Re R (A Minor) (Child Abuse: Access)
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE STEPHEN BROWN,LORD JUSTICE BALCOMBE |
| Judgment Date | 19 May 1986 |
| Judgment citation (vLex) | [1986] EWCA Civ J0519-6 |
| Court | Court of Appeal (Civil Division) |
| Date | 19 May 1986 |
| Docket Number | 86/0492 |
[1986] EWCA Civ J0519-6
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM AN ORDER OF MR JUSTICE LINCOLN
Royal Courts of Justice
Lord Justice Stephen Brown
Lord Justice Balcombe
86/0492
MISS J.N. PLANGE, instructed by Messrs Norton & Coker, appeared for the Appellant (Mother).
MRS ROZANNA MALCOLM, instructed by Messrs Strachan St. George, appeared for the Respondent (Father).
This is an appeal from an order of Mr Justice Lincoln made on 24th January this year. The learned judge then heard a summons under the Guardianship of Minors Act in relation to the care and control of a little girl called Dionne who was born on 21st April 1982. She is now just over four years of age. The application for custody, care and control was brought by her mother, Miss Russell (called "Miss R" in these proceedings). The father, Anthony Davis (Mr "D"), was resisting the mother's application. He also had issued a cross-summons for care and control, and each party in any event was seeking access.
The facts which gave rise to the proceedings can be shortly stated. The mother is a single woman, now 26 years of age, living in London in a two-bedroomed flat, and the little girl was born as the result of a casual relationship with the father. The father in fact is a man of 50 years of age, who has been married for some 20 years and still lives with his wife and two children. He was at all times in a completely separate household from that of the mother. In fact the learned judge accepted the mother's evidence that it was only when she had become pregnant that she learned that the father was in fact a married man. She had met him at a time when the father's wife was temporarily away from home.
After the birth of the little girl Dionne the father regularly saw her, and indeed for the first year, the evidence was, that he saw his daughter at least once a week; he himself claimed that it was more often than that.
In the summer of 1983, when the little girl was just over a year old, the father began to keep the little baby overnight at his home about once a month. In the spring of 1984 the father's wife went to visit relatives in Jamaica and was away for some six months, leaving the father on his own. Dionne's mother was not aware that the father's wife had departed, and she was therefore not aware that the little girl Dionne was sleeping in the father's house when his wife was not present. Towards the end of October 1984 the mother became concerned at certain behaviour of the little girl Dionne. She would wake up and begin to pant and groan and say: "Daddy don't; no, don't do it." The mother did not understand at first what was the cause of this behaviour. She was described by social workers (and the learned judge also acknowledged that description as a correct one) as being a quiet woman—placid—one who did not over-react in any way. So that at first nothing happened as a result of the child's apparent disturbance.
At the end of October 1984 on one occasion when the little girl had returned to her mother after staying with her father her genital area appeared to be dirty and there was a nasty smell. The mother confronted the father with an accusation: "Have you been mucking about with Dionne", she said, and he replied "No". It is right to say that he has always denied having interfered improperly with the child. Nevertheless, that was not the end of the matter, because the father took Dionne away for three nights in November 1984, and there came a time when the mother became more concerned about the condition of the child and in January 1985 she took action about it. She went to her general practitioner who saw the child's condition. He noted redness and roughness of the vagina. He referred the little girl to the North Middlesex Hospital. There she was seen by a doctor who noted that her hymen had been disrupted to some extent. I should say that at this stage the little girl was two and a half years of age. The doctor at the North Middlesex Hospital concluded that sexual abuse was a possible explanation, and indeed no alternative explanation had been provided. As a result of his examination a police doctor was called to examine the girl, and he found that the hymen was dilated and he came to the conclusion that there was evidence of sexual abuse. That led to the father's arrest. The matter was investigated, but the police reached the conclusion that no charge should be preferred against the father and he was released. It has to be borne in mind, of course, that in a case in the Criminal Courts of that nature corroboration would be required.
The father, as the learned judge found, thereafter relied upon the fact that he had been arrested, but not charged and released as pointing strongly to his complete innocence.
Subsequently there was a case conference with the health visitor involved, and the mother denied access to the father to the little girl Dionne. In the presence of the father on 26th January 1985 the little girl made an allegation: "Daddy bites the pokey"—that was her childlike description of her private parts. After that there were occasions in February when the father arrived seeking access and there was shouting and swearing with resultant distress to the little girl. The mother then issued the summons in these proceedings on 18th February 1985.
On 7th March 1985 a circuit judge made an interim order for supervised access by the father for two hours each month. Apparently that access at first proceeded smoothly, but, for reasons which are not in any sense the fault of the father, he was not able to see the child thereafter as the learned judge had ordered. There was however infrequent access until October 1985.
In the course of the proceedings the father, acting upon advice given to him by his legal representatives, dropped his cross-claim for custody, care and control of this little girl, and continued the proceedings simply on the question of access. The learned judge had to deal with the very serious allegation that this child had been sexually abused by her father over a period of time at a time when she was very young. The learned judge in the course of his judgment accepted the mother's evidence, preferring it completely to that of the father. Indeed, he said of the father that he appeared to him to be "prepared to say anything quite recklessly and without thought." At page 4 of the judgment, letter H, he said:
"I regret to have to say such things about any witness but it has never been plainer to me in any case that I have tried in this Court than it has been in these proceedings. I accordingly accept the mother's version of the condition of her daughter on her return from the November access."
He then proceeded to make findings about these serious matters. At page 11, just below letter C, of his judgment he said:
"In my judgment, this father is concerned more about himself and the accusations made against him. He was totally preoccupied with...
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