R (A Child) v Devon County Council & Ors [2008] EWCA Civ 817

[2008] EWCA Civ 817Case No B4/2008/0671/CCFMI
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM EXETER COUNTY COURT
HIS HONOUR JUDGE TYZACK Q.C.
EX07C00013
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 15/07/2008
Before
LORD JUSTICE LAWSLORD JUSTICE SCOTT BAKERLORD JUSTICE WILSON
Between
R (A CHILD)Appellant
Anthony Ward (instructed by Hartnell Chanot) for AppellantTina Cook (instructed by Devon County Council) for First RespondentJ. I. Farquharson (instructed by Ford Simey) for Second RespondentChris Godfrey (instructed by Foot Anstey) for Third RespondentsHearing Hearing date: 22 May 2008
Judgment
[1]This is an appeal against a decision of Judge Tyzack Q.C. in the Exeter County Court on 28 February 2008 in a fact finding hearing in the context of an application for care orders.[2]The children in respect of whom the care orders were sought are K who was born on 28 April 1996 (now just 12) and A who was born on 5 August 1997 (now 10).[3]The fact finding hearing concerned C who is K and A’s elder brother. He was alleged to have sexually abused K. He was born on 13 September 1991 and is aged 16.[4]The applicant in the care proceedings is the Devon County Council who is the first respondent to this appeal. Mrs R is the mother of all three children and is the second respondent to this appeal. The father lives far away in the Philippines and has taken no part in the proceedings. K and A are the third respondents to the appeal and are represented by their guardian Mrs Hepworth. C is involved in the proceedings as an intervener. He became an intervener because of the allegations by K that he had sexually abused her. He is the appellant in this appeal.[5]Both K and A are now in foster care at a primary school nearby. The relationship between K and her mother has completely broken down and the local authority is asking for a final care order to be made in her case. There are other issues concerning A that are not directly relevant to this appeal.[6]Judge Tyzack had to find on the fact finding hearing whether or not C had indeed abused his younger sister K. Background[7]The family had been known to social services for a number of years and moved to Devon around 2004/2005. Devon Social Services commissioned a report on the family from the NSPCC. The report – called Operation Quartz – was completed in March 2006; it raised a number of matters of concern about the family including physical, sexual and emotional abuse.[8]The care proceedings were commenced on 15 March 2007 and were precipitated by K’s allegations of abuse by C that she had made on 25 January 2007. Devon Social Services relied in support of their application for care orders on(i) historical evidence of abuse and neglect by the mother and her partners and(ii) sexual abuse of K by C. Included in the background were similar allegations by K against A S, the mother’s former partner, in 2004 and repeated in May 2006. The background evidence also revealed that the household was a sexualised one where adults were prone to talk inappropriately about sexual matters in front of the children. Although allegations of sexual abuse had been made concerning family members, these had not led to any court action. The present allegation[9]On 25 January 2007 K was found to have written in a book that she had made at school that C had put his willy up her bum. Devon Social Services were informed and the mother agreed to K being voluntarily accommodated. The police and the local authority began an investigation.[10]On 26 January 2007, a Friday, K was interviewed in the interview suite at Hawkins House, Exeter. The interview lasted for almost an hour and it is common ground that it was entirely appropriately conducted. In summary what she said was as follows.• C stuck his willy up her bum the previous Wednesday.• On the previous Saturday he had put his willy up her bum and when she woke up it was all wet and made her bum feel “all wet and squidgey” and “it was all sticky”.• Sometimes it was at the back and sometimes at the front.• She had seen C’s willy “white and pointy” and “sticking up”.• Asked what it felt like she said “it did not really feel like anything”. Later she said “then all this wet stuff came out again and then he said “go on your bed” and “it was all sticky again and white” and “it was just dribbling down my leg.”• The abuse had happened to her twice at one house, a few times “more than twice – about 5 or 6 times” at another house, about 10 or 11 times at a third house and then about 15 – 16 times at a fourth house. Later she said it had happened once at a guest house.• She confirmed that it usually happened “at the front” but twice “at the back”.[11]The judge saw the video of the interview twice, once on his own before the hearing and once on the first day of the hearing. He also read the transcript.[12]K refused to be medically examined in January but was eventually examined on 4 April 2007 by Dr Charles Holme and another doctor.

The judge said this about their evidence:

“Both agreed that although some changes were noticed in her anal margin which might suggest repeated anal abuse they were not necessarily diagnostic. The genital area was found to be normal with no damage noted to the hymen or other parts of her external genitalia. Dr Holme’s evidence is that normal findings do not rule out the possibility of repeated penetration …..but given that the allegation was over a length of time, it would be surprising if there were not some pathological changes if penetration had occurred on a regular basis….”
In his oral evidence Dr Holme said that in a young pre-pubertal girl the hymen is “stretchable” and thus there are not always physical signs even when there has been full penetration. He said that if there had been a medical examination within 48 hours of the last allegation “there might have been some signs.” So essentially I find Dr Holme’s evidence inconclusive…..” So essentially I find Dr Holme’s evidence inconclusive…..”[13]The judge also heard forensic evidence from Ms Rowlands and Dr Douse. A pair of pyjama bottoms had been found in the mother’s home, which K had been wearing on 25 January 2007 and these, together with a pair of K’s knickers, were submitted to the forensic science laboratory for analysis. Mouth and penile swabs were also taken from C.[14]Ms Rowlands had been employed by the Forensic Science Service at Chepstow since 2000. In her first report she said semen was detected on the inside left front of the pyjama bottoms and a sample of semen was submitted for DNA profiling. The DNA profile obtained matched that of C. She concluded:
“The presence of semen attributable to (C) on the inside left front of the pyjama bottoms taken from (K), provides very strong support for the assertion that a sexual act has occurred, during which semen was ejaculated and whilst wet deposited onto the pyjama bottoms.”
[15]Ms Rowlands examined penile swabs taken from C and compared his DNA with mouth swabs taken from K. She found no DNA attributable to K on the penile swabs. She said:
“…..the absence of any apparent DNA attributable to (K) on the penile swabs……does not mean that (C) did not have sexual intercourse with (K) as alleged. It is entirely possible for such an incident to have occurred without detectable levels of DNA being transferred to the items examined. As such the scientific finding should be regarded inconclusive in relation to the allegation.”
[16]In her oral evidence she said she was in no doubt that she had found sperm heads on the pyjamas and that the DNA profile was that of C. She agreed that she was also asked to examine K’s knickers which she had worn after the alleged abuse had occurred and that she had found no semen on them or more particularly in the gusset. The absence of semen was, she said, inconclusive. She said she would have had a ‘low expectation’ of finding K’s DNA on the penile swabs taken 48 hours after the alleged abuse, since it can be lost or wiped away. She was equally confident in her view that for traces of semen to be found on an item of clothing it would have needed to be wet in order for such transference to occur. If there had been no internal ejaculation and K had wiped the semen off “as she said she did” then Dr Rowland’s view was that this would be consistent with no semen being found. On the other hand, if there had been partial or full internal ejaculation then some seepage could be expected.[17]The judge described Dr Douse as disagreeing with Ms Rowlands on almost every aspect of her evidence. He was unimpressed by Dr Douse, finding him unnecessarily combative and argumentative. He said that in the circumstances he had no hesitation in preferring the evidence of Ms Rowland. He did not think Dr Douse should be involved in Children Act work until he had been properly trained. No challenge is made to this preference nor, in my view, could any be.[18]It is necessary to say a little more about how K’s allegations came to light. There was evidence from A in the form of a C.A.M.A.T. interview that took place on 5 March 2007 that K had told him on the way to school on the day she disclosed the abuse at the school that C had been abusing her. A asked her how and she said she would tell him later but never did.[19]Evidence from Sharon Tarr, a teacher at the primary school, revealed the following. On Thursday 25 January 2007 about 12.45pm she was outside a classroom with both K and her friend M. K told her she had a secrets book which she then found out that she had made at lunch time. K opened her book and showed her a page which had something like FRIENDSHIPS/PROBLEMS at the top. This page then went on to say that she was not happy that she and M were not allowed to sit together in class. Ms Tarr spoke about a possible solution and then handed the book back to K.[20]About 2.30pm K told her she wanted her to look at her book again. However, she said that there was a page in it which was private. K then went on to say that she wanted Ms Tarr to look at the page but not to tell anyone about it. Ms Tarr explained that if anything on the page caused her concern about K’s safety she would have to tell someone about it. K agreed that she could look at the book. K handed her the book opened at the page that she wanted her to read. At the top of the page appears the word “Secrets.” Immediately under that are the words, “my uncle” crossed out and under that the words:
“my brother C puts his willy up my bum and somethine (presumably intended to be “sometime”) at the front manly at the front.”
There was nothing else on the page. K told her that her friend M had written something similar in her book. Ms Tarr spoke to M who handed over her book. In it was written Secrets at the top and then underneath:
“my Uncle David puts his willy up my bum and sometime at the front manly at the front.”
Both K and M had omitted the letter i from the word mainly. The wording of the two so-called secrets was virtually identical.[21]In her oral evidence Ms Tarr referred to another occasion when K had written something in her religious education book. She said it was to do with forgiveness and whether she could forgive him for sticking his willy up her bum. Ms Tarr passed this to the head teacher.[22]As the judge observed, it was clear that each child, K and M, was making an identical allegation, K against her brother and M against her uncle. It is said that M later withdrew her allegation, saying that she had copied K. That is puzzling, bearing in mind that the words “my uncle” had been crossed out in K’s book. The judge said that the similarities in the two girls’ allegations, coupled with the fact that M withdrew hers later, clearly gave rise to concern. He did not, however, explain in any detail how that concern was allayed.[23]C gave evidence and totally denied abusing K whether anally or vaginally. The allegations were completely untrue. Our attention was drawn to two passages in C’s evidence: Q: I know we’ve all talked about anal sex, C but have you done anything else to K? Have you ejaculated over her? A: No. Q: Have you tried to? A: No. And a little later Q: C, you are lying about this, you’ve had sex or something approaching sex with K both anally and vaginally, haven’t you? A: No. So it is perfectly clear that C was denying both anal and vaginal penetration and sexual abuse falling short of it.[24]Mr Anthony Ward, who has appeared on behalf of C, submits that the evidence does not support the judge’s findings that the abuse was on a few occasions in the vicinity of the anus but more repeatedly in the vicinity of K’s vagina and that C may on some occasions have achieved partial penetration but in circumstances where no force was used. This, the judge found, would all be consistent with Dr Holme. Furthermore, the judge never suggested he might find that less than full penetration had occurred and C was never given an opportunity to deal with this.[25]The judge correctly directed himself that the standard of proof was the balance of probability. He went on to say that the more serious the allegation the more cogent the evidence must be before the balance can be found and tip in favour of proof. He was, of course, following the approach of Lord Nicholls of Birkenhead in In re H (Minors/Sexual Abuse: Standard of Proof) [1996] AC 563. Since the present appeal was argued the speeches of their lordships in In re B (Children) F C [2008] UK HL 35 havebeen handed down. Baroness Hale pointed out at para 72 that there is no logical or necessary connection between seriousness and probability. She said at para 70 that the standard of proof in finding the facts necessary to establish the threshold under section 31(2) of the Children Act 1989 or the welfare considerations in section 1 of that Act is the simple balance of probabilities, neither more nor less. She added:
“Neither the seriousness of the allegation nor the seriousness of the consequences should make any difference to the standard of proof to be applied in determining the facts. The inherent probabilities are simply something to be taken into account, where relevant, in deciding where the truth lies.”
[26]The judge was thus, if anything, applying a more stringent approach than that which Baroness Hale has now clarified as being appropriate. He correctly directed himself that these were very serious allegations for a sister to make against her brother and that they required cogent evidence. Mr Ward submits that the judge misstated the allegation in paragraph 11 of his judgment by saying that C had sexually abused K by putting his penis in or towards both her anus and vagina and then ejaculating and that his finding that the abuse took place in the vicinity of her anus but more repeatedly of her vagina is not justified.[27]Now it is true that the thrust of K’s evidence was that there had been penetration but as Ms Cook, for the local authority, points out at no time was the depth of penetration mentioned by K and when she was asked on one occasion, “where was it, whereabouts, you’re saying front and back” she said it was “just sort of in that area”. Taking the evidence as a whole, including K’s age, the evidence of Dr Holme and the fact that semen was found on the inside left front of her pyjama bottom I am fully satisfied the judge was entitled to conclude as he did that K was never fully penetrated and that the abuse was on a few occasions in the vicinity of her anus and more repeatedly in the vicinity of her vagina and that partial penetration may have occurred on some occasions. In truth the evidence of Dr Holme and Ms Rowlands together made a strong case that abuse had taken place but that it was short of full penetration.[28]The second point taken by Mr Ward is that the judge never suggested he might find that abuse less than full penetration had taken place, and that neither C nor his counsel had an opportunity of dealing with it. He relies on the observations of Ward L.J in InRe B (Children) [2006] EWCA Civ 1186, but it seems to me that that case was dealing with entirely different circumstances. In the present case C made it clear from his answers, to which I have referred, that he was denying that any form of sexual misconduct had occurred. There is thus no question of his having suffered any injustice. In the present case the judge did not make any finding that abuse had occurred on any occasion that was not the subject of allegations. The judge saw K’s video interview twice and was entitled to form a favourable view of her evidence. The allegation that she had been sexually abused was corroborated by the evidence of semen on her pyjamas. Thus he was fully entitled to reach the conclusion that he did.[29]However, there were other features about the evidence which, it is argued, pointed against abuse having occurred and which were either not dealt with by the judge at all or were only referred to cursorily. Taken together, so it is said, these matters could, if properly considered, have tipped the scales the other way. Mr Ward argues that without detailed findings on these matters it is impossible to know whether the judge’s conclusion that C had indeed abused K is justified.[30]Mr Ward submits that the main thrust of C’s case at the hearing was as follows:• The medical evidence and forensic evidence was inconclusive.• The police evidence was insufficient to mount a prosecution.• The secrets book evidence was very worrying.• The historic evidence was such that in a sexualised household K would have picked up a lot of knowledge and descriptions about intercourse and related matters that could account for what she said in the C.A.M.A.T interview and there was no opportunity to cross-examine her to establish whether this undermined her evidence.[31]There was evidence that on the face of it favoured the appellant’s case and suggested K may not have been telling the truth. In my view there is some force in the submission that the judge should have explained more fully what his findings were about this evidence and why any concerns raised by it were overridden by other factors. At the forefront of this evidence was the similarity of the entries of K’s and M’s secrets books. It is said that M copied K and later withdrew her allegation. However, the crossing out of “my uncle” by K is more consistent with K having copied M.[32]The judge rightly said that the similarities in the two girls allegations coupled with the fact that M withdrew hers later clearly gave rise to concern but he did not explain convincingly how his concerns were allayed. What he did say was it was significant that Ms Tarr felt she ought to take what she was reading seriously and, perhaps more significantly, that there was nothing in the girl’s demeanour to suggest they were playing games or making up stories. The judge also referred to Ms Tarr’s evidence that K was no more honest or dishonest than most children. He also referred to Ms Tarr’s oral evidence (of which we do not have a transcript) and her reference to another occasion in which K had written something in her religious education book about forgiveness for sticking his willy up her bum.[33]The reality is that it is very difficult to know what weight the judge gave to the matters that he said gave rise to concerns. What is clear is that whatever it was was overridden by his belief that K’s broad account was essentially true, corroborated as it was by semen on her pyjamas.[34]I have read carefully the submissions made by Mr Ward to the judge at the conclusion of the evidence. He made a number of points that included the following:• The allegations spanned a period from 2000 to 2007 and the conduct continued at each address at which K lived. C was too young for anything to have occurred in 2000 and there were evidential difficulties with it having occurred at at least one of the addresses.• The allegation was penetration took place 36 times.• The house was in such a mess with clothes everywhere that there was a real possibility of contamination of K’s pyjamas with C’s DNA.• There was insufficient evidence to mount a criminal prosecution.• On 23 March 2007 K said to the foster mother, Mrs B, that C did the same thing to A as he did to her; they would take it in turns. A did not say so in his C.A.M.A.T interview and K could have been bolstering her case when she knew C denied having abused her. K did not mention in her C.A.M.A.T interview that A had been abused by C.• There were other things said by K to Mrs B on 6 February 2007, 27 March 2007 19 and 20 April 2007 which raised doubts generally about her credibility and honesty.[35]There was also an issue at the hearing about A S, the mother’s former partner, having possibly abused K. The judge referred to this in his judgment and pointed out he was not trying issues relating to A S and that he was far from convinced by the evidence of D, K’s elder brother. He said it was quite impossible to rule one way or the other whether the allegations against A S were true. Again, the judge plainly had this element of background in mind and if he felt anything relating to it impinged on the reliability of K’s evidence he would have said so.[36]These and other features of the evidence should, it is submitted, have caused the judge more concern than they did. He should have analysed the evidence with more obvious care and in particular indicated what weight he gave to documented material tending to show that K was prone to be untruthful. Conclusion[37]Many judges would in my view have conducted a more detailed analysis of the evidence than Judge Tyzack did, but the points had all been made forcefully to him by counsel in submissions and he plainly must have had them in mind. It is clear that the judge found the evidence of C’s wet semen on K’s pyjamas compelling. It was, as Ms Rowlands said, very strong support for the assertion that a sexual act had occurred. It was not disputed that the C.A.M.A.T interview, which was credible and persuasive, was properly taken and the judge was entitled to believe K who has repeated and never retracted her allegations.[38]I have asked myself whether the judge’s findings against C can safely stand and I have concluded that they can. I would therefore dismiss the appeal. Lord Justice Wilson.[39]I agree. Lord Justice Laws.[40]I also agree.