Re N (Child Abuse: Evidence)
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE WARD,LORD JUSTICE NEILL |
| Judgment Date | 14 March 1996 |
| Judgment citation (vLex) | [1996] EWCA Civ J0314-2 |
| Docket Number | CCFM1 95.1243/F |
| Court | Court of Appeal (Civil Division) |
| Date | 14 March 1996 |
[1996] EWCA Civ J0314-2
(His Honour Judge Cotterill)
Before: Lord Justice Neill Lord Justice Ward
CCFM1 95.1243/F
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM TAUNTON COUNTY COURT
MS. J PARKER QC & Mr. C. Naish (Instructed by Messrs. Ford Simey Daw Roberts, Exmouth, Devon, EX8 1NR) appeared on behalf of the Applicant
MS. P SCOTLAND QC & MR. R DIXON (Instructed by Messrs. Gilbert & Stephens, Exeter, Devon appeared on behalf of the Respondents
Thursday 14 March 1996
This is an appeal by the father of a young girl, M, who was born on 20th July 1989, against an order made by His Honour Judge M.G. Cotterill dismissing his application for contact to the child.
The Appellant married the Respondent in May 1987. The marriage became seriously unhappy and in July 1992 the father vacated the former matrimonial home and Decree Absolute of divorce was pronounced in April 1993. The circumstances of that breakdown were not explored in any great detail. The mother's general complaint was that her husband was a particularly jealous man who continued to keep watch on her activities even after they had separated. He admitted to his challenging her about an affair with another man who worked at the same bus depot as he did. He expressed concern, for M's sake, about her 'somewhat rumbustious life'. Words were harshly exchanged on Sunday 11th July 1993 when he collected M for contact and chose to comment on the state of the house following the previous night's party. Until that time he had enjoyed contact every Sunday for 4 or 5 hours and at other times when he was off work, including a period of six weeks when he was recovering from a broken shoulder. The Judge found that:-
"That contact seems to have been entirely satisfactory until May of 1993 when ill-defined problems began to arise".
The mother said that M returned from that contact very quiet and pale, clinging to her without saying good bye to her father, leading her to believe that M might be ill. In her statement the mother asserted that on the Tuesday, two days later, whilst at the maternal grandmother's home:-
"M had now apparently got over what was troubling her when she returned home from her contact with the Applicant. I began to talk things over with her to see if I could find out what was wrong, and she quite suddenly came out with the words 'Daddy played with my tuppence' (by which I understood M to mean her vagina). I was absolutely horrified and managed to keep myself in control while I hugged M….."
This remark was apparently repeated to a neighbour but there was no evidence from the neighbour. The following day the mother consulted her solicitors. She had apparently also recollected an earlier remark made by the little girl that 'Daddy's got a hairy willy' which led the child to question whether she would in time develop breasts and grow pubic hair. The solicitors reported the matter to the local authority. The Social Worker confirmed the mother's account which now included not only the allegation that Daddy played with her tuppy but also that he made her sore. The child had an inflamed vulva but this was not unique for she had suffered similarly in the past and had been prescribed the appropriate ointment to cure this soreness. The Child Protection Team arranged an interview with the child to be video recorded. I shall deal with that in detail later. They interviewed the father who denied the allegations levelled at him. No criminal proceedings followed. After the mother had indicated through her solicitors on 22nd July that no further contact was to be allowed, the father made his application on 13th August 1993. The Court Welfare Officer reported in November. Although these were not 'specified' proceedings for the purposes of the Children Act 1989, a Guardian ad Litem from the panel was appointed in April 1994 and he filed his report in September. Having heard the parties, the Court Welfare Officer and the Guardian ad Litem, the Judge made his findings on the issue of 'whether there was indeed sexual abuse of this child and, if so, by whom." He held:-
"To assist me in coming to that conclusion I have had, as I have already made clear, the assistance of the video recording of the interview. More particularly, I have had the evidence of the mother and the independent evidence of the Court Welfare Officer and the Guardian ad Litem. I say 'more importantly' not in disparagement of (the mother), but since it is the view of (the father) that she is hostile to him and is in fact the perpetrator of the complaints by having tutored the child, it is right that I approach her evidence with a good deal of caution, if not scepticism. Having said that, I found her a not unimpressive witness, although there were certain revelations which she said had been made by the child which seemed to have seen the light of day at a very late stage in this history. For example, the references to the child having seen her father's 'hairy willy'."
The Judge was right to approach this evidence with caution, not only because of the father's challenge to the mother's bona fides but also because, generally, per Butler-Sloss L.J. in Re W (Minors)(Wardship: Evidence) [1990] 1 FLR 203 at 214G:-
"Such (grave) allegations (of sexual abuse made in a statement by a child naming a perpetrator) would, unsupported, rarely be sufficiently cogent and reliable for a Court to be satisfied, on the balance of probabilities, that the person named was indeed the perpetrator."
The Judge then considered the video recording and concluded:-
"If matters ended there, that would be insufficient for me to be satisfied to the requisite standard of proof that sexual abuse had occurred."
That finding may be sufficient for the Appellant's purpose but it would not do justice to his case not to refer to some unsatisfactory features of the mother's evidence. According to her statement she recalled M's speaking of Daddy's 'hairy willy' as part of the early "disclosure", rather than "at a very late stage in the history" as the Judge wrongly stated. When this remark is considered in the context of her going on to ask about her own development, the conversation with the father is consistent with a wholly innocent discussion from which it would be impossible to draw any inference of sexual abuse.
The respect in which I suspect the learned Judge found the mother to be unimpressive was her evidence of the 'revelations' which did see 'the light of day at a very late stage in this history'. That was her relating to the Guardian ad Litem, according to him, as part of the first 'disclosures', that M had also said, "Daddy's penis goes hard." She told the Guardian ad Litem that since those disclosures and the contact stopping on 22nd July, no further disclosures were made. In her statement she said that the remark was made 'after M spoke to the police'. Under cross examination she said that the remark was made in the 'autumn time'. She could not adequately explain the contrast between that assertion and what she had told the Guardian ad Litem. There was nothing in the Court Welfare Officer's evidence to suggest that this remark had been conveyed to her. It was not part of the complaint as recorded by the investigating Social Worker. Given the importance of the allegation and the admittedly surprising reference to "penis" as opposed to "willy", the mother's evidence is altogether unconvincing.
The Judge then turned to the video. Contrary to good practice, and most unfortunately, there was no transcript of the recording which was only seen for the first time by the parties and the Guardian ad Litem on the day of the hearing. The Judge said:-
"The interpretation of the video evidence I have not found easy. What took place is conveniently summarised, in part, (in) the bundle of documents before me."
I believe that summary is the one contained in the Social Services records and it reads as follows:-
"M uncomfortable in video suite —did not respond to 'open' questions. (Police Officer) asked her if anything had hurt her 'tuppy' —M said that Daddy had touched her tuppence 'like a toy' and said he has put a stick in her vagina. She demonstrated by opening her pants and her genitals. She said the stick tickled and had prickles on it. M said she had her pants on and Daddy had 'lots of pants on' when he touched her."
The judge described the video as follows:-
"Essentially what appeared in that film, which was of some significant length, was a child of 4 years of age, either ill disciplined or very much ill at ease, who did not spontaneously recount any incident between herself and her father until prompted by the direct questioning by the interviewing officers, who quite clearly were unable to bring her to the sticking point without taking such a course. (Counsel), on behalf of the father, says that their taking such an approach invalidates the responses of the child, but the Guardian ad Litem differs from that view. (The Guardian) is a man of vast experience in social work and, I should say at this stage, a man who greatly impressed me in the presentation of his evidence. It seemed to me that he was cautious and measured in his approach and interpretation. As will appear in due course, I attach a great deal of significance to what he had to say. What he had to say in relation to the video interview was that it is commonly the case that children will shy away from talking about a disagreeable experience spontaneously. It is only when they are, as it were, forced to confront the disagreeable that they will in fact speak about the disagreeable. His view was that the...
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