“She needs to be always in control. She will never do what you ask, she will lie because she knows you want the truth, she refuses to answer questions …. She shows no remorse for anything she does ….From the minute she wakes up to the minute she goes to bed she tests me to see my reactions. She will do or say anything to get a reaction …. She doesn’t see anything wrong in lying and being nasty to get what she wants.”
“1 December 2017 . E disclosed that K [her mother] had sexually abused her and C. She said she would pinch the front of her vagina and also put her fingers inside her vagina. She said it was either one or two fingers. They would be kept inside for quite a few seconds. K would smile or laugh when she was doing it because it hurt E. She would hurt them first by pushing them over or into things like the bed before she hurt their vagina. E says they were usually naked when K hurt them.”
“E said that she used to shower K a lot. She would have to wash her ‘flu and bottom’ with her hands because there were no sponges. K got C to do this on few occasions but if E found out she would stop her and do it herself.”
“Counsel: When she is talking on 1 December, does she use the word ‘vagina’ or is that your word? Mrs W: That’s my word. Counsel: Does she actually say: put her fingers inside her vagi- Mrs W: Used the word ‘flu’. Counsel: Used the word ‘flu’. Does she actually say the word ‘fingers’ or does she describe the action, which you then put in here? Mrs W: She actually … she said that, well, it had happened to her. K had done it, and I said – she couldn’t explain it at first, and then she said there was a Minions onesie hanging at the end of the bannister, and the hood was, sort of, hanging down, so it was shaped like that. And I said, ‘Can you show me on there?’, because she was struggling to explain it, and then she did, she got her fingers and put them in as if she was putting them inside.”
“Counsel: … she went to the interview with a special box, didn’t she? Mrs W: Yes. Counsel: Whose idea was the special box? Mrs W: That was mine. Counsel: The special box contained notes, which contained allegations, didn’t they? Mrs W: Yes, so that she could – because she said she was forgetting stuff, and that would just jog her memory, so… Counsel: So correct me if I am wrong, between the discussion that had been had at the school and the ABE interview – Mrs W: Yes. Counsel: - she said she was worried she would forget, or something like that, or get it wrong? Mrs W: Yes, because obviously when you’re under pressure, it’s – it can be quite difficult, can’t it? She was, like, dreading the interview. Counsel: So before 8 December, she appears to have told you about allegations using words, and now she is writing them down. So, the first note that goes in the box, how does that come about? Mrs W: …. (Pause). It’s just because they’d said, like, ‘if you want to write things down, if it’s easier’, so I said that to her, you know, ‘if you want to just write it down’, so she was in her room, and she just wrote a couple of lines … Counsel: Were you with her in the room? Mrs W: No. Counsel: But you suggested she puts them in a special box? Mrs W: Yes. …. Counsel: But you suggested she puts them in a special box? Counsel: Okay, so had you seen the contents of the notes before she went into the interview? Mrs W: Yes, I’d read them, but I … I just knew it was a few lines, she didn’t write a lot. Counsel: So, if she had written a few lines, would she come and show you what she had written? Mrs W: Yes.”
“Now just before I ask Vicky [another officer] to turn the recording on, we did truth, or tell the truth in the rules didn’t we? And we also did, if you don’t understand something, that you can just tell me that you don’t understand.”
“… we’re here to talk about somebody else today. Can you tell me who we’re here to talk about?” 21. E immediately replied by saying her mother’s name. After the officer asked some questions to establish who K was, the interview continued: “Officer: Tell me what it is that we’ve come to talk about today. E: The stuff that she did. Officer: The stuff that she did. Tell me about the stuff that she did then. E: It’s in one of these notepads.”
“Just think, you wanted to come here, you said that you was well, that you wanted to come and what it is you want when you come … Imagine, the other side of this, go walking out the door having said everything you need to say and how you’ll feel when you go out that door. How you felt last time. You remember? You’ve just got to get through this difficult bit and then the other bit … You’ll feel wonderful. You felt so much better last time, didn’t you? Imagine that, think of that, sometimes you have to do hard things, don’t you? So you get better.” 24. The officer and Mr W added their encouragement: “Officer: … Come on, I need you to be brave. Mr W: Go on, be brave. Go on. Officer: It won’t be too much longer, it’s just these words that I need you to say ….”
“At this point I pause to make comment upon the evidence of Mrs W. I say without hesitation that I found Mrs W to be a credible and honest witness. I have no doubt that having committed her family's lives to the welfare of E and C she has acted entirely consistently with her love for the children and her desire to parent them in the best way possible. There are elements of Mrs W's conduct which could be open to criticism; I have no criticism for Mrs W, or, indeed Mr W. Everything that Mrs W has done in respect of the children, and particularly in respect of E, has to be regarded in the context of caring for a child displaying behaviour which would test any parent's ability to provide consistent and safe care.”
“30. During the period between the initial meeting and the first ABE, E wrote four notes. How these notes came to be written must be put into the context of Mrs W taking certain actions in a well meant but potentially misguided way to support her child. 31. Mrs W has a history of caring for others and a genuine interest in matters of a psychological nature. Further to this interest Mrs W is advanced in her training to be a counsellor. For specialist lawyers and other trained professionals, it would be easy to criticise Mrs W for helping E in a way which might contaminate or prejudice E's future evidence. For example, Mrs W bought dolls for E to help her express herself around this period. Mrs W introduced child friendly books on attachment to E. In order better to understand E, Mrs W attended a course regarding attachment and bonding. E was and remains a highly vulnerable child and a well-informed professional may question, not the motive of Mrs W, but her actions. Turning to the context however this was a Special Guardian who had committed herself and her family to the care of a child who was demonstrating behaviour of the most challenging nature and, as is often the case, was receiving little by way of practical support from the local authority. This was a woman who was at her wits end in trying to maintain a stable and safe environment for E and C whilst protecting the safety of her natural children. Rather than Mrs W being criticised she should in my judgment be applauded for persevering with such a caring nature in the circumstances. 32. Returning specifically to the four notes used during the first ABE interview, it is Mrs W’s evidence that she encouraged E to write down what she wanted to say to [the police officer] during her interview to ensure that she said everything she wanted to say. Mrs W was adamant that the notes were written by E and without any direct or indirect input into the content of the notes from Mrs W or anyone else. Having heard Mrs W give evidence on this point I am entirely satisfied that this is the case.”
“The notes were used during the first ABE interview largely as a way of [the officer] reading the notes out loud to E and then asking her to expand what she had written. The notes were used as an aide memoire. Once the notes had been used to help E say what she wanted to say E then went on to confirm and elaborate, freely, in a way which was consistent with her age and stage in life.”
“Unlike the previous note, however, having heard Mrs W’s evidence I am not satisfied that E [wrote] this note whilst she was alone. It is my view that that Mrs W was present whilst E wrote the note and that it is more likely than not that she prompted E to include details which E had previously relayed to Mrs W.” 29. At paragraph 37, he summarised the second interview, noting the intervention of Mr and Mrs W and observing: “The frustration of Mrs W is palpable; during her evidence Mrs W confirmed that she was indeed frustrated. In order to secure E's cooperation there follows about five minutes of dialogue between the adults who talk across E. Anyone watching the video would be forgiven for concluding that E was being put under pressure to repeat her allegations against PB. The interview continues with only E present for a further 20 minutes. During the remainder of the interview, E makes two allegations against her uncle PB. The first involves digital penetration while [he] removed her from the bath and the second during a chance encounter in the street, while she was running an errand (aged three years). The first explanation raises issues with inconsistencies as to how E was being held while the alleged penetration took place. The second lacks overall [credibility].”
“That said, the report is not mentioned by either leading counsel for the respondents and neither therefore have attempted to explain away the psychologist’s stated opinion that the reported behaviour is consistent with (but not diagnostic of) the child who has been sexually abused.”
“Overall, I find [the mother] to be unreliable as a witness except where she confirms matters which are provable by other means.”
“49. The key element of this case is the interview evidence with E. I have to consider in the first instance whether the breach of the guidance during the initial interview at school was so manifest as to contaminate the integrity of the subsequent interviews so as to reduce their value to a point where their evidential value vanishes. 50. I will deal firstly with the allegations against the mother. The initial interview is concerned with allegations against the mother, not PB. Having carefully considered the interview I am sufficiently satisfied that it stands alone and is not fatally damaged by the initial [conversation] as to render it of no value. 51. The ABE interview conducted on 22 December is notable in that E does not initially volunteer a free expression of what she wants to say. Instead E refers to notes she has brought with her. I accept Mrs W’s account the notes were the work of E. E was nearly nine when being interviewed. She was recalling events she said happened five years previously. The interview was conducted calmly. E showed no signs of stress and was quite happy to confirm her written allegations. The manner in which E conducts herself within the first interview has an air of authenticity. The descriptions that E gives as to life with her mother paints a picture that is corroborated by what we know, that the mother's life was chaotic and that she lacked boundaries. 52. E's descriptions of her mother's behaviour has details which further the sense of credibility, such as her mother pulling a funny face when E inserted her fingers into her mother's vagina. It also, however, has details which Miss Henke describes of smacking of fantasy, such as the mother using a drawing pin. As we know, the way the memory works is not like a filing cabinet where things get lost, but what remains maintains a constancy. Memory works as reconstructions where things can get altered every time recall is required. No-one recalls everything perfectly every time they are asked to do so. In the case of E, I can see that there are elements of her recall which might not make immediate sense, but there is sufficient of an overall picture for her recollection to have good potential to be reliable. 53. Around the time the allegations are said to have occurred [the mother] was drinking to great excess. I have particular regard to the mother's propensity to lie which is conceded by her counsel, and the mother’s demonstrated lack of boundaries. 54. E's behaviour leading up to the allegations includes acting out in a sexualised way. Her extreme behaviour is not, however limited to sexualised acting out. The behaviour is that of a troubled child. 55. I have considered the weight to be attached to the undisputed fact that the mother does not have any previous history of sexually abusing any child. This case is not about a parent who has consciously set out to abuse her daughter. As I see it, this is about a parent who has allowed inappropriate conduct of a sexual nature to occur and who has not had the proper sense of boundaries to stop it. Indeed, even if the mother understood what was happening her ability to stop the events would have been fatally compromised by her state of intoxication. 56. Much of the touching of E and E's touching of the mother was of a sexual nature thereby rendering the abuse sexual. Whether [the mother] has a memory of what is alleged to have happened I am unable to ascertain as I find her evidence inherently unreliable. 57. As I have stated, I have great respect for Mrs W and the quality of her evidence. I am aware that she has probably fallen victim to an understandable element of confirmation bias. Having decided that she believes E, she is prone to believe everything that E says. Mrs W's evidence of what happened to E is hearsay. and I approach it as such, giving it the weight I consider appropriate. I see Mrs W's role in this process as a collator of evidence. In this context she is an accurate historian of E's behaviour and in my view, accurately relays the content of what E has said to her. 58. I have considered whether E may have been motivated to make the stories up about her mother in an attempt to secure her position with Mrs W. I am concerned that E would have been deeply affected by seeing her two mother figures fight at the contact centre. I am equally concerned as to what the state of E's knowledge was about the possibility of the placement coming to an end. If this was E's motivation all she had to do was to alter her behaviour. If she was that calculating, she would have known that. Her IQ is lower than average but does not suggest an inability to see things how they are and to react accordingly to avoid undesirable outcomes … [In] my judgment, having regard to all the circumstances and what we know about E, I have reached the conclusion that is improbable that this would provide an adequate explanation for her making up such detailed allegations against her mother and being prepared to repeat them to a police officer. 59. It is suggested that E was acting out behaviour she had witnessed via the television or internet. None of us can be sure what children experience from sources external to our homes. E was eight when she made the allegations, not a teenager. Mr and Mrs W are experienced and responsible carers of their own three children of mixed ages and, of course the two girls. With the exception of a comment made by Mrs W that E had provided an explanation for her own sexualised behaviour from the TV there is no evidence to support a contention that E has behaved the way she has or made up such specific allegations by watching pornography. Further her behavioural concerns are not limited to sexualised behaviour, far from it. 60. E's behaviour, overall is alarming. I refer to the email from Mrs W. In my judgment behaviour of such an extreme nature has to weigh heavily in the balance when considering the facts as pleaded. 61. Looking at all the evidence in the round I am satisfied that the Local Authority has proved its case on the balance of probabilities against [the mother].”
“Having pressed Mrs W on the point I have reached the view that Mrs W was present when the note was written and it would be a short step from there to conclude that elements of the contents of the note have been prompted. If this did happen, and I think it probably did, this does not in any way detract from my respect for Mrs W.”
“Memory is prone to error and easily influenced by the environment in which recall is invited …. Delay between an event recounted and the allegation made with respect to that event may influence the accuracy of the account given.”
"Evidence cannot be evaluated and assessed in separate compartments. A judge in these difficult cases must have regard to the relevance of each piece of evidence to other evidence and to exercise an overview of the totality of the evidence in order to come to the conclusion whether the case put forward by the local authority has been made out to the appropriate standard of proof."