagina and anus. When she was examined she adopted the frog leg examination position, which is uncomfortable and unnatural as well as immodest, with abnormal readiness and in a most unusual way. The possibility that such compliance could be the result of medical examinations conducted for her cleft palate when she was about 12 months old was rejected; rather her behaviour suggested that she was accustomed to giving access to her vagina.
S had a possible healed tear to her hymen, but since the doctors were divided as to whether or not it might also be a naturally-occurring irregularity, the judge felt that it was not possible to say, on the balance of probability, that it was indeed a tear. However, she too adopted the examination position with unusual readiness and her behaviour was unusually immodest, in a way that suggested that she had been abused sexually. Independently of the doctor's observation of that behaviour at the time of his examination, the social worker noted when this girl was seen by herself and the lady police officer that she spoke about her genital area with a most unusual lack of inhibition. That observation was quite distinct from the content of that interview, which raises different questions to which I shall have to return.
On Thursday 10 March S came to tea with K. Danielle found them together in the bathroom. K was lying on her back with her feet on the floor and knees parted and S was prodding and poking at her vagina. When Danielle told them off, S responded that it was all right, her brothers did it to her all the time. The position of K as described by Danielle was similar to the examination position in which the doctor later observed her to be unusually comfortable.
On Saturday 12 March S was again visiting Danielle's home. Although Danielle had told the girls they were not to go upstairs and believed that...
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