In the Matter of B (Children) [2016] EWFC 2

IMPORTANT NOTICE

This judgment was delivered in private. The judge has given leave for this version of the judgment to be published on condition that (irrespective of what is contained in the judgment) in any published version of the judgment the anonymity of the children and members of their family must be strictly preserved. All persons, including representatives of the media, must ensure that this condition is strictly complied with. Failure to do so will be a contempt of court.

Case No NE15C00470

[2016] EWFC 2

IN THE FAMILY COURT

Date Wednesday, 13 th January 2016

SITTING AT NEWCASTLE-UPON-TYNE

IN THE MATTER OF THE CHILDREN ACT 1989

AND IN THE MATTER OF: B (CHILDREN)

The Law Courts

The Quayside

Newcastle-upon-Tyne

NE1 3LA

Before

HER HONOUR JUDGE MOIR

Re: B (Children)

Transcribed from the Official Tape Recording by

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Suite 204, Kingfisher Business Centre, Burnley Road, Rawtenstall, Lancashire BB4 8ES

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Hearing Hearing dates: Not given

Counsel for the Local Authority: Miss Rachel Smith

Counsel for the Mother: Miss Christine Harmer

Counsel for the Father: Miss Elizabeth Callaghan

Counsel for the Children/Guardian: Miss Claire Middleton

JUDGMENT

HER HONOUR JUDGE MOIR:

[1]I am concerned with the welfare of two children: A, born on 26th October 2007, so aged 8 years 2 months; and B, born on 10th September 2010, so 5 years 4 months. They are the daughters of M and F. There had been no Social Services involvement with the family at any time prior to the allegations of sexual abuse which were made by B in March 2015. The proceedings started as private law proceedings after the parents had separated. The separation came about as a result of the allegations.

[2]Father, as I will refer to F at various stages, moved out of the family home on 11th March 2015 and thereafter had supervised contact. His application to the court for contact was made at a time when supervised contact was still ongoing. Father issued a private law application on 8th June 2015. The court appointed a rule 16.4 guardian and ordered a section 37 report to be prepared by the local authority. The report was filed on 27th July 2015. The report indicated that the local authority did not seek any public law orders. However the allegations which had been made were of a serious nature and the court required the local authority to consider the overall position of these two young girls. The local authority issued proceedings on 28th August 2015.

[3]The hearing before me presently is a finding of fact hearing to determine the issue of sexual abuse. Having considered the present circumstances of the children, the local authority still do not seek public law orders. However, they have drafted the schedule of findings, presented the case and, in their closing submissions, the local authority confirm that they seek a number of findings from the court, in particular that B suffered sexual abuse perpetrated by her father. The mother, as I will call M, also seeks the finding of sexual abuse while the guardian, on behalf of the children, draws the court’s attention to the law and to the evidence and leaves it to the court to determine what findings the court feels it can properly make.

[4]I heard evidence over four days and the parties have prepared written submissions. I heard evidence from Z, the nursery school teacher; Laura Robson and Miriam McCormick from the Children and Young Persons’ Service; from Win Little and Jackie Adamson, both social workers; and from DC Beecroft who was the police officer involved. I have also heard, of course, from M, F and FSM. It is the local authority who have brought the application and the local authority who have set out the findings which they seek and, therefore, it is for the local authority to prove those findings. It is not for F to prove his innocence and the court must be very careful in its approach.

[5]The standard of proof is the balance of probabilities as set out in Re: B (Children)

[2008] UKHL 35

and the court must guard against what has been described as “the insidious reversal of the burden of proof.” In Re: C and D (Photographs of Injuries)

[2011] 1 FLR 990

at paragraph 203, it is set out:

“There is in my judgment an obvious disadvantage to parents in an approach which requires that they provide an explanation for even the smallest bruise failing which there will be an automatic presumption that that bruise must have been an inflicted injury. Such an approach subtly changes the burden of proof and puts the onus on the parents to provide a credible explanation. As a matter of law, it is not for the parents to disprove the suggestion that the general bruising is non-accidental but for the local authority to prove that it is.”

The matters expressed in Re: C and D have equal application in a case where there are allegations of sexual abuse.

[6]The court must weigh up all the evidence and, as set out in Miss Smith’s submissions, consider the evidence “warts and all.” The absence of an ABE interview in this case or any other case is not fatal to the proceedings but is part of the overall picture which the court must consider and take into account. In Re: B & Ors (Children) (Allegation of Sexual Abuse: Child’s Evidence)

[2006] EWCA Civ 773

, it was held by

Lord Justice Hughes, as he then was, that:

“40. There was no question of this evidence being inadmissible for failure to comply with the ABE guidelines, and that has not been suggested in argument for either parent. In a family case evidence of this kind falls to be assessed, however unsatisfactory its origin. To hold otherwise would be to invest the guidelines with the status of the law of evidence and it would invite that question: which failures have the consequence of inadmissibility? Clearly, some failures to follow the guidelines will reduce but by no means eliminate the value of the evidence. Some may be purely technical and have no impact at all on value. Others may reduce the value almost to vanishing point. 41. The question for us in this case is whether the judge was compelled to the conclusion that he must disregard this evidence altogether. Mr Anelay submits that the failures here were so wholesale that that must be the consequence, on the basis that otherwise there is no point in having the guidelines. 42. With that submission I do not agree. The purpose of the guidelines is not disciplinary; it is to present the court and for that matter the parents with the most reliable evidence which can be obtained. In every case, the judge cannot avoid the task of weighing up the evidence, warts and all, and deciding whether or not it has any value or none. Everything will depend on the facts of the case. The exercise has perhaps something in common with the one which judges are used to carrying out when confronted with hearsay evidence, often in a family case third or fourth-hand hearsay. 43. On the other hand, I agree with Mr Anelay that the fact that one is in a family case sailing under the comforting colours of child protection is not a reason to afford to unsatisfactory evidence a weight greater than it can properly bear. That is in nobody's interests, least of all the child's. 44. It is clear to me that the judge was fully aware of the deficiencies of this evidence. They had been very extensively canvassed in front of him. He expressed himself in understated terms, but he reminded himself of the ABE guidelines and in particular those relating to an initial contact interview. As he reminded himself explicitly, the guidelines were not followed. He held that this was in effect an interview without the proper safeguards of video recording. He said that the failure to record the questions had made the task of evaluating the child's statement a difficult one.”

[7]As in many circumstances, it is a difficult task for the court to adjudicate upon the allegations which are brought in this case of sexual abuse and I am very conscious that it must be approached with great care. There is not an ABE interview and Miss Callaghan has argued that the interviews that were carried out with B subsequently to her initial disclosures were not in accordance with ABE guidelines and I do bear that in mind. The court must necessarily survey a wide canvass and consider each piece of evidence in the context of all the other evidence. In Re: T (Children)

[2004] EWCA Civ 558

, which Miss Callaghan brings to the attention of the court in her written submissions to the court, it is set out at paragraph 33 that:

“Evidence cannot be evaluated and assessed in separate compartments. A judge in these difficult cases has to 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.”

[8]I have considered all the evidence both written and oral which is before me. In a case of this nature, one must always bear in mind that if the court makes findings that an individual is telling lies or being untruthful, there are various reasons why lies may be told, not all of which may imply guilt or that the individual has lied about everything. Miss Callaghan has referred the court to R v Lucas

[1981] QB 720

which was held to apply in children’s cases by Mr Justice Charles in A Local Authority v K & Ors

[2005] EWHC 144

. It is essential to evaluate a witness’s performance in the light of the entirety of his or her evidence. Witnesses may also make quite genuine mistakes. All these matters must be carefully borne in mind. The court should identify a perpetrator if at all possible if satisfied there has been abuse. In this case, no other perpetrator is suggested if the court is satisfied that abuse occurred.

[9]Miss Callaghan refers to the case of Lancashire County Council v C, M & F (Children: Fact-finding)

[2014] EWFC 3

at paragraph 9. In this case, Mr

Justice Peter Jackson set out:

“Further possibilities include faulty recollection or confusion at times of stress or when the importance of accuracy is not fully appreciated, or there may be inaccuracy or mistake in the record-keeping or recollection of the person hearing and relaying the account. The possible effects of delay and repeated questioning upon memory should also be considered, as should the effect on one person of hearing accounts given by others. As memory fades, a desire to iron out wrinkles may not be unnatural – a process that might inelegantly be described as ‘story-creep’ may occur without any necessary inference of bad faith.”

It seems to me that the observations of Mr Justice Peter Jackson must be valid and carefully considered and factored into any consideration when allegations are made. I must evaluate the evidence of all the witnesses and I do not fail to take into account the traumatic and emotional nature of giving evidence before a court.

[10]I bear in mind the strictures of Lady Justice Macur in Re: M (Children)

[2013] EWCA Civ 1147

in which she sets out:

“11. The judge's assessment of the parents characters, past behaviour and present attitudes are entirely dependent upon finding primary fact, interpreting and drawing reasonable inference from the same. I agree with Miss Ball QC, they are unassailable on appeal. The judge was obliged to reach her conclusions on the whole of the evidence and was not bound by the opinions of others, however eminent in their field. The judge states the basis of her departure from their views, namely that of her ‘good opportunity not only to hear the witnesses' evidence but to observe their demeanour and credibility’. 12. Conscious that such comment is trite in first instance judgments it is pertinent to note in this one under review that the judge's description of the mother and father when giving evidence before her is analytical and detailed and obviously draws upon more than their performance in court. It is obviously a counsel of perfection but seems to me advisable that any judge appraising witnesses in the emotionally charged atmosphere of a contested family dispute should warn themselves to guard against an assessment solely by virtue of their behaviour in the witness box and to expressly indicate that they have done so.”

I do expressly indicate that I have done so. As I indicated, I am fully aware of the emotional and stressful experience of giving evidence in court.

[11]The first time B made any allegation of sexual abuse was to Z on 6th March 2015. Z is an early years practitioner working at School A. She described in oral evidence that B approached her when they were outside enjoying what is described by her as “a lovely day.” They sat together on the wooden sleepers. It seems B and Z had “a nice bond” and Z thought, as she expressed in evidence, and M confirmed that B liked her. Z described B as a very bright, articulate girl who liked the company of both children and adults. The nature of incident/concern document was written up by Z as soon as she could after the incident. It is set out at C93 of the bundle and I read the entirety of that document:

“I was chatting with B outside and we sat down and she started to rub my ear, or ear time as she called it. I asked if she did ear time with her mum, sister or dad. She told me she did but then started to say she did ear time on her dad’s bum. She then started to talk about doing ear time on her dad’s lady bits. I asked what she meant and she said she licked her dad’s lady bits like a sweetie. She implied her dad had no clothes on and began to move around as if to show me her dad moving his crotch. She repeated several times that she licked them like a sweetie. She wasn’t embarrassed or shy about talking about this. She was very open.”

[12]A statement dated May 2015, prepared by DC Beecroft but signed by Z, appears at H41 in the bundle. It is apparent that the school document records detail which is not contained in the police statement. I am satisfied that the document prepared immediately after the allegations were made is the more accurate account. Z told the court that what was contained in the school document was accurate. She said she had not asked leading questions. She knew not to do so. She had asked B if she did ear time with mum, dad and A, ear time being a description the nursery had given to B’s habit of rubbing her ear or somebody else’s ear between her fingers. The note of the telephone conversation between Z and DC Beecroft is recorded by DC Beecroft at H9 in the bundle. It is a note and not a full account of the discussion Z said she had with DC Beecroft. Further, she told me, it is hard to have a phone call of this nature while being present in a classroom with children. I accept her reservations.

[13]The initial disclosure of allegations must be considered very carefully. The accuracy and memory of the person to whom the allegations are made and the circumstances in which the allegations are made are extremely important aspects of the consideration of all the evidence. Of course, it cannot be analysed in a separate compartment but the record of the discussion between Z and B is free from “story-creep” or the possible effect of delay or repeated questions. I found Z to be a careful and credible witness. It is clear from her evidence that what B said was describing something different to ear time or nipping which “everyone that knows B accepted she did.” However, there is no evidence that Z sought inappropriately to explore it with B or prompted B in a leading manner. It is extremely important to consider whether there was a misunderstanding in Z’s interpretation of what she heard from B.

[14]M confirmed that at home she would regularly shout at the dog telling her not to lick her lady bits. Apparently, there had been shouting and swearing and tension that morning between the parents as B left to go to school. Submissions are made in respect of Z describing in her oral evidence something that had never been raised before, that is, B lowering the tone of her voice and apparently mimicking her father saying, “Lick my sweeties.” In oral evidence, Z described B gyrating her crotch area and saying, “Lick it like a sweetie,” as is recorded in the note. She accepted that the adopting of a lower tone of voice is not mentioned in the note. She told me in evidence that she recollected it happening but did not know if it was B’s way of impersonating her father’s tone of voice or not.

[15]Z told me B was not embarrassed or shy but very matter of fact. Z was clear that she had a good recollection of what was discussed and what happened on the day despite it being some months ago. It does seem that whatever B was recounting, it was not something which caused B upset when describing it to Z. Z confirmed in evidence that about half an hour later B asked, “Will my dog die now?(It was pointed out to me that it was 30 minutes after the interview on that day.) The court must be very careful not to speculate as to why B was asking this question. It seems that she was linking what she had said to Z in some way with her dog dying. It is not clear why she would raise or think this and it is incumbent upon this court not to speculate.

[16]Miss Callaghan, however, sets out in her submissions:

“Interestingly, within 30 minutes of this interview, B is upset and asking if her dog will die now. It is submitted that perhaps she was talking about her dog and she is worried about the impact of what she has said on the fate of her dog. There is no other explanation for B saying this. This raises a very real possibility that B thought she was talking about her dog and she was worried that she had got the dog into trouble.”

Of course, there is another explanation and it is inaccurate to say there is only one explanation. The other explanation could be that if she was sexually abused by her father she was required to keep it a secret otherwise her dog would die. However, this was not put to F and, as I have said, the court must be very careful not to speculate as to the reason but the court cannot ignore the fact that it was said and had some relevance for B, but there could be more than one explanation for what B said.

[17]Following the allegation made at school, there was no requirement for F to leave the home. The evidence given by both mother and father was that neither of them knew the detail of the allegations which had been made until the Monday morning. They were aware that B had said something of such concern that Children’s Services had been involved by the school but they had no idea of the exact content of what B had said. The social worker, Win Little, had undertaken a joint visit with the police on 6th March but it was Sheila Pearson and Jackie Adamson who visited the home on 9th March. It was then realised that no one had given any full explanation of the allegations that B had made.

[18]Win Little, as the duty social worker, made the joint visit with the police initially. B was asked if she could remember what she had told the nursery teacher. B made no disclosures and Win Little told me that after, I think, ten minutes they left. The team manager, Jimmy, was informed that there had been no disclosure and he rang back and said that there would be no assessment. DC Beecroft attended to see B with Win Little. His recollection was of a 45 minute to an hour discussion. Win Little’s statement supports a shorter discussion but from the account of what was actually said and recorded by both, it seems unlikely that there was a very lengthy conversation.

[19]The notes provided by DC Beecroft at H27 as to the account given by B are disjointed. DC Beecroft told me that they were basic notes. He said he did not ask direct or specific questions. In the note at H28 it is noted, when asked specifically about licking or lady bits, B ignored the question and played. She talked about marrying Charlie and Charlie letting her play teachers with him. She said, “My daddy died.” Miss Callaghan asks me to note B’s ability to fantasise. I am, of course, very conscious that she is a 4-year-old girl who talks about all sorts of things which are not necessarily accurate or clear. However, it seems to me that “fantasise” is an emotive word and perhaps not apt in these circumstances.

[20]Miss Callaghan asks me to prefer DC Beecroft’s evidence, which notes “when asked specifically,” and thus, it is submitted by Miss Callaghan, prompting B, to Win Little’s oral evidence that no specific questions were asked by her and that she certainly did not ask about that. “She certainly did not ask about that. I didn’t say that,” are her exact words taken from my note of her oral evidence.

[21]H28 is a note of DC Beecroft’s discussion by telephone with Z when she was in the classroom. Again, it is a note, not a verbatim account of what was said. DC Beecroft said F seemed quiet. He did not react in any kind of expressive way. “He listened to what I said. I told them that disclosures had been made by B which raised concern of something going on of a sexual nature and the police were trying to find out.” DC Beecroft said at the family home F was more reticent than he might have expected. I make it clear that I recognise that people react in different ways to shocking details or information and I place no weight upon such a view. Neither DC Beecroft or Win Little accepts that either of them asked a leading or prompting question.

[22]DC Beecroft said he took the notes when he was in the room. They were more prompts to keep track. He did not write them while talking to B. He says they were bits of what B was saying. DC Beecroft, despite the notes, said he would be alarmed if such things were asked directly. He told me he was not alarmed by Win Little’s approach although it was maybe different to the way the police may have approached it. DC Beecroft made it plain he was not a safeguarding expert. He was still relatively new to the department. He had only been in the department a matter of four months. Unfortunately, the standard of notetaking and the maintenance of the evidential records is poor. When there are allegations of sexual abuse and a child is making allegations, it is extremely important for what the child has said to be recorded without delay, recorded competently and accurately. While, of course, notes to enable the records to be written up are acceptable and desirable, they must be comprehensible, informative and should be timed and dated.

[23]Miss Smith on behalf of the local authority sets out that the criticism made by Miss Callaghan elevates the notetaking of DC Beecroft to a heightened level of precision that the local authority does not accept is deserved. It is not claimed the notes are a verbatim account or even a detailed recording of what B said. They are in the form of notes and the weight the court puts upon the notes must recognise that position.

[24]DC Beecroft and Win Little attended at the family home after leaving the school. Win Little described father arriving after them and looking very shocked, as she put it, as was to be expected. Win Little and DC Beecroft left reporting no safeguarding concerns which, in passing, I do find was rather inaccurate as allegations of sexual abuse had been made. Win Little was uncomfortable that no assessment was to be carried out and said she did have safeguarding concerns which she thought needed to be assessed. However, it was thought that the concerns were not of a nature and degree sufficient to warrant removing either dad or the children. The parents were left all weekend not really knowing what the disclosures were about. Thus, on 9th March, F and M were told that no further action would be taken.

[25]On 10th March, it was suggested that Children’s Services should go out again. Win Little said obviously the child had said something and it needed further exploration to see if B had said anything else. The plan was to do some direct work and Jackie Adamson and Win Little went out the following day on 11th March. Jackie Adamson and Win Little spent, they said, 15 to 20 minutes alone with B. It seems Jackie Adamson was asking the questions and they were both taking notes. At C105 within the bundle, Jackie Adamson’s handwritten notes appear:

“Saw nana on broomstick and fell off on her bottom. Love shoes, Peppa Pig, toys, pasta. M and D cook. [It is not clear but it looks like] Mummy colour in and plays games with mummy. Mummy plays tricks on daddy all the time. It’s funny. Daddy plays CBeebies, dances, plays with lady bits when mummy is at work in his bed. Suck lady bits. It’s a secret. It’s gross. Daddy said will shout. He laughs. Mummy doesn’t know it’s a secret. Worried. Why? Because it is a secret.”

[26]Win Little’s account is typed up at C104:

“B was asked about things that she likes and she said she saw nana on a broomstick and that she fell off and hurt her bottom. B loves shoes, Peppa Pig, toys. She likes to eat pasta and mummy and daddy cook. Mummy plays with her at home and helps her colour in. Mummy plays tricks on daddy all the time and B thought this was funny and she laughs. B was asked if daddy plays with her at home and she said he plays CBeebies and dances. She said that he plays with his lady bits when mummy is at work. This happens in his bed. B says that she sucks his lady bits. It’s a secret. It’s gross. B said mummy doesn’t know as it’s a secret. B said she is worried. When asked why, she said that it’s a secret. B was asked if she could tell her mum about her secret and she said yes.”

[27]Jackie Adamson told me that she was concerned about the behaviour B displayed. She said B opened her legs and put her hand round her crotch. I have made notes of Jackie Adamson’s oral evidence of the discussion that Jackie Adamson said took place and I read from the notes that I have taken of her oral evidence. She said:

“Opened her legs and put hand round crotch. Said it happened in mummy’s bed. I asked her what clothes wore and she said, ‘Daddy didn’t have clothes on.’ Said, ‘Mummy at work.’ I asked her how it made her feel and she said it made her feel really worried. Said made her feel gross. Asked why it made her feel worried, she looked at me as if I was stupid and said because it was a secret. Asked what would happen if she didn’t. Said he would shout. I asked her if she could tell mummy her secrets. She began to get agitated. The word ‘gross’ was used with ‘bits,’ ‘lollipop’ and she scrunched up her face. She put her shoulder up as if eating something she didn’t like the taste of.”

[28]Jackie Adamson told me that one of the reasons she referred B to Dr Rollison was because B told her that daddy tickles her lady bits. Both Win Little and Jackie Adamson are experienced social workers. They knew not to ask leading questions and were clear in their evidence that they did not do so. I noted that I found Jackie Adamson a clear and confident witness. Experience and confidence does not necessarily make the evidence accurate and there were differences in that Win Little did not recall B saying that daddy had touched her lady bits. Both record, however, clearly the grabbing of the crotch, the facial expressions and the description “gross.” According to Jackie Adamson, if there had been no allegations of touching, the referral to Dr Rollison would not have been indicated.

[29]Miss Callaghan is scathing in her criticism of what occurred on 11th March. She says it was not planned or recorded properly with no one taking responsibility. Miss Callaghan submits that there are numerous versions of what was said to Jackie Adamson and Win Little, namely, and she lists them as Ms Adamson’s oral evidence, the handwritten note at C105, Miss Little’s typed note at C104, Miss Adamson’s police statement at H39 and Miss Adamson’s Children Act statement at C116. Miss Callaghan identifies the differences and asks the court to consider those differences and consider:(i) that the contemporaneous statement referred to it happening in his bed;

(ii) in relation to “plays with lady bits,” at C104 Win Little says “he plays with his lady bits” and at C105 Jackie Adamson says “she plays with lady bits”; and

(iii) at C118 it is put in that it is in mummy’s bed. Otherwise, the recollection and statements are in fact very similar.

[30]Do these differences and the less than optimum recording inevitably mean that the court cannot rely upon the evidence of Miss Adamson and Miss Little? The court does not ignore that there are some inconsistencies but in fact overall the accounts are very similar and B speaks of things she could not know about at her age unless either it had happened to her or she had seen it or someone had told her about it. In my view, and I find that what she said goes beyond misunderstanding ordinary and innocent behaviour. There was not an ABE interview. That was a police decision taken because it was not felt, after the first police visit when nothing was said of note by B, to be appropriate.

[31]Jackie Adamson accepted that there was no planning of the questions. That, she says, was never the intention that there should be planning of the questions. It was to let B and A tell her about their lives and to let the conversation flow. As I have already mentioned, it was not ABE guidelines compliant. She said that the purpose was to build up a relationship. Jackie Adamson’s police statement includes the phrase, “I asked her if she could remember what she said to her teacher.” Miss Adamson, in evidence, said she did not say that to DC Beecroft and she could not remember asking the question. She said from her recollection B freely told her. Jackie Adamson told me that she did not feel, in fact, if it had been said, that it was a direct or leading question in any event. It is just asking what she said to her teacher. Maybe it is a question which prompts discussion but I am satisfied it does not prompt or lead to a particular answer.

[32]Miss Adamson was clear in her oral evidence that B said “like a lollipop,” that she said she played with daddy’s lady bits, definitely said licks lady bits and sucks them, tickles them, his or hers. The statement was not prepared until many months later. The notes are, I find more reliable. The statements made at the time do miss certain things out. Miss Adamson says she remembers the details she has now told the court about. Miss Adamson said that she did think the children were using nappies because of what she saw in the bedroom but she said it had not influenced her thinking in relation to the allegations that B had made.

[33]Miss Adamson describes father as quite passive, then wailing, then passive as if sitting back watching what M would do. She said she felt it was not a genuine reaction. Again, I make it very clear there is not a usual or correct or predictable way to deal with these particular situations. Miss Adamson may have felt it was really odd but, in itself, his reaction cannot be determinative as to whether B has been sexually abused by him. Both parents were asked several times why B had come out with something so inappropriate. I remind myself that it is not for father to prove his innocence but, of course, it is an obvious enquiry to try to find an explanation for what B has said. Jackie Adamson said the parents were asked several times why B came out with something so inappropriate. It is not surprising or unusual that parents cast around for anything that they think can explain what has happened or been said.

[34]Both parents were interviewed by the police. Miss Smith refers to two very odd features in terms of father’s immediate response to the allegations. Apparently, he deleted a “naughty clip,” i.e. pornography from his phone, within minutes of leaving the nursery and having been told that there were concerns. He did this after he collected B but before he collected A. It is a reaction which could be interpreted as suspicious but in my view it would be a mistake to place too much reliance upon F’s actions at that time. There may or may not have been a video clip. The forensic examination of the phone was neutral.

[35]More concerning is the fact that neither mother or father, during the initial assessment sessions, mentioned that B had access to inappropriate material or sexual acts. It must have been in father’s mind, if he indeed did delete the naughty clip from his phone, but no description or explanation that B could have seen the naughty clip was raised until much later. The father’s own witness, FSM, his stepmother, was clear that she gave him advice at an early stage to tell the professionals about the pornography clip when he told her about it. I accept without hesitation that a 4-year-old is able to negotiate technology of which, of course, the father was aware and yet he still did not make it known for six weeks that he was saying she could have seen the naughty clip despite being advised to do so.

[36]The parents gave evidence that they looked through videos over the weekend to see if there was anything within the videos to explain B’s allegations and yet again F, having obviously thought about whether B may have seen something, does not mention the pornography clip on his phone until six weeks later. He does not say that B saw the clip but puts it forward as a possible explanation. He gave evidence about B walking in whilst he was urinating in the toilet and, upon seeing his private parts, used the word “gross.” I find neither the possibility of seeing the pornography clip nor the observation of her father is a sufficient or satisfactory explanation. Father’s description of the pornography clip says it was a couple indulging in oral sex. No other detail was given. The video clip for whatever reason is unavailable. There is no evidence other than what F says that it existed. It is insufficient explanation in all the circumstances of this matter for B’s words and actions when she was making the allegations.

[37]I am satisfied she was talking about something which had happened to her, not something she observed. Both parents were adamant that she had never seen any sexual activity between them. Both parents, when questioned, referred to the dog, Lady Alice, and mother telling the dog off for licking her lady bits. It was a phrase used when the children were around. It is how this family described genitalia. It is how B described genitalia. Also, the use of the word “gross” is not unusual in the family and mother told me that she used “sweetie” as a term of endearment.

[38]I accept these facts. However, B’s allegations are not explained by consideration of these facts. She is specific in describing what she says happened to herself. B undoubtedly, as with any little girl her age, tells stories. “B,” it is said by FSM, “says things out of the blue and you think, ‘Where did that come from?’” but B’s mother, M, who knows B probably better than anyone, once over the initial shock and a natural desire to find an innocent explanation, believes her daughter and she does not subscribe to the view that B in this instance is mixing fact with fiction. I found the mother to be a careful and credible witness. Her views, of course, are not determinative.

[39]The involvement of the Children and Young Persons’ Service came about after a referral was made by the local authority. I heard from Laura Robson and Miriam McCormick. In relation to the findings of fact, their evidence takes me little further. The girls were bewildered and distressed. Whether the allegations are true or not, their worlds have been turned upside down and their mother, who was caring for them, was clearly anxious and stressed, as she told me in evidence. The only possible relevant references were B telling Miriam McCormick that, “He should not have been naughty, though,” and “I never did anything naughty, though,” and B’s claim that she said, “I didn’t think mummy would want me to do this,” and her dad had said, “Go on. It’s okay.”

[40]Both Laura Robson and Miriam McCormick were clear that their purpose was not to investigate or do any disclosure work and that B had never told them that anything inappropriate had occurred. Miriam McCormick confirmed that B was very bright and had said on a number of occasions that she missed her dad. It is all part and parcel of the evidence which I must consider and apply appropriate weight to.

[41]M conceded that over the weekend after the allegations were made but before they knew the detail, the parents talked together and that when questioned later by the police she effectively set out the father’s case. She said he kept telling her it was not true and that she wanted to believe him. She said she may have come up with the explanation such as the dog licking her lady bits and calling love handles bum. She accepted that F had the opportunity to abuse B. I was told that he frequently looked after the girls. B was off nursery the Monday, Tuesday and Wednesday before the allegations were made because she was ill and cared for by the father. She returned to nursery on the Thursday and the allegations were made on the Friday. It seems that, in being fully involved in caring for his daughter, F would have had the opportunity if he sought to take it.

[42]At the outset, immediately following the allegations and thereafter, M told me, “I had been fighting to protect what I knew.” It seems to me that this is a perfectly normal and understandable reaction to the traumatic information which had been presented. Mother told me in evidence that just before contact for the first time, she and B were cuddled up on the sofa. She said she asked B, “Do you remember what you told the ladies about licking daddy’s lady bits? I said, ‘Did you?’ She went ‘No’ and I left it.” Mother was adamant that she had not watched porn with F, which it was recorded he told Sheila Pearson. Sheila Pearson was unable to give evidence but father said he had not said that he did watch porn with the mother.

[43]In evidence, some detail was provided about father’s behaviour after he was required to leave the house on 11th March. It is suggested by the mother that he had been controlling during the relationship and after he left his focus was upon himself and how the events affected him rather than anyone else, particularly B. Consideration of what occurred after he left does not really assist me in reaching my findings and both parents agree that although sex between them was infrequent, it was not an issue and they had a perfectly normal and appropriate relationship. F has always denied behaving in any way inappropriately with B. It is clear from the observations of others that the relationship and bond between F and his daughters is good. It is clear that they have missed him. It is also clear that he is very distressed about his lack of contact with his daughters.

[44]He said he brought the proceedings for contact because Sheila Pearson had made it very clear to him that he would only ever have supervised contact and F was not prepared to accept that. He told me that he was not prepared to accept that or his daughters growing up without knowing why his contact had to be supervised. He told me that when Jackie Adamson recorded and told me in evidence that:

“I asked F how he felt about B and after a few minutes he said he felt sorry for her and when I asked why he said that, he said because she had split the family up and had to live with that for the rest of her life’.”

F said his words had been taken out of context in that it was part of a conversation and he did not accept that it was said in the way that Jackie Adamson portrayed it to me. He told me that:

“I said my feelings will never change. I said at some point she will come to realise, because of what was said to nursery, that the family had split up. I felt very sorry for her that she would grow up with that.”

[45]F, and indeed M too, were very critical of Social Services and the police. I find that they were justified in feeling that they had been unfairly treated in some ways. The criticism I make is not of the social workers, as I would call it, on the ground but the decision made, it seems to me, too hastily that no assessment would be carried out, F would not be asked to leave and that the parents were informed that no further action would be taken to then be confronted next day with being told that in fact further investigation was necessary. The fact that I think that some criticism is justified does not detract from the findings that I must make.

[46]It remains of concern to me, as it was to Win Little, that following the serious allegations that B had made against her father to Z, a decision was taken that there would be no assessment because, it seems, B had not said anything to the police officer and Win Little when she was seen by them. However, F goes further. He told me in evidence that he feels the allegations were elicited by the social worker. He said:

“I don’t have any faith they work correctly. I believe she [B] was asked in a specific way to get responses.”

Indeed, this is the case that has been put on his behalf; namely that the allegations were made as a result of prompting.

[47]I do not find this criticism to be valid. The disclosures made to Z were as a result of general conversation between B and a teacher to whom she is close and talks regularly. The disclosures made to Win Little and Jackie Adamson were not, I find, as a result of leading questions. I recognise that the notetaking is poor but I found them perfectly adequate witnesses who had sufficient recollection of what had been said. The inconsistencies in what the witnesses said they remembered and the recordings do not result in a court disregarding that evidence. Win Little and Jackie Adamson are both experienced social workers. I am satisfied they were experienced in child protection work and knew the importance of not leading or prompting a child. DC Beecroft at that time was less experienced.

[48]It is not surprising that B did not disclose any allegations to Win Little or DC Beecroft. She had not met them before. The visit on 10th May was made as set out at A16 and I read from the note provided to the court on behalf of the Chief Constable of Northumbria Police in response to a query why an ABE interview did not take place:

“On 10th May 2015, a further visit was made to B by DCs Beecroft and Brockett in the hope disclosure would be made. However, there was still no disclosure. On this occasion B was asked questions directly, using words and phrases she had used during her disclosures, whether there was anything she wanted to tell the officers but she said no. B’s sister, A, was also spoken to by the police and Social Services. When spoken to, she indicated she told her secrets to her teddy but was unwilling to say more. On the basis that no disclosure was made of any kind to the police and B was unwilling to speak to the police, there was insufficient upon which to undertake an ABE interview and a report has been submitted for approval to take no further action. This remains outstanding at this stage.”

The visit to which I have just referred took place with an unfamiliar female officer and DC Beecroft and while sitting on M’s knee. It, of course, was some months after the allegations were raised by B. No disclosures were made upon that occasion.

[49]F considers that his children have been emotionally abused and emotionally harmed by being told daddy is naughty and his contact having ceased. I earlier expressed my concern in relation to the decision to stop contact before the allegations were tested out or a proper assessment of contact was undertaken. B may have exhibited unsettled behaviour in June and July. No assessment was carried out to look at other possible reasons why B was unsettled. Contact with her father was a possible cause but there were other possible reasons. In itself, it is not probative or supportive of a finding of sexual abuse. A made no disclosures in relation to herself or in respect of anything told to her by B.

[50]I find B is too young to know about the things she discussed unless she had seen or experienced them. The details of the allegation, I find, are not consistent with just seeing something but are more likely to be consistent with it having happened to her, as she said it did. As mother put it in evidence, they are graphic and a reference to mummy being at work makes M believe it is not just a misunderstanding. I find, taken with the graphic detail as referred to by mother and the circumstances and recipient of the initial disclosure, namely Z with whom she had a good relationship, and the matters to which I have referred as relevant within the course of this judgment and upon a careful analysis of all the evidence, it leads me to conclude that B has been abused by her father. It is not a conclusion I come to without careful consideration and I am satisfied that, taken as a whole, the evidence supports my findings. I make the findings set out at paragraph 1 of the findings sought. I do not make any other further findings. [A brief discussion on the judgment follows]

[51]It needs to go into the judgment that I am not satisfied that using the terms and phrases “secrets” and worries” and “not telling mummy secrets” are leading or prompted a particular response, bearing in mind that B had already talked about secrets in her earlier disclosure. [Judgment ends]