“it is as if my brain blacks out the memory”
“After the first, obviously, my trial back in 2008, I had always had it in my head that it was going to happen again because I...and I didn't...I blamed myself for letting it, because I didn't do enough the first time to stop him then. So, I always knew that there was going to be a day that it was going to come back and it was going to happen again, and I felt like it was my fault, and even though...I don't get sort of any outcome out of this, I knew that I had to do something for...I had to do something for the kids that...that it had happened to, because I know what comes, sort of, after.”
“I can remember the lead-up. I can remember sitting there or standing there, but I cannot remember physically doing it …. I knew what happened, but I can’t remember, like, if I sort of play it back in my brain, I can’t see myself doing it, no …. I can remember the before but the acts themselves, it seems to stop, and then I can remember afterwards …. I can’t remember doing the acts themselves, but I know that I did them. I can remember doing … but I can’t, like, sort of replay them in my head …. Although I know that that is what I did, I can’t see it.”
“It is worth emphasizing at the outset that my decisions on the evidence are not influenced by opinions expressed by others. The fact that F was acquitted by a jury on one count with a hung jury on the remaining counts carries neither weight nor relevance in these proceedings. Similarly, the views expressed by other witnesses, be they police officers, family members or friends, adds no value to the evidence. Those individuals do not have access to the wealth and array of evidence before me. They will not have heard that evidence tested. They do not scrutinize the evidence in the way my role requires me to, nor will they consider and apply the standard of proof required in this court.”
“I also heard oral evidence from B who is now 22 years old, and read a statement she prepared for these proceedings. In that statement B sets out the profound effect the alleged abuse had on her as a child and young adult. This included recurring nightmares, obsessive compulsive disorder which manifested itself through repeated hand-washing and washing her mouth inside and out, post-traumatic stress disorder and becoming hyper-sexual with feelings that she was “only good to be used.”
“He vehemently denied having abused B in the way suggested in her ABE interview. F admitted to struggling to recollect the detail of the allegations and his defence given the passage of time, although he had available to him a number of handwritten notes that he had made for his criminal solicitors which were reproduced in a statement and adopted by him.”
“B’s history, which includes mental health issues and self-harming, an eating disorder and time in therapy, and her engagement in sexually risk-taking behaviour are further indications that B was the victim of abuse rather than a fantasist. Courts recognize these features as a tragic but all too common consequence of abuse.”
“I found B’s evidence to be powerful and persuasive. I do not regard B’s ‘blocked memory’ as undermining of her evidence. Indeed it appears to me to be an understandable reaction to traumatic events. I was struck by the detail given in B’s ABE interview, which was in keeping with the perceptions and understanding of a young girl, but nonetheless being clear as to what they were references to.”
“These three incidents highlight to me that J is capable of giving a clear and reliable account of events, but she is also capable of exaggeration and of telling lies, even when the consequences for others are extremely serious and even when faced with incontrovertible evidence which demonstrates her lies.”
“I have considered carefully whether it is possible that the sisters have colluded in fabricating these allegations, yet Y notably denies that she was ever subjected to any other sexually abusive behaviour by F, and denies being aware of any sexual abuse of J. The two girls have not therefore given imitation accounts.”
“They each told me, almost verbatim, that it was a standing joke that the mother always cut herself shaving which is why F showed J and Y how to do this. That it was treated as a ‘rite of passage’ with J, F, the mother and P all in the bathroom to watch as J was taught how to shave; and how there was only one single occasion when F helped when J was screaming because she cut herself. The mother tried to suggest that this experience was entirely normal but appeared shocked when asked if her own father had shaved her. It also ignored what both J and Y had reported about their discomfort at F undertaking this task.”
“Mr Murphy [F’s counsel] has suggested that I should take into consideration issues of F’s good character. I take the view that the introduction of this criminal concept is misconceived in family proceedings, although I entirely accept the submission that factors which point towards or against risk and propensity to perpetrate sexual abuse are legitimate and relevant. In that respect, whilst it is correct that F has not been convicted in a criminal court of any offences of sexual abuse against a minor, I am satisfied that the local authority has proved its case in respect of those same allegations in relation to B.”
“I am satisfied that there is no evidence to link these specific screenshots to J. In my view they have been deliberately generated by the mother with the purpose of undermining J’s credibility. As such the messages have almost no value in relation to my determination about J’s allegations, although I have considered further what they tell me about the mother’s response to the allegations.”
“Whilst there is a possibility that the mother has misunderstood how the app operates, it seems more likely that she has been driven to ‘find’ evidence to support her husband and to call into question the reliability of her daughter’s account.”
“Ultimately, when I consider the weight to attach to the factors which support and those which undermine J’s account, I am driven to the conclusion that I cannot be satisfied that J’s account is more likely than not. It seems to me that the weight of evidence is so evenly balanced that it is just as likely that her account is accurate as it is to be false. As such, the local authority has not proved its case in respect of the allegations that J was raped or inappropriately touched by [F].”
“104. In relation to the allegation about F shaving J’s legs and armpits, there is evidence from Y which lends considerable support to J’s account. Not only that, but the admissions made by F in interview about occasions when he would enter the bathroom satisfy me that [he] saw no issue with going into the bathroom when his step-daughter was showering. The subsequent inconsistencies between that account and his oral evidence, and the tightly aligned oral evidence of the mother suggest an attempt by F and the mother to present a different picture. I reject the oral evidence of the mother and F on the issue of the shaving and showering of J. Their suggestion that what F did was normal or a celebrated landmark in J’s development is not one I accept as reasonable or truthful. I prefer the accounts given by J and Y that F repeatedly insisted on coming into the bathroom when they were showering and shaved their armpits and legs when they were naked. Given my findings in respect of the abuse of B, I am satisfied that there was a sexual motive to [his] shaving J and Y. 105. Given my acceptance of the girls’ accounts of shaving and showering, I have reflected on whether the mother was aware that this was occurring and allowed it to happen. I am conscious that neither J nor Y mention their mother when raising these allegations, and neither of them specifically allege that their mother was aware of F’s actions. In light of this, I am satisfied that there is no evidence to support the suggestion that the mother was aware of this abuse occurring. Yet, where does that leave me with the account she presented to the court of a single incident of shaving? I can only conclude that the mother has deliberately lied to the court, either of her own volition, or at the request of her husband, in order to undermine J’s claim.”
“110. However, I am deeply troubled by the mother’s response at the point when J raised her allegations of sexual abuse. Given the history of an earlier prosecution, the fact that her own daughter had raised an allegation should have led, at the very least, to some curiosity about whether there may be cause for caution. The need for such curiosity and caution is heightened by the presence of P and Q in the home – two young and vulnerable little girls. Yet, the undisputed evidence is that the mother immediately rejected her daughter’s allegations as lies. She has continued to maintain that they are lies at this hearing. There is no evidence of the mother pausing to reflect on whether her husband may pose a risk to any of her children. Indeed, the mother has been proactive in undermining J’s account and seeking her husband’s return to the family home at the earliest opportunity. 111. At no stage has the mother been prepared to consider the possibility that J’s allegations may have been true. She told police officers on the day of [F’s] arrest that J was lying, and maintained that stance during several discussions with the allocated social worker. She has joined forces with the father in seeking to undermine J’s credibility throughout this hearing, and appears to have been the driving force in the introduction of the Tik Tok messages, the purpose of which was to cast doubt on the veracity of her daughter’s account ….”
“What struck me was that the mother appeared completely detached from the proceedings when that evidence was being heard. She sat motionless, staring into the distance during the evidence of both witnesses. This was in stark contrast to her attentive and animated response to the evidence concerning J’s allegations, and her own direct, articulate and forthright oral evidence to this court.”
“I have not been able to ascertain within their evidence a genuine concern for J’s welfare in respect of her mental health such is their focus on undermining her claims. Rather, the picture that emerges from the evidence is that J was wholly unsupported and undermined by her mother’s responses to her distress.”
“10. The Court is also invited to consider that : a. The complaint made by J was that she was shaved when she was in the shower. On this detail there was in fact no corroboration from Y, contrary to that which appears in paragraph 82 of the judgment. J’s evidence that she was shaved when naked was challenged by both of the parents and is subject to the finding on J’s credibility as set out in paragraph 99. b. Contrary to that set out in paragraph 105 of the judgment, Y did say that her mother was aware that F shaved her. 11. The above undermines the finding that the conduct of F was sexually motivated.”
“10. In relation to point 10, point 10 (a), I have found that J's account of shaving is corroborated by both Y and, to some extent, the answers given by F in his police interview, and I have found that the narrative explanation given by both parents as incredible and unworthy of belief. I prefer J's account for all of those reasons as set out in detail in my judgment. 11. In relation to point 10 (b), Mr Murphy is entirely correct to refer me to Y's account in interview … where she suggests that her mother did know about F shaving her. It is J who does not mention her mother when raising this allegation. However, this does not alter the conclusion I then reach about the mother having lied to the Court about a single incident of shaving. If Y is right that her mother was aware of F shaving her, then it is even more concerning that the mother would turn a blind eye to such behaviour and then tell the Court that there was only one single incident when it occurred, an account that I have rejected when weighing up the totality of the evidence. If Y is right that the mother knew, it leads to greater concern about the mother's insight and ability to protect her young daughters. 12. In relation to point 11, I do not accept that my finding that F's conduct was sexually motivated to be undermined.”
“I prefer the accounts given by J and Y that F repeatedly insisted on coming into the bathroom when they were showering and shaved their armpits and legs when they were naked.”
“Any Court conducting a Finding of Fact Hearing should be alert to the danger of such a serious finding becoming 'a bolt on' to the central issue of perpetration or of falling into the trap of assuming too easily that, if a person was living in the same household as the perpetrator, such a finding is almost inevitable. As Aikens LJ observed in Re J, ‘nearly all parents will be imperfect in some way or another’.”
“The task facing a judge is not to pass an examination, or to prepare a detailed legal or factual analysis of all the evidence and submissions he has heard. Essentially, the judicial task is twofold: to enable the parties to understand why they have won or lost; and to provide sufficient detail and analysis to enable an appellate court to decide whether or not the judgment is sustainable. The judge need not slavishly restate either the facts, the arguments or the law.”
“The primary function of a first instance judge is to find facts and identify the crucial legal points and to advance reasons for deciding them in a particular way. He should give his reasons in sufficient detail to show the parties and, if need be, the Court of Appeal the principles on which he has acted and the reasons that have led him to his decision. They need not be elaborate. There is no duty on a judge, in giving his reasons, to deal with every argument presented by counsel in support of his case. His function is to reach conclusions and give reasons to support his view, not to spell out every matter as if summing up to a jury. Nor need he deal at any length with matters that are not disputed. It is sufficient if what he says shows the basis on which he has acted.”
“In my experience, the practice in family cases of making oral and written requests to the judge for clarification of matters in his or her judgment can sometimes amount to no more than an illegitimate attempt to reargue the case, or to bamboozle the judge into errors or inconsistencies.”
“A request for clarification is perfectly acceptable if there is a lack of clarity, but a request that a judge reviews its decision is not. If you think that the Judge has got it wrong, then you appeal that decision with grounds of appeal.”
“(a) The focus and purpose of a fact-finding investigation in the context of a case concerning the future welfare of children in the Family Court are wholly different to those applicable to the prosecution by the State of an individual before a Criminal Court…. (b) The primary purpose of the family process is to determine what has gone on in the past, so that those findings may inform the ultimate welfare evaluation as to the child’s future with the court’s eyes open to such risks as the factual determination may have established …. (c) Criminal law concepts, such as the elements needed to establish guilt of a particular crime or a defence, have neither relevance nor function within a process of fact-finding in the Family Court …. (d) As a matter of principle, it is fundamentally wrong for the Family Court to be drawn into an analysis of factual evidence in proceedings relating to the welfare of children based upon criminal law principles and concepts ….”
“Of course, the same incident may give rise to proceedings in a number of different fora – the Criminal Courts, the Civil Courts, the Family Court, disciplinary tribunals. Those may each require findings of fact to be made, but restricted to the facts necessary for the determination of the issue before the particular tribunal, and then they will be subject to the particular substantial, procedural and evidential rules that apply to the determination of those particular issues in that jurisdiction, including, in Criminal Courts, technical defences. Those rules will be tailored to ensure that the issues are determined fairly and properly in the context of the particular tribunal.”
“I do not, therefore, see that, in fact, there has been any disadvantage to F by delay which would render the proceedings and the pursuit of the allegations raised by B to be in any way unfair.”
“I have the evidence available to me that I have been able to base my decision on without influence from opinions of others …. I base my opinions on the evidence available. The fact that I do not have perfect evidence does not mean that there is insufficient evidence in this case, and I am perfectly satisfied that there was a wealth of evidence, not just a transcript of an ABE interview, upon which I could be satisfied on balance that the Local Authority had proved their case in relation to the 2008 allegations.”