Re M and R (Child Abuse: Evidence)
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE BUTLER-SLOSS |
| Judgment Date | 21 May 1996 |
| Judgment citation (vLex) | [1996] EWCA Civ J0521-4 |
| Docket Number | FAFMI 96/0319/F |
| Court | Court of Appeal (Civil Division) |
| Date | 21 May 1996 |
[1996] EWCA Civ J0521-4
Lord Justice Butler-Sloss
Lord Justice Henry
Lord Justice Saville
FAFMI 96/0319/F
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
FAMILY DIVISION
PRINCIPAL REGISTRY
(Hon. Mr. Justice Connell)
Royal Courts of Justice
Strand
London WC2
MR. CLIVE NEWTON (Instructed by Surrey County Council, Kingston upon Thames, Surrey, KT1 2DN) appeared on behalf of the Appellant
MISS ALISON BALL QC & MR. DAVID TURNER (Instructed by Messrs Ratip Partnership, First Floor, 6A South Road, Southall, Middlesex, UB1 1RT) appeared on behalf of the 1st Respondent and (Messrs Darlington, & Parkinson, Ealing, London, W5 1QX) appeared on behalf of the 2nd Respondent
MR. ANDREW MCFARLAND & MR. IAN COOK (Instructed by Sheridan & Co, Kingston upon Thames, Surrey, KT2 6PX) appeared on behalf of the 3rd Respondent
This is the judgment of the court. This appeal by the Surrey County Council, the local authority, supported by the guardian ad litem is from the refusal of Connell J on 7th March 1996 after a fifteen day hearing to make full care orders in respect of four children. The judge made interim care orders based upon emotional abuse and neglect but found that allegations of sexual abuse were not proved. He adjourned the case for three months to consider whether to return the four children to their mother and her partner, E. R. who are respondents to the appeal.
History.
The children are—P. born 16th February 1986, now 10, D. born 7th February 1987, both apparently the children of P. M. although there is some doubt as to P.'s paternity, E. R. born 3rd July 1993 aged 2 and A. R. born 21st July 1994 aged one, the children of E. R. The mother of all four children is A. P. The father of P. and D. has played no part in these proceedings.
The mother has two elder children, E. born on the 27th April 1982, just 14, and R. born on the 21st August 1983 who is 12. The father of E. and R. is S. M. who met the mother in 1980 when she was 18. They lived together until August 1984 when S. M. was sentenced to a short term of imprisonment for burglary and perverting the course of justice. On his release from prison he was unable to find the mother and his children who moved to council accommodation in Woolwich. In 1985 the mother met P. M. and they lived together until November 1991 when they separated. The mother began a relationship with E. R. which is still continuing. The Mw. and Mt. children lived with them. Education welfare officers investigated a number of justified complaints about the physical care of the children. In 1992 E. and R. started to stay at weekends with their father who was living with T. W.. In March 1993 they ran away from home to their father and have since lived principally with him. He and T. W. experienced considerable difficulties in caring for them and sought the help of social workers. In November 1993 E. returned to her mother but in January 1994 there was a fire in the mother's flat. The mother has alleged that E.'s father was responsible for the fire. Mr Mw. continued to have problems in the care of R. who has displayed very disturbed behaviour and he has been placed in a children's home from time to time where he remains at present.
Allegations of sexual abuse.
The proceedings, the subject of these appeals, were started by a complaint by R. to T. W. that he had been sexually abused by his mother. His father was told and informed the police. There were then a series of video-recorded interviews of both children. On the 15th February 1994 R. was interviewed by a woman police officer in the presence of a social worker. He alleged abuse by his mother and a T. W. He alleged that his mother touched him and that T. W. touched him, E. and D. He also described the conditions in which he lived with his mother as 'terrible', being dirty and smelly and that he was the victim of excessive punishment by Mr R. He said of his mother that: "I'm still upset with her, I've got a lot of anger with her."
On the 22nd February 1994 E. was similarly interviewed. She complained about the state of her mother's house but made no complaints of abuse. She then returned to live with her father. The mother was arrested on the 23rd February and released on bail but the police did not pursue their investigations.
In April 1995 E. and then R. spoke to T. W. about further abuse. Both children were again interviewed by the police. In her interview E., for the first time, made allegations of indecent touching by her mother of herself, D., P. and R.. In his interview, R. described abuse by his mother and anal penetration by Mr R. and T. W. of himself, E., P. and D. The mother, E. R. and T. W. were arrested and held in custody. They denied all the allegations. The mother was charged with two offences of indecent assault and E. R. and T. W. each with two offences of buggery but all the proceedings were subsequently discontinued. The four younger children were placed with two sets of foster parents with whom they remain.
Medical Evidence.
All six children have been examined for any relevant physical signs which might be consistent with the allegations of serious sexual abuse. The examinations of E., R., E. and A. showed no physical signs. On the 23rd May 1995 P. was examined jointly by Dr Lauder and Dr Holden who observed a wedged-shaped healed tear at the 9.0'clock position in the external anal sphincter. The fissure was not recent and had occurred between three months and eighteen months previously. D. was examined by the same two doctors on the same day and was found to have three healed fissures in the external anal sphincter. Upon general examination she was seen to be constipated or more accurately faecally loaded. Neither child had any other signs of bruising or recent injury. Dr Lauder and Dr Hamner gave evidence at the hearing.
Interviews.
R. has had four video-recorded interviews, E. three, P. 4, D. three and P. and D. a joint interview. In contrast to the detailed allegations of R. and E. implicating the mother, E. R. and T. W., neither P. nor D. has made any allegation of sexual abuse against any of the adults. In addition to women police officers and social workers, two consultant child psychiatrists have taken part in some of the interviews. Dr Baker interviewed both P. and D. with Dr Heller watching the interviews. Dr Heller interviewed R. in January 1996. In addition two further consultant child psychiatrists have been involved, Dr Briscoe who read the papers and saw the video -recordings and Dr Hodes who at one time had both R. and briefly E. as his patients. Dr Baker, Dr Heller and Dr Hodes gave evidence at the hearing and Dr Briscoe's report was before the judge.
Judgment.
The judge gave a lengthy and careful judgment. He set out the salient features of the interviews with the four children and the allegations made which was, as he pointed out, the foundation of the local authority's case. He considered how they came to make the allegations to T. W. He found:—
"R. is known to be untruthful and to be capable of carrying out extended deceptions. For example, he managed to continue his life under an assumed identity for at least a month in August 1995. He is also a very disturbed child. Further, as his statements in interview make clear, he is very angry towards the adults and in particular towards his mother. He believes that she failed properly to look after him and he is jealous of what he sees as her preference for Mr R..
Rather less is known about E., although she too alleges ill treatment—sexual abuse apart—at the hands of her mother and Mr R.. This might give her a motive for invention. In short, it is a matter of great concern that these two children should have made such specific and serious allegations of sexual abuse at the hands of these adults but, if the case depended upon their evidence alone, which is hearsay evidence as previously indicated, it would not in my judgment be sufficient to prove these serious allegations against these adults to the requisite standard."
He then turned to consider the other evidence in the case. He concluded that the medical evidence was:—
"consistent either with sexual use of these children or, alternatively, with constipation. The findings in respect of D. are noteworthy but they do not eliminate the possibility of constipation."
He looked at the circumstantial evidence about R. and E., the manifestations of unhappiness at home and the treatment of them by the mother and E. R.. He set out in some detail the psychiatric evidence about the interviews, the concerns of the psychiatrists, the significance attached by them to answers given by each of the children and their expert opinion that these children have been the subjects of sexual abuse at the hands of their mother, E. R. and T. W. He saw all the video-recordings. He set out the explanations from the mother and E. R. both of whose evidence he found in many ways to be unsatisfactory.
In coming to his final conclusion about the allegations of sexual abuse he carefully reminded himself that the balance of the psychiatric evidence was unanimously to the effect that sexual abuse had probably occurred and he said:—
"Given the expertise of those expressing this view, in my judgment this is an important aspect of the evidence."
He then considered pointers to the contrary and concluded:—
"In all the circumstances, therefore, I am not satisfied on the balance of probabilities that these serious allegations of sexual abuse are proved against these adults,contrary to the submission made by Mr Newton on behalf of the local authority, that...
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