D (Children) [2005] EWCA Civ 825

[2005] EWCA Civ 825Case No B1/2004/2437
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
Venue ON APPEAL FROM LEEDS COUNTY COURT
Her Honour Judge Cahill Q.C.
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 6 th July 2005
Before
LORD JUSTICE WARDLORD JUSTICE CLARKESIR WILLIAM ALDOUS
D (Children)
Hearing Hearing dates : 15 th April 2005
Mr Peter Collier QC and Kate Buckingham (instructed by John Wood Partnership) for the Appellant
Miss Eleanor Hamilton QC and Mr John Hayes (instructed by Kirklees Metropolitan Council) for the Respondent
Judgment
Lord Justice Ward :
Introduction.
[1]This is a father’s appeal in care and adoption proceedings to which a reporting restriction applies relating to his four children S, who bears the same first name as his father, born on 10th November 1988 so now 16 years old, L (I shall call her “L (the elder)”) who was born on 30th October 1993 now 11 years of age, L (“L (the younger)”) born on 4th September 1997, now 7 years of age and T born on 16th December 2000 now 4 years old. They are the children of his marriage to the children’s mother. He is 42 years old, the mother is 35. The nature of the case in the court below.[2]The proceedings were heard over 16 days by Her Hon. Judge Cahill Q.C. in the Leeds County Court. The hearing covered both aspects of care proceedings, first the fact finding enquiry into whether the care threshold set by s.31 of the Children’s Act 1989 had been crossed and if so, secondly, the so called disposal aspect of the case concerned with deciding what orders should be made. Here the fact finding enquiry was given structure by adopting the commendable practice of the local authority’s providing a “Schedule of Findings sought by the Local Authority (s.31 the Criteria)”. It was settled by Mr John Hayes, junior counsel for the local authority, who made it plain that it was intended to be a summary of the detailed information contained in the as then not yet complete statements filed on the local authority’s behalf. To give the flavour of the case I must recite the nature of the harm alleged:- “Sexual Harm. 1. Both parents have subjected S, L and L to repeated acts of sexual abuse including:a. sexual intercourse;b. indecent touching;c. oral sex;d. exposure to pornography;e. exposure to an adult sex object;f. participation in a sex game involving family members removing all of their clothing.g. sexual activity between the adults in the children’s presence;h. sexual abuse of one child in the presence of one or more of the other children. 2. S has sexually abused his sisters and the parents have failed to protect L and L from such abuse. Physical Harm 3. The children have suffered numerous incidents of physical harm through a combination of: a. physical assault; b. neglectful parenting; c. inter-sibling aggression. Emotional Harm 4. The children have suffered emotional harm by reason of all the matters set out above. 5. Further, the children have suffered emotional harm through exposure to adult conflict. The parents’ relationship is characterised by repeated acts of domestic violence. The father is controlling and physically aggressive towards the mother and makes excessive sexual demands on her. In October 2003 the mother reported that she had been raped by three men and the father’s response, when told, was to react with verbal abuse and threats towards her. The Children’s Presentation. 6. The children have experienced highly dysfunctional and damaging parenting. Their needs have not been met and they have suffered delayed development and significant behavioural difficulties as a result of the parenting that they have received. 7. S presents as a child who has been very severely damaged by the parenting that he has received. Sexual abuse perpetrated on him by his parents has caused him to behave in a sexually abusive manner towards his sisters and other children. He engages in sexualised language and behaviour. He is [a] physically aggressive child and is isolated from his peers. He has committed an act of animal cruelty, causing the death of a cat. 8. On their admission to foster care, L and L wore grubby clothing and their teeth were dirty. They engaged in aggressive and sexualised play and language. At school L (the older) is a quiet and withdrawn girl and both girls engage in sexualised behaviour. Both girls have statements of special educational needs. 9. T has failed to thrive and is behind in his development. The parents have missed appointments to monitor his health and development. T is at risk given the abusive experience of his older siblings.” a. sexual intercourse; b. indecent touching; c. oral sex; d. exposure to pornography; e. exposure to an adult sex object; f. participation in a sex game involving family members removing all of their clothing. g. sexual activity between the adults in the children’s presence; h. sexual abuse of one child in the presence of one or more of the other children. Physical Harm a. physical assault; b. neglectful parenting; c. inter-sibling aggression.

Physical Harm

[3]The parents accepted that S could not be returned to their care though they wished to have contact with him. They sought the return of the other three children and, if that were not possible, they asked for contact as least once a month with L and L. The guardian supported that proposal for contact with L and L provided, however, that there were no findings of direct sexual abuse. The parents opposed the plans to free T for adoption. The judgment, the orders drawn and the nature of the appeal.[4]Judgment was given on 15th September 2004 and the order was drawn in these terms:- “Upon hearing counsel … And upon the court finding the threshold criteria in s.31 of the Children Act 1989 satisfied by reason of the facts and matters set out in the judgment and recorded in the schedule to this order; It is ordered 1. That the children be placed in the care of Kirklees Metropolitan District Council; 2. That permission is granted to the Local Authority [to disclose a copy of the transcript of the judgment to relevant professionals]; 3. That there be no order for costs …”

It is ordered

[5]The schedule attached to that order was in the terms set out above save that there is a lesser finding as far as S is concerned. The schedule now recites that:
“S has been involved in sexual activity with his sisters and the parents have condoned such activity and failed to protect L and L from it.”
There was no separate order dealing with the parents’ contact. No order was placed before us relating to the freeing of T for adoption but I am told that such an order was in fact drawn.[6]The father now appeals seeking by his appeal to reverse most of the findings of sexual abuse alleged against him as recited in the schedule to the order. He asks this court to make an order for defined contact to the children once a month. Some observations on procedural matters.[7]The first point to make is that under s.16 of the Supreme Court Act 1991 the Court of Appeal has “jurisdiction to hear and determine appeals from any judgment or order of the High Court”. The terms of s.27 of the Supreme Court of Judicature (Consolidation) Act, 1925 were to the same effect. In Lake v Lake [1955] P.337 the headnote records:
“That a judgment or order against which an appeal could be brought pursuant to s.27 of the Judicature Act, 1925, meant the formal judgment or order which was drawn up and disposed of the proceedings and which in appropriate cases the successful party could enforce or execute. The right of appeal did not extend to a finding or statement in the reasons given by the court for the conclusion reached.”
[8]Section 77 of the County Courts Act 1984 is in slightly different terms, namely:- “… if any party to any proceedings in a County Court is dissatisfied with the determination of the judge or jury, he may appeal from it to the Court of Appeal in such a manner and subject to such conditions as may be provided by the Civil Procedure Rules.”[9]Although the CPR themselves seem silent on the point, the form of an appellant’s notice requires in section 5 “details of the order(s) or part(s) of order(s) you want to appeal” and in section 9, in answer to the question, “What decision are you asking the Appeal Court to make?” the appellant has to specify either that “the order(s) in section 5 be set aside” or “the order at section 5 be varied and the following order(s) substituted”. Thus I am in no doubt that the same general principle applies to appeals from the County Courts as from the High Court. Certainly the notes in CPR 52.0.13 confirm that the appeal is against orders, not reasoned judgments.[10]That presents the appellant with technical difficulties which we have overlooked but to which I draw attention. He recognises his children must stay in care and the thrust of his case is that he should have regular contact to them defined by the court, not contact at the discretion of the local authority. His problem is that the order is silent as to contact. No separate contact order has been drawn. The judge dealt with contact in her judgment as I shall indicate and an order should have been drawn to reflect that judgment. In my experience judges seldom see what order is drawn for that is the task of the associate in court. It is for the parties to ensure that orders are drawn to reflect all matters covered by the judgment.[11]Where fact finding and disposal are dealt with at one hearing there is no need for any recitation in the order itself or by attaching a schedule to it of the facts which justify the making of the only order which needs to be drawn namely the care order or supervision order or residence order as the case may be. The judgment stands as the record of why the judge has decided as he or she did. I agree with the observation of Sir Raymond Evershed M.R. in Lake at p.342 that:- “To suggest (except, at any rate, in wholly exceptional circumstances) that an order of this kind should condescend to a detailed statement of every issue which was raised in the case and of the court’s conclusion upon those issues seriatim would be to make the form of order altogether too complicated, and, indeed, that it would be an impracticable and wholly undesirable result.”[12]The position will be different if there has been a preliminary fact finding enquiry before final disposal of the case. As I do less and less family work I am less familiar with current trends and practices but the little I have seen suggests that there is sometimes a tendency for no other order to be drawn after the facts have been found than the giving of directions as to further evidence etc. for the disposal of the case. I have said previously that that does not seem to me to be good enough. It is not good enough because it does not provide any order against which the aggrieved party can appeal. Better, it seems to me, that when the court directs a preliminary fact finding hearing it adopts the standard procedure in civil justice by setting out the preliminary issues which are to be determined. A schedule of the kind prepared in this case can then be framed as questions which the judge can answer aye or nay, an order can be drawn accordingly and there will then be a peg upon which this court can hear the appeal. Because much further investigation will follow, it remains important to remember as Lord Nicholls said in Re O and N; Re B [2003] UK HL 18 [2003] 1 FLR 1169 at paragraph 35:- “… transcripts of judgments given at the preliminary hearing should always be made readily available when required, so that reliance does not have to be placed on summaries or even bare statements of conclusions.”[13]Just how detailed that schedule should be must be a matter left to the judgment of the local authority’s legal team. There is obvious merit in condescending to as much detail as possible not only to give the parents notice of the case against them but also to focus the lawyers’ attention on the issues and the evidence needed to establish or rebut those allegations. On the other hand some restraint may be necessary to prevent the document becoming too unwieldy. A précis of the background taken from the judgment.[14]The parents married in 1990 and continued to live together though it is a marriage which has had its difficulties. The mother is said to have an I.Q. of 60 which places her in the extremely low range of classification. Indeed special arrangements had to be made for her during the trial to have a 15 minute break at the end of every hour so that she would have an opportunity of better understanding the case. The father’s I.Q. is 72 which is on the borderline range of classification. So these parents start with grave disadvantages.[15]It is no surprise that the Social Services Department has had a long involvement with this family and, as was fairly conceded, from time to time has failed it. An early referral to them came from S’s school in 1994 when he was six years old. He had what seemed to be rope marks around his neck alleging that his father did it to stop him going out. The judge found this allegation proved against the father and although it formed part of his appeal, it was not pursued at the oral hearing before us and so the finding stands.[16]There were generalised allegations of domestic violence but the judge’s conclusion was that there were no proven incidents of direct physical violence by the father to the mother: his behaviour was rather to keep her and the children in fear through intimidation, aggression and verbal abuse. He had a tendency to throw things round the house when in temper. The judge expressed herself satisfied in paragraph 63 of her judgment that over a long period of time as appears in the records and chronologies the mother was complaining about the father’s treatment of her to a number of professionals, and the reason she was complaining was because he was treating her in a manner that was completely unacceptable which included keeping her and the children in fear. It was the view of Doctor Ward, a well respected paediatrician, that the domestic violence in this family should be seen as emotional and verbal and that living in a household where there is intimidation and threats would cause great harm to these children. For Doctor Ward there was overall “a global picture of neglect”.[17]This pen sketch of life is enough to justify the findings of significant harm sufficient to lead to the making of a care order.[18]The care proceedings had commenced in this way. On 12th November 2003 the mother reported that she had been raped by strangers. She feared she may have caught a sexually transmitted disease. When she told her husband he “went mad”, called her a whore and a dirty bitch. He agreed in cross-examination that he thought only of himself and not of the mother at this traumatic time. She was so distressed by it that she refused to return home and asked for the children to be accommodated by the local authority. The girls were placed with a foster carer Maggie Wainwright and her partner Shelley. Their presentation and behaviour was a source of concern to her. L (the younger) soon began to make disclosure of sexual abuse which led to the local authority seeking interim care orders early in December 2003. The evidence of sexual abuse within the family.[19]S began exhibiting sexualised behaviour when he was about nine. The school were concerned that his knowledge of sex was inappropriate for a child of his age. He made references to his father forcing his mother to have sex. He himself in April 1998 was seen to put his hand down a girl’s pants. S was also behaving very violently. In October 1999 he hit L the elder so hard on the head with a brush that she had to go to hospital to have the bristles removed. In June 2000 he pushed his mother down the stairs. Mother reported him dragging L (the elder) into his bedroom and hearing her scream without her intervening. In August 2000 he hit his mother and L (the elder) with a hockey stick. In September 2001 he held a knife to his mother’s throat. He was at that time exposing himself and “acting like a peeping Tom”. In July 2002 the school were reporting his aggressive behaviour to girls. On a residential trip S was found in the dormitory on top of a girl. Both, however, were fully clothed. The social work record at the time notes that S was being provided with inappropriate videos by his parents. It also reported that L (the younger) was displaying sexualised behaviour at home and the concerns were that the children had been witnessing sexual activity between the parents. In August 2003 the notes record concerns about the girls’ acting out sexual behaviour between their Barbie dolls. At the same time there were school reports that S had been touching girls inappropriately. On 23rd June 2003 the girls were playing with their Barbie dolls and L (the younger) was overheard to say, “I am gonna sex you”.[20]This sexualised play with their Barbie dolls was a matter of great concern to Mrs Wainwright when the girls came into her home. On 21st November 2003 when a four year old girl in their care was having her nappy changed, L (the younger) witnessed it and asked, “Can we play shagging?” On 25th November L (the younger) told Shelley that a boy had “shagged her and taken her clothes off at school in the toilets”. L (the elder) heard that and responded by saying, “That’s rape then”. L (the elder) made a circle with her thumb and forefinger and inserted her other index finger in and out of the circle she had made whilst the girls were whispering together.[21]Then on Saturday 29th November after a shopping expedition L (the younger) alone with Mrs Wainwright in the kitchen suddenly began talking about boyfriends and shagging. She stated that her Mummy and S do shagging. She went on to say Mummy drinks beer and sucks S’s dick. In addition she stated that Mummy takes her clothes off and shows her tits outside the door and “that” (pointing to her genital area). L (the younger) said, “She had got done by the police for showing her tits and fanny, and Mummy tries to snog me, but I don’t like it. I say “get away”. Mummy says kiss my tits and she tries to shag me”. She went on to say that Mummy tells her to lick her “minge” and L began thrusting her tongue in and out very quickly. She stated that she watched rude films with “shagging in”.[22]The following day Maggie Wainwright without making reference to her disclosures asked L (the younger) whether they should talk about the previous day. L (the younger) looked at L (the elder) and said, “Sex and shagging” and L (the elder) made a groaning sound. L (the younger) then said that Mummy and S do shagging and basically repeated her disclosures of the previous day. Whilst repeating these L (the elder) told L (the younger) that she would “go to hell”. L (the elder) then said that it was all true, “Mummy and S do shag. They get drunk, she likes beer, she shows her tits at the door and her (pointing to her pubic area). Mummy did a poo on the bed, sicked on the floor and pissed on the floor in her bedroom. Mummy and S got done by the police for showing their private parts”.[23]Mrs Wainwright told the judge and the judge accepted that what was said was spontaneous and that she asked no questions.[24]Later that day L (the elder) wrote a letter to Mrs Wainwright. It is difficult to follow but she seems to be repeating “what L (the younger) said that Mum and S were shagging in bed and licks each other private parts”. She also referred to them getting drunk when the police came by and they got told off by the police.[25]On the Monday, 1st December, Maggie Wainwright reported the disclosures to the social worker. Whilst at school L (the younger) spoke to the classroom support assistant Julie Willett about playing a game called “slam down”. Asked how the game was played L said that they took all their clothes off but once someone had come to the door and they had to get dressed again quickly. This was obviously concerning and Ms Willett reported to the head teacher who encouraged her to seek further information. That was unwise. She had no training in speaking to children about matters which could relate to sexual abuse. They had a conversation after lunch and she made a note of the conversation as it went along:- “I was asked if I would go and sit with L (the younger) as she was crying. She said she was missing her Mum and Dad, T and missing her brother S. She said she missed playing games with S, I asked what she was missing and she said slam down. I asked how she played this and she said she had to take her clothes off and they played it on Mum’s bed. S picks her up and throws her around and slams her down on the bed. She then talked about him playing scream with her where he pretends to kill her with a knife. She also says he balanced the kitten on top of the door and shook it and also puts the kitten in a cupboard and puts toys on top of it. Asked L (the younger) to explain how the game slam down is played. She says you take your clothes off and show your tits and fadge – S shows you his big willy or his dick and shakes it about, (it has hairs on it) and wee comes out. She said shit comes out of his arse. Mummy comes in and takes her top off and her knickers off when she is pissed and wees on the carpet. L (the elder) sneaked into Mum and Dad’s bedroom and saw them shagging. L (the younger) said she went to get a toy from Mum’s bedroom and it was full of piss. Daddy puts his head up Mum’s skirt then licks it. L (the younger) takes her clothes off. She lays with her arms in the air and opens her legs (L (the younger) plays this game with Daddy). Daddy takes L (the younger) to the graveyard when it is dark. Daddy plays with my tits in the graveyard. Then L (the younger) plays boogie with Daddy. (Boogie is the same as sex). L (the younger), Dad and S play scary movies. Mummy bought a dick and started to lick it (L (the younger) showed me how). Then L (the younger) licks it and started to eat the balls. Daddy got his big dick out and shook it. Daddy went to someone else’s house to shag then Mummy cried.S has made L suck his dick, he has licked her fadge.” Ms Willett states that throughout that conversation L (the younger) was acting out sexual actions initially using a small “Tigger” soft toy that was in the office. She goes on, however, to say that she later collected two dolls which the child then used to demonstrate what she was saying. The use of anatomically correct dolls has been frowned upon and although these were perfectly ordinary toys, the practice using dolls has to be viewed with care. It is a great pity this untrained, though well meaning, classroom assistant undertook this exercise. Ms Willett also reveals that at the end of the interview the child became upset asking her not to reveal what had been disclosed because “they will think I am dirty and I will go to hell”.[26]Later that night Mrs Wainwright reported that while sitting at the table L (the younger) said she had told Mrs Willett at school about sex and shagging. She then said that L had sucked Daddy’s dick. L said, “I haven’t” and went on to say “We’re not going home”. Shelley asked who had told her that and asked whether it was a child at school or a teacher and L (the elder) said, “No, it’s me” and then said, “It’s because of what Mum has done, the rude things”. Later when L (the elder) had gone for a bath L (the younger) said that she had told Mrs Willett about “smack down”. L (the younger) then told me “You take all your clothes off, with S and Daddy”. She went on to say that L (the elder) had told her she sucked Daddy’s dick when she got a Barbie. L (the younger) also said S puts his big dick out and shaked it, two balls stuck together, small ones, pink and a hard dick, you suck it but you don’t bite it.[27]The girls were taken for medical examination which in L (the elder)’s case was supportive but not diagnostic of sexual abuse. In L (the younger)’s case close inspection of the posterior hymen revealed some irregularity and a double margin but that did not reach diagnostic significance although the hymen was not entirely normal.[28]On the same day the children were interviewed by experienced police officers. L (the younger) made no disclosure of any significance. She was asked if S was a good brother and replied “Yeah”. She conceded sometimes he had been naughty but when asked to tell about when he was naughty and what he did when he was naughty she replied, “Don’t know”. Asked about her father this exchange took place:
“DC Newsome: What kind of things does your Dad do at home? L: Don’t know. DC Newsome: You don’t know what? L: I don’t know what he does.”
DC Newsome: You don’t know what? L: I don’t know what he does.”

DC Newsome: You don’t know what?

[29]She was asked by DC Newsome whether she spoke to Maggie [Wainwright] about her Mum and brother. She shook her head. She was asked, “Can you remember saying anything to Maggie?” and she replied “No”. “DC Newsome: Did you talk to her about your Mummy? L: No. DC Newsome: Did you talk to her about S your brother? L: [Shakes her head]. DC Newsome: Did you talk to her about your Daddy? L: Yeah. DC Newsome: Good so tell me what you were talking to Mrs Willett about. L: Erm don’t know. Don’t know. Our S’s willy. DC Newsome: About what?” DC Newsome: Did you talk to her about S your brother? DC Newsome: Did you talk to her about your Daddy? DC Newsome: About what?”

DC Newsome: Did you talk to her about your Daddy?

[30]She was asked about Ms Willett. Though she admitted talking to her she stated she did not know what they had spoken out. This exchange took place:- “DC Newsome: So do you want to tell me what you said to Ms Willett? A: No. DC Newsome: OK. Is there anything that you want to talk about? L: [Shakes head]. DC Newsome: Do you want to talk about anything that’s happened that you did not like? L: [Shakes head]. DC Newsome: No? L: No.” DC Newsome: OK. Is there anything that you want to talk about? DC Newsome: No? L: No.”

DC Newsome: No?

[31]It seems that DC Newsome had not heard the earlier remark about S’s willy as appears from this exchange at the end of the interview:- “DC Newsome: Right. Clare said that when I asked you what you talked about to Mrs Willett you said about S’s Willy? L: Didn’t. DC Newsome: Did you say anything about that? L: [Shakes her head]. DC Newsome: No? L: No DC Newsome: Do you want to say anything about that? L: [Shakes her head]. Don’t want to.” DC Newsome: Did you say anything about that? DC Newsome: No? L: No DC Newsome: Do you want to say anything about that? L: [Shakes her head]. Don’t want to.”

DC Newsome: Do you want to say anything about that?

[32]L (the elder)’s interview contained these exchanges:
“DC Newsome: Do you know what you’ve come to talk about? L: No … DC Newsome: Has anything happened at your normal house with your Mum and Dad which you think you might need to talk about? L: Fight and argue. DC Newsome: Right. Tell me about that then. L: When me Mum spends money on clothes me Dad doesn’t like it. … DC Newsome: Have you seen anything at your Mum and Dad’s house, at your house? L: No DC Newsome: Anything you don’t like? L: No. DC Newsome: Have you spoken to Maggie about anything at home. L: Yeah. DC Newsome: And can you tell me about that then? L: L (the younger) told Maggie but summat about naughty words. DC Newsome: Right. What did she say? L: Like when me Mum gets drunk, me brother and … me brother and me Mum’s shagging, summat. DC Newsome: Right. So what do you know about that then? L: Cos me sister told me. DC Newsome: Right what did your sister tell you? L: That they, me Mum erm, me Mum and brother went up to shop to get some beer and the police were coming up the road and they erm stuck twos up at them. DC Newsome: Who did that? L: Me Mum and brother when they were drunk. … DC Newsome: And what does it mean, “shagging”? L: I don’t know. … DC Newsome: What’s your Mum like when she’s drunk then? L: She does naughty, rude things. DC Newsome: Tell me what they are then. L: Shows her bum out window and her rude parts. DC Newsome: Does she? L: Yeah. DC Newsome: What are her rude parts then? L: Her fanny and her tits. … DC Newsome: And how many times have you seen your Mum do that? L: Quite a few times. … DC Newsome: And what about your S? L: Fights sometimes. DC Newsome: Who does he fight with then? L: Me and L … DC Newsome: What games does he play? L: Like monsters and things. DC Newsome: Tell me about that then. L: Just pretends to bite us. … DC Newsome: Can you tell me anything else like that that happens in your house? L: No. DC Newsome: Right. What’s your Dad like with you? L: Tickles us. DC Newsome: Does he? L: Yeah. DC Newsome: Where does he tickle you? L: On me belly. DC Newsome: Right. Whereabouts on your belly? L: There [points to her stomach]. There. DC Newsome: There. Right. Does he tickle you anywhere else? L: No. … DC Newsome: Have you seen your Mum and S shagging? L: No. DC Newsome: No. Have you seen your Mum doing anything like that with S? L: No. DC Newsome: And what about with you? L: No. DC Newsome: And what about Laura? L: No. … DC Newsome: You know when we were, I said about shagging? What, who does shagging? L: Mum and Dad. DC Newsome: Right. Tell me what they do when they shag? L: Make love. DC Newsome: Right have you seen that happen? L: No. DC Newsome: No? And have you seen anybody do that? L: No.”
L: No … DC Newsome: Have you seen anything at your Mum and Dad’s house, at your house? L: No DC Newsome: Anything you don’t like? DC Newsome: And can you tell me about that then? DC Newsome: Right. What did she say? DC Newsome: Right. So what do you know about that then? DC Newsome: Right what did your sister tell you? DC Newsome: Who did that? DC Newsome: And what does it mean, “shagging”? DC Newsome: What’s your Mum like when she’s drunk then? DC Newsome: Does she? DC Newsome: What are her rude parts then? DC Newsome: And how many times have you seen your Mum do that? DC Newsome: And what about your S? DC Newsome: Who does he fight with then? L: Me and L … DC Newsome: What games does he play? DC Newsome: Can you tell me anything else like that that happens in your house? DC Newsome: Right. What’s your Dad like with you? DC Newsome: Does he? DC Newsome: Where does he tickle you? DC Newsome: Right. Whereabouts on your belly? DC Newsome: There. Right. Does he tickle you anywhere else? DC Newsome: Have you seen your Mum and S shagging? DC Newsome: No. Have you seen your Mum doing anything like that with S? DC Newsome: And what about with you? DC Newsome: And what about Laura? DC Newsome: You know when we were, I said about shagging? What, who does shagging? DC Newsome: Right. Tell me what they do when they shag? DC Newsome: Right have you seen that happen? DC Newsome: No? And have you seen anybody do that? L: No.”

DC Newsome: No? And have you seen anybody do that?

[33]On 8th December Maggie Wainwright informed Social Services that L (the elder) had said that when she was at school her teacher “touched her up” and when asked what she meant by that she said he had taken her into the toilets and touched her private parts.[34]On 11th December L (the elder) alleged that they had been touched by Leif, a family friend. These allegations were investigated and it was decided that the police should conduct a further interview of the children.[35]In the course of her interview L (the younger) said nothing about indecent assaults by Leif, but at the end of the interview this exchange took place:- “DC Barnes: That’s all you’ve talked about isn’t it? L: And me Mum she’s been naked. She was pissed. She drank all the beer, then sing, “Tell L (the younger) I love her”. She sang that near to me next to L (the elder). Then says comes and shag me. “Come and shag me, S”. DC Barnes: Who said that? L: Me Mum. She were pissed. Then she said kiss me L. She were thingy. Like, erm, thingy. She were pissed. Then she went outside and then she smoked, then this is the worst thingshedone, she went outside, she taked her bra off, she showed her boobies off. That were dirty. Then going like that, that rude. That’s why I was taken away for. Is about my Mum doing that? That’s why we were taken away? Then Mum, me, I, Daddy ringed up and then he shouted and then he went downstairs … DC Barnes: Right. So that’s what your Mum did when she was pissed? L: Yes. Me Mum did. My Dad got very cross. DC Barnes: Has that happened before? L: Yes. Me Dad got very cross. DC Barnes: Dad got cross did he? L: Yes. Got cross. DC Barnes: Right. L: He shouted. That’s it. That’s what I want to talk about. I talked it now that’s it.” DC Barnes: Who said that? DC Barnes: Right. So that’s what your Mum did when she was pissed? DC Barnes: Has that happened before?

DC Barnes: Dad got cross did he?

[36]In her interview L (the elder) was asked to say in her own words what she had come there to talk about. She wanted to talk about Judy and Leif. She said of Leif:
“When I went to toilet and I were having a poo he looked in. There were a little gap in door and he looked in. And, erm, when I were in room he touched me up leg and erm and that’s it, that’s the only thing I can think of.”
[37]She continued to talk about them saying that Leif was bad “cos he does all those rude things I think”. She later explained how they were playing a game of hide and seek and were on the floor covered with cushions when Leif found them and then:- “He put his hand up and touched me up leg there [indicating the top of her right thigh].”[38]Later she said:- “S did [the finding] but he didn’t touch me up the leg. And Leif did it but he touched me up the leg.”[39]This seems to me like inappropriate touching but it is an allegation not levelled against her brother and her father did not even get a mention.[40]L (the elder) was interviewed by a Guardian on 28th June 2004 when she told him she would only wish to return home to live with her parents if the problems that existed prior to her leaving the family home had ended. When pushed on the nature of these problems she told him that she did not like the swearing, that S scared her with ghost stories and did “bad things”. She added that she did not like her mother and father arguing, that her brother and mother would kiss and do “rude things” and that when drunk her mother would hurt her by pulling her ear. L declined to define “the bad things” and the “rude things” but did talk about her mother exposing herself when in drink. The father’s evidence.[41]In the transcript of Day 1 of his evidence at page 7/8 he denied giving evidence in chief that it was true that he got “his dick” out and shook it. He volunteered the explanation that:- “Maybe she’s seen me on the toilet or whatever like that, you know.” He admitted being with her in the graveyard but only because they were taking a shortcut to the town. He did not know what she meant by “boogie”. He knew of “smack down” as a Play Station wrestling game but he denied ever having seen S do anything in a sexual way to the girls. He admitted he had bought inappropriately explicit videos for S and gave this explanation for it:- “It was the lesser of two evils, you know. Keep him in and he’ll behave himself and that, get him a game, you know. Basically that was it. If he couldn’t go out then I’d buy him a game. “Well, buy me a game then”. “Well, o.k.”. And then it seemed to be that side of the games, the adult side.”[42]He was cross-examined at length by Mr Hayes on behalf of the local authority. He fenced and hedged about forcing his wife to have sexual intercourse. What he was prepared to concede was that he would succeed in having sexual intercourse with her even after she had said no. A typical exchange would be the following with some passages omitted:- “Q. Did the children see pornographic videos? A: If they got hold of them, yes they would have done, yes. Q: Would you let the children watch pornographic videos? A: No. Q: Why were you leaving them, you say where they could see them? A: Just being careless. Q: Careless. What do you mean by that? A: Just leave them, you know just leaving them. Q: Why did you not just put them away? A: Should have done, yes.” Q: Would you let the children watch pornographic videos? Q: Why were you leaving them, you say where they could see them? Q: Careless. What do you mean by that? Q: Why did you not just put them away? A: Should have done, yes.”

Q: Why did you not just put them away?

[43]Here is another unsatisfactory passage:
“Q: Did you ever hear L talking about seeing oral sex? A: Seeing oral sex? Q: Yes. A:Yes. Q: You did? A: Yes. Q: What did she say about that then? A: Seeing it, saw it with me and the wife. … Q: How do you know she saw it with you and your wife? A: Probably just see it when she’s walked into the bedroom or she’s stood there in the bedroom.”
A: Seeing oral sex? Q: You did? Q: What did she say about that then? A: Seeing it, saw it with me and the wife. … Q: How do you know she saw it with you and your wife? Dealing with the penis shaped piece of rock, this is a typical passage:- “Q: So what is L (the younger) talking about when she is talking about licking a dick? A: Maybe that’s what she’s seen when we’ve been in the bedroom. Q: L is talking about she, L (the younger), doing it Mr D? A: No, not L (the younger) doing it, no she’s probably seen me and wife. Q: L (the younger) is talking about L herself doing it? A: No. Q: She remembers L (the elder) sucking your dick and you gave her a Barbie. What is that about? A: No that’s not true. Q: Did you give L (the elder) a Barbie as a reward for doing that to you? A: No. Q: Is that what you were doing? A: No. Q: Make her think that if she did things like that she would get gifts? A: No. Q: She remembers a game, and she talks about a game – I am talking about L (the younger) now, where you would all take your clothes off in the house. What was that? A: No I don’t remember that game. Q: Are you saying that it’s all made up? A: Yes.” Q: L is talking about she, L (the younger), doing it Mr D? Q: L (the younger) is talking about L herself doing it? Q: Is that what you were doing? Q: Make her think that if she did things like that she would get gifts? Q: Are you saying that it’s all made up? A: Yes.”

Q: Are you saying that it’s all made up?

[44]On the second day of his evidence he dealt with the specific allegations against him in this way:- “Then L (the younger) said this to her classroom assistant. “L takes her clothes off. She lays with her arms in the air and opens her legs. L plays this game with Daddy.” So L calls it a game. Have you ever played a game with L? A: No. Q: Where she takes her clothes off? A: No. Q: And lies with her arms in the air. A: No. Q: And opens her legs? A: No. Q: Or have you told her it’s a game? A: No. Q: Where in fact what you are doing is having sexual activity with her? A: No Q: That is what you have done, is it not? You have told your daughter that this is a game? A: No. Q: To make her do it. A: No. Q: That is why when she is talking to her classroom assistant she called it a game? A: No Q: She can remember you taking her to the graveyard. “Daddy plays with my tits in the graveyard”. Then she plays boogie with her Daddy and then she is asked what boogie is. “Boogie is the same as sex”. What is L talking about, Mr D? A: The graveyard, we just take a shortcut through the shops. Q: Do you touch her there? A: No. Q: You see it is after that – I have asked you about this already – that she then describes this incident with the dick. “Mummy bought a dick and started to lick it”. L showed me how. So L showed her classroom assistant what happened. She saw that happen and she copied it so that the classroom assistant knew what she was talking about. A: I haven’t seen it. Q:
“And then L licks it and starts to eat the balls”
. That is what she is describing there. That is the incident with the novelty toy or the novelty sweet as you describe it. Then the next thing that L tells her, “Daddy got his big dick out and shook it”. A: No, not true. Q: That is what you’ve done, is it not? A: No. Q: She’s not talking about you on the toilet there, is she? A: No.” Q: Where she takes her clothes off? Q: And opens her legs? Q: Or have you told her it’s a game? Q: Where in fact what you are doing is having sexual activity with her? A: No A: No Q: Do you touch her there? Q: That is what you’ve done, is it not? Q: She’s not talking about you on the toilet there, is she? A: No.” The judge’s findings.

Q: She’s not talking about you on the toilet there, is she?

[45]The judge recorded the fact that she had seen videos of the children’s interviews. She said of them:- “55. It is clear from them that they had no evidential value, L (the younger) in particular struggled to understand what was being said to her in relation to the truth, and it is my view that they add nothing to this case either supporting or negating the allegations made elsewhere.”[46]She made these findings which I must set out fully:- “86. It is not necessary for me to make findings about each and every allegation in this case; as I have said I adopt the chronology which I accept is an accurate account of events in this household. I do however find that the father has, as alleged, been overbearing and intimidating. I am satisfied that this household was run entirely with his interests first and foremost and that the children’s interests were disregarded. Where there was a dispute between the evidence of the parents and that of the professionals I accept the evidence of the professionals. I accept that the mother has repeatedly with good cause over the years complained of the father’s behaviour and I find that the reason for the mother’s upset on 12th November 2003 was not because she had been allegedly raped, but because of the father’s appalling reaction and behaviour towards her. I am satisfied that that was worse for the mother than the alleged rape itself. The mother in her evidence tried hard to exculpate the father from any responsibility. It was in my view an example of what she has done over the years, namely put him first over the children. I find that the father has throughout this marriage treated the mother with contempt and sexually abused her. He has on his own admission demanded sex at all times of the day and night and has not been concerned whether the children have watched or not.87. The mother told me in relation to S [the son], “He says he cannot help it, I have asked him why he is doing it; he says he has a problem and cannot control himself”. I am satisfied that she was talking there not of S but of the father.88. I find that in relation to the incident in 1994, it was as S recounted at the time, namely, he was restrained by his father putting a rope round his neck. He has since been used by the father as the scapegoat should the mother not give into his demands and at times has felt the need to act as his mother’s protector. I accept the submission of the local authority that there have been numerous profoundly worrying incidents involving S, and that S’s behaviour is a direct result of what he has seen and experienced in the home. S has shown violence, aggression and sexualised behaviour towards his sisters, which is a result of witnessing his father behave in such a manner towards his mother.89. L (the younger) was still only six and L (the elder) ten when taken into care. Their descriptions as given to Julie Willett and their foster carer I have examined with some care. There is no reliable disclosure interview in this case, however I am satisfied that these girls had a story to tell, which tell they did when they were in the safe environment of their foster home. L (the younger’s) demeanour at the time she disclosed is in my view significant. She was relaying in a matter of fact way things that were to her ordinary day life. She displayed a knowledge that could only have been learnt. She lived in a household where the father admits the sexual boundaries were unacceptable. Taking into account all the evidence I am satisfied that the behaviour of these parents towards their children went far beyond their admission. I am satisfied that S, L and L have all suffered sexual abuse, not only by being allowed to watch their parents having sexual intercourse and oral sex, but also directly as described to Ms Wainwright and Julie Willett.90. I am asked to find that S had sexually abused his sisters. I do not do so. I am satisfied that S has indulged in inappropriate sexual behaviour with his sisters, however at the least this was condoned by the parents who failed to protect L and L from it, and I cannot be satisfied that the parents themselves were not involved on such occasions. I am therefore not prepared to attribute responsibility for such acts to S. It seems to me that as he has grown up himself the victim of abuse by his parents and in a home where sexual activity was daily a part of life, he has known no other.91. In relation to the schedule of findings sought by the local authority … I therefore find the allegations proved … and in relation to two it should read “S has been involved in sexual activity with his sisters and the parents have condoned such activity and failed to protect L and L from it.”92. I am satisfied that all four children have suffered and are likely to suffer significant harm in the care of their parents, and orders are necessary to protect them.” The care orders and contact.[47]In the light of those findings the judge was satisfied that the children could not return home and that alternative arrangements had to be made for their care and she approved the care plans accordingly.[48]Dealing with contact with the girls the judge said this:- “In relation to L and L I agree that they should be kept together. I have listened with concern to the plan for them only because I accept the difficulty that the local authority is in finding a placement for them. If at all possible bearing in mind the evidence of Mrs Salter a foster placement should be found, but I agree with them except that twin track planning is appropriate and that the placement itself is the most important and not the nature of the placement. The local authority has a difficult task ahead of them balancing the need for therapy and the finding of a placement and the girls’ need for some contact. I was pleased that during the final submissions it was made clear that the local authority will only slowly reduce the girls’ contact to their parents over the next few weeks such that it will be weekly from 20th September for a month, fortnightly until 22nd November 2004 and then each school holiday and half term until placement. Thereafter the local authority and the children’s guardian having differing views, the children’s guardian saying it should remain at this level and the local authority saying it should be three times a year. It is my view that either view could be right but it is far too early to say now. Exactly what will be the position of the girls in say six or twelve months is unknown as is the views of any therapist or carer. The contact will be reviewed at the statutory reviews and I would simply urge the local authority to look carefully, as I know they will, at the arrangements at each review. Subject to the plan being amended to reflect what was said in submissions I am therefore not going to make an order for contact to the parents requested by the children’s Guardian.”[49]She went on to deal with T and held that a reasonable parent taking into account all the facts as she had found them would consider that it was best for T that he be adopted and in those circumstances she dispensed with the consent of the parents and freed him for adoption accordingly. And there is no appeal against that decision.

Can findings of fact set out in the schedule to the order be upheld?

[50]I have spent a long time, regrettably too long a time, mulling over this question. I am all too well aware of the need for caution before interfering with the trial judge’s assessment of primary facts. This is an experienced judge who had a long time to view the parties in a difficult case. Her views command respect and I have been concerned to pay that deference to the judge’s findings. Despite that, I cannot uphold her conclusions. Before passing to a consideration of the individual findings of fact contained in the schedule to the order I have three reasons for concluding that it is not safe for this court to rely upon them.[51]The first is this. It was, in my judgment, but contrary to hers, necessary for the trial judge to make findings about each and every allegation in the case in relation to sexual harm as particularised in the schedule because both the guardian and the expert psychologist Mrs Salter were agreed that absent findings of direct sexual harm, then regular contact, whether once a fortnight or once a month, should be allowed to these young girls who love their parents and miss them. Having disclaimed in paragraph 86 the need to make findings about each and every allegation in the case, I cannot be sure that the learned judge did properly turn her mind to the individual incidents of direct sexual harm when finding in paragraph 89 that they suffered sexual abuse directly as described to Ms Wainwright and Julie Willett. The girls did have “a story to tell” for they have seen and heard much from which they ought to have been protected but that does not absolve the need for detailed considerations of the several allegations levelled against father, and mother, and S.[52]The second general reason is that there appear to me to be two strands of inconsistency running through this judgment. The first is this. If the disclosure made to Maggie Wainwright and Julie Willett is accepted as credible as the judge accepted them in paragraph 89, then that had to lead inevitably to a finding that S was not merely a victim of sexual abuse of one form or another within the family but a perpetrator of it. She seems to have declined to do so. Asked to find that S had sexually abused his sisters she did not do so in paragraph 90 of her judgment. She was satisfied that he had “indulged in inappropriate sexual behaviour with his sisters” and I am puzzled as to what is meant by that. The problem that then arises from the judgment is that it is difficult to see how the evidence can be compelling enough to convict the father but not the brother. There was abundant evidence before the court that S was a damaged boy, very much a victim himself. He was described by Professor Reed, consultant psychiatrist, as posing a risk to his siblings from his “sexually predatory behaviour” by Mrs Salter as “a potential danger to vulnerable people” and by Doctor Ward as “a highly vulnerable young man in terms of his own safety and the safety of others”. I do not record these troubling observations for the sake of denigrating the boy but to make the point that some judgment had to be made about exactly what he was doing to his sisters in order to separate out from their account of the happenings in that household, devoid as it was of normal sexual boundaries, who had done what to whom. The judgment is not internally consistent when S is exonerated of sexual abuse and the father is condemned of all of it. If the judgment lacks logical coherence, it has to be reviewed by the Court of Appeal.[53]The second inconsistency lies in the fact that in order to find that the father had subjected L (the elder) to oral sex then he had to reject that child’s denial that such a thing ever happened. No reasons are given for preferring L (the younger) to L (the elder). For me this lack of particular reasoning taints the whole process of reasoning not just on this part of the case. It permeates the whole judgment and is not simply to be seen as a reason for upsetting that particular finding.[54]The third general ground of concern was her holding that the interviews with the police “have no evidential value” and “add nothing to this case either supporting or negating the allegations made elsewhere”. In my judgment that is wrong. True it is, as the judge found, that L (the younger) may have struggled to understand what was being said to her in relation to the truth in her first interview which is, as a result, inconclusive but in her second interview held to investigate Leif’s conduct, L did take the opportunity to talk about her mother’s behaviour which clearly was a matter of concern to her because she felt that was the reason why they had been taken into care. She was availing of an opportunity to bare her soul in that disclosure, yet she said nothing about father. Nor can the first interview be entirely overlooked. L (the younger) may have said nothing but L (the elder) knew why the interview was being conducted and she repeated what they had been speaking to Maggie about, namely, the behaviour of her mother and Stephen. She disclosed nothing adverse about her father’s behaviour. In my judgment those are evidential facts which it was wrong to discount.[55]For those reasons I am satisfied that the appeal has to be allowed and the question for me is whether it should be remitted for a rehearing. No-one sought that. I see no need for it. This court is now able to act on the primary findings of fact made by the judge and draw its own inferences as to what happened applying the high standard of proof which is required in a case like this. I turn, therefore, to consider the several matters alleged in the schedule of findings placed before the court. Sexual intercourse.[56]On Saturday L (the younger) spoke of Mummy and S shagging. She repeated it the next day. L (the elder) agreed Mummy and S do shag. She confirmed it in her letter. On Monday L (the younger) made the only reference to sexual intercourse with the father. She said she took her clothes off and lay with her arms in the air and opened her legs. In parenthesis Julie Willett noted that she played the game with Daddy. There is no account of his part in the game. She knows what sexual intercourse is but did not allege it. Then she said she “plays boogie with Daddy” and Julie Willett again noted in parenthesis that boogie was the same as sex. We do not know how that link came to be expressed by L (the younger). She said nothing about it at the police interview. L (the elder) did refer to her brother and mother shagging. Although at one point she said she did not know what that meant she later referred to her mother and father making love when they do it. Doctor Ward reported of the younger girl that no trauma to the hymen was detected though there was some irregularity there. The posterior fourchette was intact. In my judgment this evidence was wholly insufficient to justify a finding that father had sexual intercourse with L (the younger). To equate boogie with sexual intercourse based solely on a note taken by an untrained interviewer without knowing how the question was put and how the answer was given is totally inadequate. The medical evidence does not support the allegation. It would be unsafe to find the sexual intercourse on that evidence. There is absolutely no evidence of sexual intercourse with L (the elder). I did not understand Miss Hamilton Q.C. who now appears for the local authority to resist that conclusion. Indecent touching.[57]In her first conversation with Maggie L (the younger) said that Mummy tried to snog her. She told her teacher that Daddy played with her tits in the graveyard, a prelude to playing boogie. This was a six year old child, not a sixteen year old. L (the elder) spoke of father tickling the children but on the stomach which is not suggestive of any indecency. She did, however, complain of Leif’s indecent assault. I will consider this allegation further in due course. Oral sex.[58]In the first disclosure to Maggie L (the younger) spoke of Mummy sucking S’s dick and Mummy asking her to suck her minge. In her letter L (the elder) seems to speak of mother and S licking each other’s private parts. L (the younger) told Julie that Daddy put his head up Mum’s skirt and licked it. Later that night L (the younger) said that L (the elder) had sucked her father’s penis but that met with an instant denial from L (the elder). It was repeated in her absence with the explanation that it happened when L (the elder) was given a Barbie doll. There is no assertion by L (the younger) that she actually saw this happening. For my part I find it impossible to conclude that the younger child’s evidence of something she did not see is to be preferred to the instant denial of the facts by the elder child. The evidence does not have that degree of cogency to it which entitles the court to make the finding. Exposure to pornography.[59]The father admits this. L (the younger) told Maggie on the Saturday that she had watched rude films showing shagging. She was only six years old. The parents’ failure to protect their children is lamentable. Exposure to an adult sex object.[60]This is an overdramatic presentation of the facts. What is established is that the father bought a stick of rock shaped like a penis. The judge was fully entitled to find that with his knowledge and possibly his encouragement the mother lasciviously licked this sweet. The children seemed to have joined in the game. It was thoroughly inappropriate. There is, however, no other evidence of exposure to “an adult sex object”. Participation in a sex game involving family members removing all of their clothing.[61]There are two aspects to this. The one relates to mother and S exposing themselves and the other relates to the game slam down. I shall deal with the former first. That was mentioned in L (the younger)’s first discussion with Maggie. It was accepted the following day by L (the elder). Both had referred to the police being involved so did the letter. It was referred to by L (the elder) in her police interview. Moreover it was referred to by L (the younger) in her second police interview.[62]The game of slam down was not mentioned to Maggie on either Saturday or Sunday when, as the judge found, L (the younger) was making spontaneous disclosure. The first mention was to Julie in the discussion that took place before lunch, namely that they all took their clothes off and once somebody had come to the door and they had to get dressed again quickly. It is not clear who the participants in this game were. There is no express evidence that father was involved. When the interview was resumed in the afternoon and Julie was probing she asked questions in a way that are not recorded and in a way that do not enable us to judge the degree to which she led the child if she did so at all. The progression of the interview as recorded is interesting. What the child was missing was playing games with S – not with the whole family. The game she was describing was played between her and S. Asked to explain how the game slam down was played she again made reference only to S then she referred to her mother but seemingly in a different context of taking her knickers off when she was under the influence of drink. In that interview father is not involved in the slam down game. Her allegation against father is different. She said, as I have already set out, that she lies with her arms in the air and opens her legs and she explains that this is the game she plays with Daddy. This is more related to the allegations of sexual intercourse which I have already rejected. She also referred to Daddy getting his big dick out and shaking it but that was not said in the context of any game. The only direct reference to father was later that night when, questioned by Maggie, she described smack down as being a game where you take all your clothes off with S and Daddy. I express my conclusion about it later.[63]L (the elder) says nothing about the game. There was evidence given of her being taken up into S’s room and being heard to scream. There was cross-examination to the effect that S was engaged in some sexually inappropriate behaviour on those occasions but nothing definite emerges. Sexual activity between the adults in the children’s presence.[64]The father admits that his voracious appetite for sexual intercourse with his wife was uncontrolled and that he made it perfectly plain what he wanted and when he wanted it. His wife had to submit to his demands, however unwillingly. The children were very well aware what was happening. He admits moreover that there were many occasions when they actually saw him having sexual intercourse and having oral sex with his wife. It presents an appalling picture of their family life. The extent to which L (the younger) actually witnessed this activity is not as clear. In her conversation with Julie she stated that it was L (the elder) who sneaked into the parents’ bedroom and saw them shagging, although she also says, as if from direct knowledge, that father put his head up mother’s skirt and licked “it”. L (the elder) denied to the police that she had seen her parents having sexual intercourse or her mother doing anything like that with S. Although, therefore, the precise detail may not be known, the fact remains that these children were from a very early age aware of their parents’ sexual activity to a degree far beyond that which could ever be acceptable. Sexual abuse of one child in the presence of one or more of the other children.[65]There is evidence that the girls were aware of sexual activity between their mother and S but there is no evidence, apart from the playing of slam down, of father sexually abusing one child in the presence of another. Conclusions.[66]I am perfectly satisfied after this careful review of the evidence that it does not have the cogency to justify findings that this father had sexual intercourse or oral sex with any of his children. The case against him for indecent touching and playing the “sex games” is less clear cut. I repeat my reluctance to interfere with the judge’s findings unless I am quite satisfied that she was wrong. These further features of the case persuade me that she was.[67]Corroboration of this evidence is not essential but one does have to scrutinise it carefully for its internal coherence and consistency. It is all too easy to conclude from the all pervasive atmosphere of inappropriate sexual activity and boundaries in the household that some of the mud must stick. This troubles me. I cannot be sure of the reliability of the girls’ evidence. Some days before L (the younger)’s disclosure to Maggie she had complained that a boy at school had taken her clothes off in the toilets and “shagged her”. That complaint does not seem to have been received with any conviction as to its veracity as to have justified an inquiry by the school. At least there is no evidence to that effect. It was seemingly treated as a figment of her imagination. On 8th December L (the elder) complained that a teacher had taken her into the toilets and touched her private parts yet that allegation does not appear to have been treated seriously. A consistent thread in the disclosure was of mother and S behaving badly and the police having to intervene. There is no confirmation from the police that that happened at all. It is difficult to act on some evidence but not on other parts of it.[68]At the end of this process, one has to stand back and look at the whole case and the whole way in which this sorry tale emerges. What emerges from that overview for me is that the girls were not concerned about their father’s behaviour but their mother’s and S’s. All the disclosure on the Saturday and Sunday to Maggie related to her mother and S and when L (the elder) learns about it she agrees with it. Father is first mentioned to Julie Willett. Later that night there is the disputed suggestion of L (the elder) having to suck her father’s penis. I am struck by the sadness of L (the elder)’s response in the course of that conversation that they were not being allowed to go home, not because of what her father had been doing but because of the rude things that her mother had done. That is exactly what L (the younger) says in her second interview in January. She is a bit vague about what Leif had done at the end of that interview when the girls seems to me truly to open her heart and start talking about the things that really do seem to matter to her. I repeat this excerpt:- “Then she went outside and then she smoked, then, this is the worst thing she done, she went outside, she taked her bra off, she showed her boobies off. That were dirty. Then going like that, that rude. That’s why I was taken away for. Is it about my Mum doing that? That’s why we were taken away?” I have added the emphasis.[69]It is all of a pattern with L (the elder)’s expressing her wish to the guardian to return home only if the problems that existed prior to her leaving had ended. When pushed on the nature of those problems she referred to S and her mother kissing and doing “rude things” when she is drunk. She would not expand on the nature of those “rude things”.[70]It seems to me that there we get closer to the heart of what troubled these girls. In my judgment it would be unsafe to find that this father was guilty of any direct sexual abuse of any of his children. I would allow the appeal accordingly.

What is to happen now?

[71]I remind myself that this is essentially the father’s appeal against the judge’s ruling on contact which he left at the discretion of the local authority but presumably to be exercised in such a way that it will rapidly diminish as proposed in the care plan. As both the guardian and the expert psychologist agreed that there was no reason why father should not have regular contact if not guilty of direct sexual abuse, then it is tempting to overturn that part of the judgment also and substitute a defined contact order. Though tempted, I must resist the temptation. This court is not in a perfect position to judge what is best for the children today, months after the children were placed in care. The right course, in my judgment, is to overturn that part of the judgment and if an order had been drawn to discharge it. I would remit the matter to the judge – and I see no reason why it should not be to Judge Cahill Q.C. despite our overturning her findings of fact – for her to decide what contact is now appropriate. Lord Justice Clarke :[72]I have read Ward LJ’s judgment with care and I agree with most of it but I have some reservations, which it seems to me that I am bound to mention, although I appreciate that I am in a minority. As Ward LJ has indicated, the mother has not sought to appeal against the judge’s order or findings, so that we are concerned only with the findings against the father. The judge found all the allegations in paragraph 1 of the Schedule of Findings sought by the Local Authority against the father proved. They were that both parents (thus including the father) had subjected the children S, L and L to repeated acts of sexual abuse including: sexual intercourse, indecent touching, oral sex, exposure to pornography, exposure to an adult sex object, participation in a sex game involving family members removing all of their clothing, sexual activity between the adults in the children’s presence and sexual abuse of one child in the presence of one or more of the other children.[73]This case has demonstrated considerable differences of judicial view. The judge made a number of seriously adverse findings of fact against the father; Wall LJ refused permission to appeal on the papers in strong terms; and Ward LJ and Sir William Aldous have held that the judge was wrong in arriving at a number of her conclusions of fact. For my part, I have arrived at conclusions which are I think less extreme than any of those judges who have considered the issues.[74]The issues must be considered in their context. No attempt has been made to appeal against the judge’s conclusions that the threshold criteria in section 31 of the Children Act 1989 are satisfied, that care orders should be made or that T should be freed for adoption. As Ward LJ has put it, the pen sketch of family life taken from the judgment is enough to justify the findings of significant harm sufficient to lead to the making of a care order.[75]Moreover, the findings which are not the subject of appeal by the father demonstrate at the very least the most unsatisfactory sexual behaviour on his part. Thus, as Ward LJ has observed under the heading of exposure to pornography, the father admits this allegation. I entirely agree with him that the parents’ failure to protect their children in this regard is lamentable. I also agree with him that the evidence of the licking of the rock, whether rightly or wrongly described as exposure to an adult sex object, was inappropriate. More importantly, the father does not appeal against the judge’s conclusion that there was sexual activity between the parents in the children’s presence. As Ward LJ has said, the mother had to submit to the father’s sexual demands, however unwillingly, and the children were very well aware of what was happening. The father admits that there were many occasions when the children saw him having sexual intercourse and oral sex with their mother. I agree with Ward LJ that this part of the evidence presents an appalling picture of family life.[76]As to the allegations of direct sexual abuse by the father, the judge correctly directed herself by reference to Re H & Others (Minors) (Sexual Abuse: Standard of Proof) [1996] AC 563. The judge saw the witnesses and had a much better opportunity than we have had to reach conclusions of fact. This court should in my opinion be very careful before making its own findings of fact in disagreement with those of the judge.[77]However, that said, I agree with Ward LJ that the findings of sexual intercourse and oral sex which were made against the father cannot stand. The local authority concedes that the judge should not have held that he committed sexual intercourse with either daughter. There was no sufficient evidence that he did, if only because the expression ‘boogie’, even if described as ‘the same as sex’, does not sufficiently describe sexual intercourse.[78]I am less sure that the judge was not justified in finding the father guilty of oral sex but on balance I agree that the evidence did not justify such a finding. L (the younger) did not say that her father had had oral sex with her but that he had had oral sex with L (the elder). The evidence, while admissible, is weakened by two factors. The first is that L (the younger) did not say that she had witnessed any such event and, according to Mrs Wainwright, when she said that “L (the elder) had sucked daddy’s dick” L (the elder) immediately said “I haven’t”. A little later she said that L (the elder) had told her that “she sucked daddy’s dick when she got a Barbie”. While I see the force of the point made on behalf of the local authority that L (the elder) would be likely to deny it even if true and that the reference to the Barbie suggests that L (the younger) was not making it up, I can see that the evidence is not strong given the denial and the absence of direct oral evidence. Moreover the judge did not focus on these weaknesses in her judgment.[79]However, those conclusions do not involve holding that L (the younger) was not telling Mrs Wainwright or Ms Willett the truth. They simply involve saying that the evidence was not sufficient to satisfy the standard of proof identified in Re H. I do not think that we can properly say that the judge should have rejected the account of which L gave to Ms Willett and Mrs Wainwright which supports a finding of indecent touching against the father.[80]The key part of the evidence of Ms Willett as recorded in her note is this:
“Daddy takes L (the younger) to the graveyard when it is dark. Daddy plays with my [i.e. L (the younger’s)] tits in the graveyard. Then L (the younger) plays boogie with Daddy. (Boogie is the same as sex).”
That is clear evidence that L (the younger) told Ms Willett that her father touched her indecently. As stated earlier, the reason for rejecting the case that the father had sexual intercourse with L (the younger) is not that L (the younger) was not telling Ms Willett the truth but that there was no evidence of penetration. It does not follow that the father did not play boogie, which on this footing is something short of sexual intercourse but which the judge was entitled to conclude involved indecent touching, to put it no higher.[81]For my part, I see no reason to hold that the judge was not entitled to hold that indecent touching was proved on this basis. I do not think that the fact that it is not clear what questions Ms Willett asked provides such a reason. I see no reason to think that the judge was not able to evaluate her evidence. While I agree that the judge was wrong to hold that the police interviews had no evidential value and that she should have held that they were not supportive of the allegations being made by the girls, it appears to me that that the contents of the interviews are not sufficient to undermine the evidence of Mrs Wainwright and Ms Willett or the truth of what they were told.[82]As to ‘smack down’, Mrs Wainwright said this in paragraph 14 of her statement:
“Later when L (the elder) had gone for a bath, L (the younger) said that she had told Mrs Willett about “smack down”
. I had heard the girls mention this previously, however, had not thought anything of about it. L (the younger) then told me “you take all your clothes off, with Stephen and Daddy.” While I suppose that it is just possible that the game of smack down did not involve indecent touching of L (the younger), it seems to me that the judge was entitled to find both that it did and that it involved her father.[83]The judge had available evidence from a number of sources, including of course the parents. She saw both parents give evidence. She was much better able to judge what went on than we possibly could. Wall LJ was surely right to say that the father was a highly significant person in a profoundly abusive household. Moreover, having heard the father’s evidence, which (as Ward LJ has demonstrated) was very unsatisfactory in a number of respects, the judge was entitled to hold that he had only told the court as much as he felt necessary and that there was a great deal more than he could yet tell. In short she was entitled to reject his evidence and accept the evidence of what the girls told Mrs Wainwright and Ms Willett as true.[84]I have already given my reasons for concluding that the findings of sexual intercourse and oral sex cannot stand but, as already stated, they do not depend upon any lack of credibility on the part of the girls. It appears to me that, having regard to the nature of the allegations and the evidence, the judge made sufficient findings on the other issues. As to the judge’s refusal in paragraph 90 to find that S sexually abused his sisters, it seems clear to me that the judge there intended to be merciful to S because of the parents’ responsibility. If there is any illogicality between the contents of paragraph 90 and the findings against the father, it is to my mind some of the findings in paragraph 90 which should be reversed and not the finding of indecent touching against the father. It would not, however, be appropriate for us in fact to reverse those findings, any more than the findings against the mother, because we have not been asked to do so. As to the police interviews, I have already expressed my view that, while relevant, they are not by themselves sufficient to reverse the findings of the judge, either as to indecent touching or as to slam down. I do, however, agree with Ward LJ that, while there is evidence that the girls were aware of sexual activity between their mother and S, there is no evidence, apart from the playing of slam down, of the father sexually abusing one child in the presence of the other.[85]For these reasons my conclusions are in some respects different from those of Ward LJ but, since they represent a minority view, it will serve no useful purpose for me to elaborate them further.

Sir William Aldous :

[86]At the conclusion of the hearing of this appeal I believed that the appeal should succeed. Having read the judgment of Ward L.J., with which I agree, there is nothing that I wish to add.