“Myself and [the officer] was in the room alongside, [father’s partner] and dad. I asked what she had told daddy she said she was " sore ", I asked where, she pointed to her genital area, I asked what she called it, she didn't answer at first, I said I call mine my " foo foo " F said she calls hers a " flue" I asked how her Flue got sore ? no answer, I asked if anything or anybody has hurt her, F said "D " I asked what he has done she said touched her, I asked what she had on she said a dress, pants and tights on. I asked where she was when this happened she said in the kitchen in the morning. I asked who else was in the kitchen, she said X [D’s daughter] and mummy. I asked if this was the first time D had hurt her, she said " no " I asked what D had hurt her with she said with "G's toy ", I asked what the toy looked like she said a "spinning toys and it was hard " dad told me that mummy said to D " Stop", F said she cried and mum gave her a cuddle.”
“The strategy adopted related to the colour of the chairs in the room. F was asked whether describing the colour as red was a truth or a lie. She said a lie. When asked if saying it is blue was a truth or a lie she also said lie. She correctly identified the colour as blue when asked what colour it is in fact. The intermediary clarified that calling it blue is a truth and explained the importance of telling the truth.”
“DC: Right tell me why we’re here today. F: Cos D has played with my flue. DC: D played with your flue? F: And X. DC: And X, X. What did D do: F: Played with it? DC: OK tell me what he did. F: (non verbal – F put her right hand between the top of her legs on her private area) Pressed on it, on it (stet) first and then played with it.”
“The edge of F’s hymen was very irregular and still slightly swollen, although the amount of swelling had improved since she was seen in January 2021. Her hymenal tissue appeared pale and there appeared to be evolving shallow notches in the 3 o’clock, 5 o’clock and 9 o’clock position.”
“These clinical findings together with F’s very clear disclosure of penetrative sexual abuse are very worrying. The clinical findings support F’s allegation of penetrative abuse.”
“There was an area of localised redness adjacent to periurethral bands in the 2 o’clock position of the vulva. The hymenal margins were opposed and not clearly visualised. No acute injury to the hymen was seen – no bruising, bleeding or lacerations seen. The hymen was not oedematous or red. There was no vaginal discharge.”
“The observed vulval redness could be caused by local physical irritation including digital penetration, chemical irritation or infection as seen in vulvitis.”
“He describes the notches seen in her hymen as defects that do not completely transect the hymen and could be shallow or deep. He refers to a research article which notes that notches in the hymen have been noted in prepubertal girls with a history of penetrative abuse and in those without such a history but deep clefts in the hymen are associated with penetration. His conclusion is that the notches observed in F appeared relatively deep, although that is subjective, and were suggestive of penetration. It is not possible to determine precisely how or with what the penetration occurred.”
“68. There are a number of persons potentially in the frame as the perpetrator of the abuse. The clear effect of the totality of the evidence is that Father is not one of them. The others mentioned by F apart from the Intervenor are not, in my view, credible candidates. The reports are from family members and mostly not repeated more than once. The circumstances were such that the family dynamics render the reports unreliable. It may well be the case that F did say what has been reported and it may be that she has a perception of being hurt in some way, …. None of the allegations are corroborated….I do not consider that any of the persons mentioned by F, other than the Intervenor, are likely to have abused her. 69. The Intervenor is in a different position. In his evidence he acknowledged that there were times when he may have had the opportunity. His evidence about effectively avoiding F is not consistent with his evidence that they had a close relationship and he tickled her. F’s allegation is repeated and reasonably consistent in its essence. In the circumstances I do conclude that he was the perpetrator of penetrative abuse of F and that it was not just one occasion.”
“1. F suffered physical, sexual and emotional harm by way of sexual abuse including penetration. In particular as described below F suffered pain and was exposed to sexual abuse and emotional harm as a consequence. A. On a date or dates prior to21 January 2021 F was sexually assaulted by the intervener on a number of occasions B. The intervener used a blue object and his finger to penetrate F. 2. The evidence is not sufficient on a balance of probabilities to find that first respondent mother was present and aware of the abuse described above. 3 There is no detailed evidence before me on which I can find a history of acrimony between the maternal and paternal sides of F’s family or what was the manifestation of such acrimony. It is, however, the case that both mother and father accepted in evidence that there was acrimony and there is reference to [it] in the evidence of other witnesses. Acrimony would be likely to show that the parents were unable to prioritise F above their own acrimonious difficulties but their acknowledgement of the acrimony may ameliorate that effect. Such acrimony would have been likely to cause F emotional harm. 4. The first respondent mother is unable to prioritise her children’s needs above those of her own to protect them and keep them safe from harm, she did not identify the potential risk of sexual harm posed to her children from the intervener by indicating that she sought to resume her relationship with him and continued it for some time. The first respondent mother is unable to act upon and intervene when made aware of significant risks to F and G. Her failure to protect places the children at risk of significant sexual abuse and emotional harm. 5. The second respondent father has not abused F in any way.”
“The learned judge erred in giving weight to certain factors whilst ignoring others in his analysis of the evidence and as a consequence was wrong to make findings that the applicant sexually abused F. In particular the learned judge did not conduct any adequate weighing or analysis of the following factors: (1) The context in which F’s allegations were made and reported including the potential for influence upon her narrative and a distortion of the allegation by her father’s role in it. (2) The fact that multiple professionals, including the officer conducting the ABE interview, concluded that F did not have an understanding of the difference between truth and lies. (3) The maternal grandmother’s evidence that F said ‘her daddy has told her to tell’ professionals that D and her maternal step-grandfather had hurt her. (4) The credibility and consistency of F’s allegations. (5) The significance of F’s reported behaviours. (6) The appellant’s credibility.”
“There is a real possibility of the applicant succeeding on an appeal on the ground that the Recorder failed adequately to analyse the evidence and failed to deal with significant evidential matters prior to making findings against the applicant. Further it is arguable that the Recorder fell into error in declining to respond in its entirety to the request for clarification of his judgment.”
“He was also cross examined about some discrepancies between his description of the initial statement by F and the receptionist at the doctor’s surgery. Insofar as there was some discrepancy he maintained his evidence. The receptionist did not give oral evidence. The circumstances of that first statement by F were generally explored and in essence he said that he did not seek to influence her and it was spontaneous. He had telephoned his mother to speak to her about it but F was in the car and at that point he was out of it.”
“Nonetheless the allegation made by F was at the beginning of the questioning and without undue prompting. That should have been sufficient to determine that a full investigation was warranted.”
“It is clear that F has difficulty with the concept of truth and lies and that has been noted in various situations by a number of professionals. That does not automatically invalidate anything that she may say, however. Taking the interview as a whole and particularly the allegation at the beginning against the Intervenor it does seem to me that F makes a cogent and clear allegation. Later in the interview when she is less engaged and more prompted she makes allegations that Mother was present. Those are less coherent in themselves and the circumstances of their making is such that it is not so clear whether she is really talking about Mother being aware of abuse.”
“A lack of reliability may obscure truth, but it does not altogether eliminate its perception. So long as the judge remains alert to the dangers arising from unreliability and exercises the caution due to that, it may be possible to discern flashes of truth or incidents that have about them the ring of truth. Where the judge meets that, and, having exercised all due caution, is convinced of it, then the court has not only the right but the duty to act upon it.”
“There are differences in the detail, particularly where and in what circumstances, in F’s description of the abuse. They could indicate that the allegation against the Intervenor is not reliable. On the other hand she is remarkably consistent with the basic facts of the allegation to a number of different people in very different circumstances over a remarkably long period of time.”
“There is also corroboration of abuse having been perpetrated on F in her changed behaviour. It seems to me that Mother’s description of her being clingy is in fact a change in her behaviour rather than the way she behaved before the Intervenor came into her life. [The current social worker] points to a number of factors which cause her to conclude that F was exhibiting typical signs of a child who had been abused. Father describes troubling incidents, some very proximate to when the abuse is likely to have occurred.”
“16. First, it is the responsibility of the advocate, whether or not invited to do so by the judge, to raise with the judge and draw to his attention any material omission in the judgment, any genuine query or ambiguity which arises on the judgment, and any perceived lack of reasons or other perceived deficiency in the judge's reasoning process. 17. Second, and whether or not the advocates have raised the point with the judge, where permission is sought from the trial judge to appeal on the ground of lack of reasons, the judge should consider whether his judgment is defective for lack of reasons and, if he concludes that it is, he should set out to remedy the defect by the provision of additional reasons.”
“The family court is overwhelmed with care cases. Judges at all levels often move seamlessly from one trial to the next without judgment writing time between them. Routine requests for clarification running to a number of pages are not only ordinarily inappropriate, but hugely burdensome on the judges who have, weeks later, to revisit the evidence and their judgment when their thoughts and concerns have long since moved onto other cases. This is not conducive to the interests of justice.”