B, C and D (Children) (Sexual Abuse and Selective Mute Complainant), Re [2025] EWFC 386

[2025] EWFC 386Date 14/11/2025
IN THE FAMILY COURT
Before
THE HONOURABLE MR JUSTICE MCKENDRICK
Between
A LOCAL AUTHORITYApplicantMOTHERRespondentsFATHERRespondent
Re B, C and D (Children) (Sexual Abuse and Selective Mute Complainant)
Ms Kirstie Danton (instructed by Local Authority Solicitor) for Applicant Local AuthorityMs Tracy Lakin for First RespondentMr James Tillyard KC and Mr Christopher Rank for Second RespondentMr Matthew Maynard for Third to Fifth RespondentsHearing Hearing dates: 3 – 6 and 14 November 2025
Approved Judgment.............................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 and legal bloggers, must ensure that this condition is strictly complied with. Failure to do so may be a contempt of court.

McKendrick J :

[1]The sole issue with which this judgment is concerned is whether or not the second respondent father (hereafter “the Father”) sexually abused his daughter. She is referred to in this judgment as A. She was seventeen when she first made allegations against the Father. She is now eighteen. The applicant Local Authority submit the Father sexually abused A in his home, on a date before 20 August 2024. The Father denies this. Whether these allegations are true or not, is a material factor for the welfare of the three subject children, who are all minors. On 19 September 2024, Lieven J concluded that, notwithstanding the largely agreed welfare outcome in these public law proceedings, a fact find of the issue of sexual abuse was proportionate and necessary.[2]The specific allegations with which the court is concerned are set out in the applicant’s threshold pleading. The Father’s response to each averment is “Not Accepted”. The three allegations are:• On various dates prior to 20 August 2024 the father sexually touched A, aged younger than 17 years, on her vagina using his hand and/or fingers.• On various dates prior to 20 August 2024 the father inserted his penis into A’s vagina.• On various dates prior to 20 August 2024 the father inserted his penis into A’s mouth.[3]After having read and heard the evidence and submissions, I have concluded that the Father sexually abused A by having sexual relations with her on a date before 20 August 2024. I find all three allegations are proven. That is to say I find as a fact the three pleaded averments set out above happened. This will be recorded in the order. I endeavour to set out my reasons below.

Background

[4]The Father and the second respondent (hereinafter referred to as the Mother) were in a relationship for some time. They have five children: (A is the second eldest, the other three are the subject children). The Applicant’s social work team became involved in April 2019 because of serious concerns about the parenting skills of the Mother and the Father. The parents separated in August 2022. The Applicant closed its involvement with the family but this was re-opened in February 2024 when a learning disability nurse raised concerns that A was “severely underweight, seemingly depressed and regressing in many areas.” This led to A and her eldest sister being made the subject of Child Protection Plans. The two younger sisters were made the subject of Child in Need plans. As will be set out below A made allegations of sexual abuse by the Father in August 2024. All four children were removed from the care of the Father and placed with the Mother, with a safety plan in place which provided for no contact with the Father, to which the Mother agreed. Care proceedings were issued on 25 September 2025. On 27 September 2024, HHJ Bailey made an interim care order for the three younger children. A was made a ward of court (at the date of issue of proceedings she was aged 17 years 7 months). A[5]It is important to describe A. She was born in February 2007. She has a diagnosis of a rare genetic disorder. She is said to have features of autism. She was the subject of an Education, Health and Care Plan (EHCP). The version before the court is dated March 2023. It noted A attended a special school and was assessed to have global learning difficulties. She has difficulties with retention and recall of information. Her cognitive skills were assessed at chronological age of 10 years and 4 months and it was found her abilities were largely at or below the 1st percentile but her spatial skills were at the 5th percentile. Her reading and writing skills were delayed. Her mother reported A had no difficulties with physical skills. A was described as “generally independent with her self-help and care skills.” Reference was made to her wetting the bed. She was referred to the speech and language service but never attended. Her mother reported that she “rarely uses the telephone and speaks very little”. Her school reported A was “extremely vulnerable.” She struggled to access the Year 5 curriculum and was working at the Year 1 level. Testing demonstrated that at chronological age of 9 years and 9 months her British Picture Vocabulary Scale was at 6 years and 2 months and her reading was assessed at 4 years and 8 months, with a comprehension of 5 years and 1 month. She was not described as selective mute in her EHC plan but it stated she was “reluctant to talk”.[6]A witness statement provided by a safeguarding assistant at A’s school noted her very poor attendance of only 37.1 %. It noted that when A joined the school in October 2017 she “was able to communicate verbally, she does have communication issues”. However, she noted that there had been a gradual regression in A’s use of language since the first involvement of “social care” in 2020 and A is now “elective mute”. Her statement is dated October 2024.[7]Following the issue of these proceedings, A became the subject of proceedings before the Court of Protection. In January 2025 she was assessed within those proceedings by a psychologist who concluded she lacked capacity to provide instructions to her solicitors, engage in sexual relations, makes decisions about her residence care, contact with others, use of social media and the internet. I do not know to what extent these opinions have been accepted by the Official Solicitor as A’s litigation friend or the court.[8]A was seen by an intermediary in preparation for her Achieving Best Evidence (ABE) interview, planned to take place in January 2025. The intermediary produced a report dated 9 November 2024. She notes A’s selective mutism and that selective mutism “is thought to be a consequence of high anxiety. People with selective mutism can communicate. However, their high levels of anxiety prevent them from speaking in specific situations, such as when meeting new people and in busy environments. A is unlikely to be able to answer questions verbally and may find the interview situation extremely anxiety-provoking.” She goes on to note A's learning disability. She noted it was not clear if A understood all her questions. It was noted that A “found it extremely difficult to answer open questions.” She needed a lot of processing time to answer questions. It was noted A showed significant difficulty understanding language, but it was also noted this may not be a true reflection of her ability. A spoke a maximum of two words together.[9]The intermediary noted that A understood she may need to come back and speak to the police. She then notes: A “was then asked if she wanted to talk to the police about what had happened to her. At this point [A] nodded and said yes with emphasis” (my emphasis in bold).[10]A was the subject of a ‘capacity’ assessment of a clinical psychologist in October 2025. The psychologist concluded that A “lacks the capacity to understand the meaning of the oath (in simple terms) and her responsibility to tell the truth and potential consequences of not doing so”. The psychologist interviewed A in her residential placement and spoke with the staff. She noted the staff told her that A needed prompts for personal care such as “checking the shower temperature, then leaving [A] to shower in private”. It was noted A would occasionally speak and her language includes statements such as “Happy, I want to go to the cinema”; “I want to go to B&Q” and “I want to go to the toilet”.

The Applicable Legal Principles

[11]The parties are agreed that the erudite judgment of MacDonald J in Re P (Sexual Abuse: Finding of Fact) [2019] EWFC 27 encapsulates the relevant principles to be applied to this fact finding exercise. It is not necessary to set out the principles as they are settled and now well-known, but I have read the entire published judgment and apply in particular the following paragraphs 239-272 which sets out the legal framework for fact finding before the family courts and which rightly pays particular regard to the context of findings of sexual abuse involving allegations made by children. I have also paid close regard to paragraphs 570 to 593 which set out the caution to be applied in respect of ABE interviews and overall, the caution when dealing with the evidence of a child. A is not a child. She was a child when she made her allegations against the Father. She is now an adult. However, both her cognitive profile and her wider emotional challenges require me to approach what she has communicated with caution. There is some helpful read across from the principles set out in respect of children to vulnerable adults.[12]All advocates agreed this is the pertinent, core legal framework within which the court must assess the evidence filed.[13]Mr Maynard also refers me to paragraph 33 of the judgment of Peter Jackson LJ in Re S (A Child: Findings of Fact) [2023] EWCA Civ 346 where he held (with the agreement of Lewison and King LJJ): First, the evolution of K's statements needed to be charted. The judgment did not do that (so that time during the appeal hearing was spent in constructing a chronology) but instead summarised each witness's evidence in sequence. It then considered the ABE interview process and placed it against a broad account of the other evidence. It would in my view have assisted the judge if he had identified and focused on the chapters of time covered by the evidence. These might conveniently have been arranged under these headings: the background, the first accounts, the ABE process, K's subsequent statements. This approach would have allowed the judge to focus on the situation K found herself in at various stages and to address F2's case effectively.[14]I also remind myself, pertinently for this case, of what was said at paragraph 36 The ABE process is there for a reason. It is designed as a safeguard against unsound findings based on accounts that are unreliable or misunderstood. Of course, the fact that the guidance has not been followed does not mean that findings of abuse cannot be made where the evidence as a whole justifies it. But the worse the breaches of guidance the more careful the court must be.[15]I have also considered the judgment of Cobb LJ (with the agreement of Bean and Dingemans LJJ (as the later then was)) in Re H (Children) (Findings of Fact) [2025] EWCA Civ 993at paragraphs 65 and 66. Whilst the facts are different, I have firmly in mind the warning that there is “no smoke without fire” (see Bailey [1924] 2 KB 300) and the need to consider the allegations made over time. In A’s case this requires me to evaluate what she communicated between August 2024 to January 2025. I will turn to that shortly and consider it as best I can in this context:
“The Judge could then have concentrated on the first point in time at which H had ever given an account of alleged sexual abuse, the precise circumstances in which the account or accounts arose, whether and if so how they fitted into a context of lies, and how those were treated by those to whom they were made….”
[16]I also pay close attention to the Guidance entitled Achieving Best Evidence Guidance 2022 (hereinafter referred to as the ABE Guidance). This was updated in 2023. I have read this document for the purposes of the hearing and delivery of this judgment. I set out the parts of the ABE Guidance the Father’s legal team rely on, which are as follows: 3.29 In this phase of the interview the interviewer should initiate an uninterrupted free narrative account of the incident/event(s) from the witness by means of an open ended invitation. Interviewers may find it helpful to have planned a means of prompting a free-narrative account together with some supplementary options in the event that the primary method of prompting the account is not successful. 3.34 Some vulnerable witnesses may be particularly compliant in that they will try to be helpful by going along with much of what they believe the interviewer ‘wants to hear’ and/or is suggesting to them. This is particularly so for witnesses who believe the interviewer to be an authority figure. Some witnesses may also be frightened of authority figures. The interviewer should, therefore, try not to appear too authoritative, but should be confident and competent as a means of reassuring the witness that they can be relied on. 3.35 Many vulnerable people are very concerned to present themselves in the best possible light, and many might try to appear as ‘normal’ as possible by, for example, pretending to understand when they do not. This is something we all do. Even though they may not understand a question, vulnerable witnesses may prefer to answer it than to say that they don’t understand. Saying that one doesn’t understand a question can be taken to be implying that the interviewer or witness is at fault. 3.37 Research has consistently found that many vulnerable witnesses acquiesce to yes/no questions….the tendency to respond positively to every question occurs particularly frequently with some people with learning difficulties…… 3.51 Questioning should whenever possible commence with open ended questions … forced choice and leading questions should only be used as a last resort. …. 3.52 An open-ended question is the best for gaining good quality information .. it enables the witness to control the flow of information in the interview .. .. it minimises the risk that the interviewer will impose their view of whatever happened on the witness . 3.62 Forced choice questions should be avoided if at all possible and only used as a last resort … or where the witness is only capable of only responding reliably in a yes/no format e.g. as a result of a learning disability. 3.63 Forced choice question can also be termed selection question: it gives a witness only a small number of alternatives from which they must choose and which may, in fact not include the correct option … The result is that the witness may guess the answer by selecting one of the options given … 3.66 Multiple questions should be avoided. A multiple question is one that asks about several things at once. For example:
“did he come into the park, go on the swings with you, and give you some vodka”
. The main problem with this type of question is that people do not know which part of it to answer. Many witnesses find it hard to remember all the sub-questions asked while trying to retrieve the information required to answer each sub-question and could simply address their response to the last part of the question. In these circumstances, misunderstandings can occur as the interviewer may wrongly assume that the witness is responding to sub- questions one or two, or even all three sub-questions, when they are only responding to sub-question three. Such questions should be broken down into a series of short questions that cover one topic only. 3.69 ….. leading questions can serve not merely to influence the answer given but may also significantly distort the witnesses memory in the direction implied by the leading question…”

The Evidence

[17]I set out the evidence of the witnesses, but in doing so, I am also forming a timeline of A’s allegations. There were four clear episodes of allegations made. What A communicated to the Advocate at home on 19 August 2024. What A communicated to her social worker and the Advocate at social services offices on 21 August 2024. What A told a detective constable and her social worker on 21 August 2024 at social services offices. What A told the police officer and her intermediary at a police station on 8 January 2025.

A’s Advocate

[18]The Advocate provided a witness statement in these proceedings and a witness statement to the police in the course of their criminal investigation. The Advocate received a referral in June 2025 by a social worker. The referral stated that A had been selective mute for twelve to eighteen months and the role of an advocate was considered to assist to express her wishes and feelings and also to understand her non-verbal communication. The written referral document was filed with the court during the trial.[19]On Monday 19 August 2024, he met with A at her mother’s home, as arranged by the Mother. A was present with her four siblings, the Mother and the Father. The Advocate asked to see her alone. The Mother suggested someone familiar remain, like the Father. Therefore, the Father initially remained. Communication cards were used. A indicated she was sad. When asked why, she did not respond. She was given a note pad and pen and then froze. The Advocate asked her if she wanted him to return another day. A indicated “no” pointing to a card that said “No”. The Advocate asked if A would like to speak to him alone and she responded by pointing to the Yes card.[20]A indicated she was sad. When asked if her mother and sister knew why, she indicated “no”. When asked if her father knew why, she indicated “Yes”. She indicated she felt safe with mum and sister but did not feel safe with her dad and wanted to tell him (the Advocate) why. When asked if she wanted to speak another time or in another room, A indicated she wished to speak from her bedroom.[21]A answered questions that the Father shouts, gets angry and hurts her. A indicated that the Father did not hit her, but “that dad does other things”. She communicated this, says the Advocate, by “nodding and pointing to the Yes card”. The Advocate asked A if she knew what “abuse” was and she indicated “no”. He then states in his witness statement:
“I asked her if dad touched her and she indicated yes, I asked where and pointed to my chest and privates and she pointed yes to both questions on the communication cards.”
Realising that a specialist would be required, the Advocate says he ended the questions there. The Advocate did however continue to ask questions. These are set out in his notes of the interview. A went on to say she wanted to live with the Father and not the Mother. The Advocate states in his evidence that A communicated that “dad had told her not to tell anyone and using the cards said that this was why she had stopped speaking.”[22]I have seen a typed version of the notes. The Advocate describes his questions and A’s communication in response, where by gesture or pointing to cards. I have read the notes carefully. The Advocate asks a serious of closed questions mostly with a yes or no choice for A. She communicates by nodding her head for ‘yes’ or shaking her head for ‘no’. She is asked: “Does Dad hit you?” She shook her head. “Does dad do anything else to you?” “[A] nodded yes and pointed to the yes card.” Do you know what abuse is?” “[A] shook her head to indicate no and pointed to the no card.” “Does dad touch you?” “[A] nodded and indicated yes.” The Advocate then records in his notes: “Where does dad touch you? Chest or privates?” (I pointed to my chest and to my down below area) [A] nodded her head in response to both questions and pointed at the yes card for chest and private areas.”[23]The Advocate then records that as he was not a specialist “we left the questioning there.” But in fact, he continued to question A about whether she wanted help, whether she wanted to see him again, whether she was happy for the SW to be informed. A indicated yes to these questions. When then asked if she wanted her mother to know she indicated no. She then indicated she wanted to live with her dad not her mum. It appears that A’s brother then emerged from a nearby upstairs bedroom. The Advocate then records:
“Is that boy your brother? [A] nodded yes. Does your brother know what has happened? [A] shook her head to say no. Does your brother hurt you? [A] shook her head indicating no.”
The Advocate then elicits that someone has told her “not to tell anyone” and she nods yes when asked if that person is her father. When asked if “this” is why you have stopped talking, A indicated yes and pointed to the card.[24]The Advocate then sets out his notes of the further meeting at social services offices in the afternoon of 21 August 2024, when he is present with A and her Social worker (hereinafter referred to as “SW”). His note appears to be a summary of that meeting. He states that A “indicated” the following points: Dad touches her face. Using the doll, [A] knew all the body parts when asked to point to them when asked. [A] said that dad touches her private areas, puts his private on her face and genitals. [A] said that this had happened lots of times. Dad puts private parts on her. Circling answers to questions [A] said that dad uses his penis and put it into her vagina and on her vagina. [A] also said that dad puts his penis into her mouth.[A] also said that dad put his hands inside her vagina. [A] said that this happens in her bed, on the sofa in the bathroom and on the floor. [A] said that dad does this when she’s sitting down, standing up and lying down. [A] said that when does this puts his penis inside her vagina and in her mouth she feels happy and safe. [A] said that it hurts sometimes.”[25]The Advocate then notes a police officer was coming to speak with A and her SW and he left. I have noted his summary above, but it is inaccurate in as much as A did not “say” most of what is recorded above. She communicated her evidence through gesture and pointing to what was written for her. It is important to be clear about how A communicates.[26]The Advocate was cross-examined by Mr Tillyard. He accepted he had no particular skills in dealing with learning disabled children or adults or allegations of sexual abuse. He had never had an elective mute client in the past. He was rather vague in respect of how much he knew about A’s learning difficulties before their meeting. He accepted he asked a leading question, and he accepted it was better to ask open questions. He denied he was asking questions to confirm his belief that A had been sexually abused by the Father. When asked about how he had asked A about the touching, he had no real answer to why he had pointed to two areas of his body and did not provide an option which implied no abuse. It was repeatedly put to him that he had been informed of local authority suspicions of sexual abuse by the father and that was why he was instructed. That he came to the meeting with this in mind. The Advocate denied both of these propositions. He said he did not know whether to believe A’s allegations or not. He explained his contact with the SW after 19 August 2024. He explained he attended the 21 August 2024 strategy meeting on MS Teams but could not recall the detail of the meeting. It was agreed he would meet A with the SW and it would be her role to question A and his role to support A.[27]The Advocate appeared to me to be an honest, straightforward, if nervous, witness who did his best to recall what had taken place in August 2024. There is no merit in the criticism of the Advocate wishing to see A alone. What is odd, in my judgement, is that the Father knew A was to be seen by the Advocate and visited with all four children in addition to A. It was entirely appropriate for A to be seen alone. This did not reveal a preconception of abuse or a desire to demonstrate abuse had taken place. The Advocate elicited there had been touching. The Father accepts he touched A and washed her vagina and breasts. The Advocate did not therefore inappropriately elicit an allegation of sexual abuse against the Father. The complaints against the Advocate are largely without substance and he himself acknowledged asking closed questions and accepted the disadvantages of that, but (rightly) pointed to the challenges of communication with A.

The Social Worker (“SW”)

[28]Following A’s allegations to the Advocate, a strategy meeting took place on 21 August 2025. Arising from that meeting, a meeting was planned for the Advocate and for A’s social worker to meet with her and question her. This took place on Wednesday 21 August 2024 in the afternoon. This meeting was held at a professional support centre. Strangely, the SW did not file a witness statement in these proceedings. She did however provide a witness statement in the course of the police investigation. This was disclosed to the Father’s legal team very late. Nonetheless, Mr Tillyard took no issue with that other than asking (and receiving) further time for cross-examination of the SW. Her police witness statement is dated 15 October 2025.[29]She explained she had a positive relationship with A and that A was “able to share openly with me”. She began working with A in February 2024 and would see her more regularly than once every two weeks because of the risks her parents posed to her, often once a week. She explains in her witness statement that she would often write questions down for A and A would communicate and respond by circling answers. She says A presented as a “a very sad person” although there were moments of happiness that she had observed. She explains she did not know Father well as A lived with her mother before the allegations were made. She states A enjoyed spending time with the Father and indicated she was “safe and happy” around the Father. She notes A would spend time including overnights at the Father’s house. The Father and A spent time alone at his address.[30]As part of the child protection process she notes A had an advocate. She states the Advocate contacted her on 19 August 2024 because A had “disclosed that her dad had been touching her breasts and genitals. Following this contact, it was agreed that I would go out and A” (sic). She then says she believed she went out to see A on 20 August 2024 but could not be sure because of the passage of time. She recounts there was a strategy discussion on 21 August 2024 where it was agreed there would be a joint section 47 enquiry. On 21 August 2024 the SW visited A with the Advocate. She collected her from her home address and went to the local authority offices. She states they began with rapport building and playing with toys. “Eventually I said words to the effect of “[the Advocate] has told me what you have disclosed, is there anything you would like to tell me.” She then explains A pointed to the male and female Barbie dolls (that the SW had brought) but she cannot remember exactly what was said and makes reference to her notes. Her written evidence is that:
“A indicated that [the Father] penetrated her vagina and mouth with his penis. It was clear that [A] was showing us. I can remember that [A] indicated that it was her dad who had done these acts to herself, however, I can’t remember how this came about. [A] also indicated that it had happened a number of times.”
She goes on to say, “for the first time” A verbalised, she thought she recalled, to say it happened in the bathroom. A indicated she liked it, and it made her feel nice (a reference to the sexual relations said to have taken place).[31]The SW’s notes are handwritten. The notes are in reality what she wrote down and showed A. There are a series of questions and written answers below. I understand these were written out as the interview between the SW, the Advocate and A progressed. The notes are set out below. I have indicated in brackets my understanding of the words A underlined. “1. When I saw [the Advocate] before I said that my dad touches me + it makes me sad. This is where my dad touches me... My arms (My face) My legs My back My chest My feet My private area My arms (My face) My legs My back My chest My feet My private area 2. When dad touches my face, he uses his ... Hand another body part 3. This has happened... One time two times (lots of times) 4. This happens when I am... (In my bed) in dad’s bed (On the sofa) (In the bathroom) (On the floor) in the kitchen 5. Dad’s penis goes... (Inside my vagina) (On my vagina) 6. When this happens... (I am lying down) (I am sitting down) (I am standing up) 7. When dad puts his penis in my vagina, I feel... Sad scared (happy) (Safe) nice okay worried 8. It hurts... Yes no (sometimes) 9. When dad puts his penis in my vagina... (He stays still) He moves around He kisses me He cuddles me (He tells me not to tell anyone) 10. There is somewhere I can go with an adult I feel safe with... Yes No Nan Uncle – mum's brother Auntie- (dad’s) sister 11. The last time dad put his penis in my vagina was... today last night yesterday day time A few days ago A while ago (A long time ago) I can’t remember”

My private area

[32]She then explains that A spoke with the police at the same local authority office later that day. That she was present. She says in her witness statement:
“Whilst with the police, [A] spoke even more, which was astonishing.”
She refers again to her case notes. She explains that on 22 August 2024 A was taken to a unit to be forensically examined. During that examination she indicated the Father’s penis penetrated her anus. A was upset she could not see the Father anymore. She says A has come on “leaps and bounds” since being placed into supported living.[33]The SW gave evidence. When cross-examined by Mr Tillyard she could not explain why she had not produced a witness statement for the Family Court. She answered that she had not suspected the Father of sexually abusing A. She had wondered if the M had sexually abused A, given A communicated she was happier and safe with the Father. She did not recall telling the police she suspected the Father of sexually abusing A. She appeared to accept there was a working hypotheses – amongst others – that A was being sexually abused. She could not recall her contact with the Advocate before 19 August 2024. She was of the view what A told the Advocate was not necessarily sexual abuse, it could have been washing and a section 47 enquiry to elicit more information was required. She denied she went to the 21 August 2024 meeting to gather evidence, but rather her role was to carry out the section 47 enquiry. She gave evidence that she had an open mind as to what may have happened. She could not say if the dolls she used had clothes on, but the dolls had been used with many children, some of whom played and took the clothes off. She could not recall. Mr Tillyard raised several times why the questions did not have an option that nothing had happened.[34]I formed the view this was an honest witness. I accept the difficulty recalling the small details (however important) of events from August 2024. I do not accept the SW had formed a view the Father was sexually abusing A and that is why she instructed the Advocate. Indeed, the Advocate was instructed by the SW in a form dated 24 June 2024. It would be surprising if this instruction arose out of a concern of sexual abuse and that the advocate was instructed to ‘gather evidence’ that two months would be permitted to pass before the Advocate saw A. The referral form raises a number of concerns but records nothing about sexual abuse by the Father.

The Detective Constable

[35]The Detective Constable (hereafter DC 1) provided a witness statement in the content of the criminal enquiries. She was asked to attend to a report of a vulnerable female making allegations of sexual harm on 21 August 2024. Prior to her interview with A, she contacted the Social Worker. The Social Worker told her communication with A can be difficult; that A had told the Advocate her father touches her vagina and breasts; and that she had told her and the Advocate that the Father had put his penis in her vagina and in her mouth. DC 1 met with the SW at the local authority office between 18:38 and 20:15. She met A with the SW. A looked nervous. She said she wanted to talk to her about “why she was feeling sad when she saw [the Advocate]”. A nodded which she understood to mean “yes”. She asked again and A did not answer. She asked if she was sad about home and A nodded. A communicated it was about an object, and it was about her tablet. A told DC 1 she uses her tablet to take pictures of herself, and this included “her face, hands, feet, boobs, bottom and vagina.” When asked where her boobs and vagina were A was able to correctly point these out on her own body. A communicated no one else takes these photos.[36]DC 1 then asks if there is another reasons she is sad. A communicates ‘no’. She communicated she likes her Father not her mother. She likes her sisters. DC 1 asks if there was something else that makes her sad when at her Father’s house. A gave no response. A was reassured. She communicated her Father did not work and that it was his job to look after her. She was asked about a typical day. When asked by DC 1 if her Father washes her she nodded yes and nodded ‘yes’ to the fact her Father washes her “boobs, bottom, feet tummy, legs, vagina and back.” When asked if he washed her vagina with his hand, a sponge or a bit of both, she nodded to a “bit of both”. When asked if her Father “made her feel uncomfortable when he washed her” DC 1’s written evidence was “A was very slow to respond and took thinking time before turning her head slowly to look directly at me and nodded yes. I asked her if she knew why he makes her feel nervous and [A] looked away towards [the SW].” DC 1 records A was anxious, still and appeared to be concentrating. A then became distracted. Later, DC 1 asked A about what she had told the Advocate and the SW. A nodded that she had remembered telling the Advocate and SW something about what her Father did. A shook her head when asked if she could remember any of the words. DC 1 invited the SW to explain what was spoken. The SW used a male and female doll. “[The SW] explained that [A] indicated to her that her dad put his penis into her vagina. [The SW] asked [A] to point to her vagina to show me, which [A] did and nodded yes. [The SW] said to [A], “You told me that dad put his penis into another body part as well. Can you tell [DC 1]?” [A] pointed to her mouth. [The SW] used the male doll and asked [A] to point to another body part that her dad had used to put inside her vagina and [A] gave no response. [A] appeared very nervous and kept looking at [the SW] for reassurance. After a few seconds [the SW] picked up the arm of the doll and pointed to the hand and [A] nodded her head yes. I asked [A] if her dad had put his penis into her vagina once or more than once but she didn’t respond. I allowed [A] a few second to think and then asked if she knew how old she was when it first happened and she responded by shaking her head no. It was established through a series of questions that this happens on both weekend days and school days however [A] was unable to indicate how many days in a week this happens. I asked [A] when this last happened and she stood up to a standing position giving out a loud laugh that made myself and the social worker jump. I asked [A] the same question to which she verbally said “yesterday””.[37]The interview continued. “I encouraged [A] telling her that it was good she could speak and gave her reassurance. It was established that it had happened during the afternoon in the bathroom at her Dad’s home address. I asked [A] how it had happened and [A] had been to the bathroom to use the toilet when her dad entered and it had happened whilst she was standing up. I asked [A] how it made her feel, providing options of feeling sad, to which she shook her head no, unhappy, to which she shook her head no, frightened, to which she shook her head no and hurt, to which she nodded her head yes. I asked [A] to tell me how it makes her feel when her dad puts his penis into her vagina and she indicated by nodding her head that it makes her happy. I asked [A] how it makes her feel when her dad puts his penis into her mouth and she nodded yes to feeling the same, confirming it makes her feel happy. [A] was asked if her dad had ever asked her to touch him anywhere to which she nodded yes and when asked if this was his penis she nodded yes. [A] looked anxious and worried so I reassured her that she had done nothing wrong and asked her how she was feeling, asking if she was worried about what would happen to which she nodded. I asked her if she knew that what dad had done was wrong and she shook her head no. I asked [A] how it would make her feel if she were to go back home and it carried on and she indicated that it makes it her feel happy and doesn’t want it to stop.”[38]She was cross-examined. She had received training in dealing with vulnerable children and child protection. She had discussed A’s communication difficulties with the SW. When asked if she understood her role was to get A to repeat what she had previously said, she said “not at all.” She said that “my task was to establish from A in her own way, what had been happening if anything”. She said it was very difficult to obtain an account and that she had kept an open mind. She did not think A had said things to please her.[39]She was a straightforward professional witness, both credible and reliable.

Detective Constable 2

[40]Detective Constable 2 (DC2) was the officer in the case. He was involved in various forensic and technical investigations to which I will return. He conducted the ABE interview. I have watched the ABE interview twice. I have read the transcript of the interview. The ABE took place with A being questioned by DC2 and supported by an intermediary. The video lasts for one hour and twelve minutes. Another police officer was in the “control room” monitoring sound. DC2 asks A if she is okay and she nods willingly. Reference is made to the conversations with the Advocate and the SW in August 2024. Cards were used. A was told she could draw. DC2 told A to say/point/gesture/write what she knows and to tell the ruth and reassured her to say if she did not know. A was taken through ‘truth and lies’ by being shown a video and identifying a lie.[41]DC2 asked questions about A’s time living with the Father. A did not know the address or the name of the area where she used to live with the Father. She drew a picture of “the flat” and she communicated she lived there all of the time. She said “all of the time” when given options. She said “X” lived there all the time. She said X and Y lived there some of the time. “Did Dad help you to do things?” She indicated “no”. Did F help with cooking/washing/laces, A indicated F helped. A is shown a table of diagrams of things F helped her with. She communicated he helped with dressing. He did not help get to college. He did not help her watch K pop. He did help with using the ipad. He helped doing her hair. He did not help washing her in the sink. He helped her get ready for bed. He did not help tying laces. He did not help when she needed to talk to people. He did not help her with showering or a bath. He did not help her when she needed to speak on telephone. He helped with cooking. He helped her choose her clothes. She wrote that he helped “washing me down”. She said this took place in the bathroom. She indicated Father washed her down “all of the time” as opposed to some of the time or never. She indicated Father used something (to wash her down) and then she wrote down “a sponge” and “soap” when asked further. She could not or did not want to show what Father did when he washed her down.[42]DC2 asked what happened when she stopped living with dad and referenced the Advocate and the SW. She did not know. “What did you tell the Advocate and the SW what happened with dad?” She shook her head. She said she did not know what happened. DC2 then asks about “touching taking place” and A indicated she knows what he is talking about. When asked who touched her, again with reference being made to the Advocate and the SW, A wrote down “dad”. What did Dad touch you with, asks DC2 and the intermediary shows her a blank body map. She is then asked where Dad touched her and she draws on the vagina and shakes her head when asked the name for it. When asked what he touched that part of her body with she does not answer. She wrote her name on the body map sheet. She is shown another blank body map and asked to show what part of Dad touched her and she puts an X on the hand of the body map. She points between the legs of the body map and puts an X between the legs. Asked when touched if Dad had clothes on or off or something else, A points to a card that says “off”. When asked the name for the part of the body Dad touched her with she writes down on the body map “willy”. She then nodded to indicate she was touched elsewhere and then places a X on her mouth and verbalises mouth. She nods when asked if Dad touched her mouth with his willy.[43]A then demonstrates her understanding of ‘inside’ and ‘outside’ by reference to a box of tissues. When asked if Dad touched inside or outside her vagina she indicated outside but inside her mouth (she was also given the option of something else when asked by DC2.) She is then asked to indicate if the touching with the hand and willy in the mouth and between the hands has happened ‘once’ ‘some’ or ‘lots’ and she indicates “lots”. She then indicates he touched her between the legs with his fingers. She says this was “outside” when asked. She was asked who the first person was that she had told about this. She does not answer. When asked if she told the Advocate she nods. She communicates she had not told anyone before and that the Advocate was the first person she told. She was then asked how old she was when first touched and she indicates she does not know. She says it happened in a flat but does not know who’s flat. She indicates the touching took place in different rooms. She is then shown a drawing of a house with rooms and asked where the touching took place. She points to a drawing of a lounge and verbalises she calls it “living room.” She is then asked if it happened in other rooms and points to and names “bedroom” and “kitchen” and after a further pause points to and verbalises “bathroom”. She then says it also took place in “dad’s bedroom” and X’s bedroom and then says X was somewhere else when this happened. A then has a break. She returns and is asked about dad touching her mouth and between her legs with his hand and willy and is asked if Dad talked to her about this. She pauses for a long time and is asked again and appears to communicate no.[44]Aside from the interview, DC2 notes that criminal investigation was initiated on 20 August 2024 after the SW contacted the police in the light of the allegations made by A to the Advocate. An initial strategy was completed and a joint investigation was satisfied. Officers attended the home on 21 August 2024 to speak with the children. On 22 August 2024 officers arrested the Father and he was taken into custody. Forensic samples were taken by the police from A and the Father. The Father’s home was searched. Photographs were taken. Electronic devices, clothing and bedding were seized by the police from the Father’s home. On 22 August 2024 the Father was interviewed whilst in custody. He declined to make any comment. He was released on bail.[45]Various strands of the investigation then took place involving ABE interview preparation, forensic work and work on devices. As is set out above A was provided with an intermediary for the purposes of the ABE interview. The interview took place on 8 January 2025. The Father was interviewed again on 7 February 2025. He provided a prepared statement denying the allegations of rape and declined to make any further comments.[46]Initial forensics were returned on 15 February 2025 and are described as “inconclusive”. On 25 June 2025 DC2 was updated that A’s DNA had been found on the earlier penile swabs taken from the Father’s penis. The Father was arrested and interviewed again. He once again offered a no comment interview. The local authority carried out digital searches of the Father’s mobile telephone. It reveals the following internet searches carried out on the Father’s telephone:
“I had sex with girlfriend how long does her DNA stay on my penis”; “importance of DNA in rape cases” “Rape sexual assault and other sexual offences forensic evidence rape sexual assault.”
[47]He was cross-examined. He said the handwritten notes from the ABE interview were from the control officer, not him. He had seen the ABE intermediary notes for the interview before it began. He was not aware of A’s cognitive difficulties before the ABE interview. He had spoken to the intermediary though. He was taken to the intermediary’s assessment of A in the police notes on 7 November 2024 and he acknowledged that A was challenging to interview. He understood allegations of sexual abuse had been made prior to the ABE interview. He accepted when asked by Mr Tillyard that in the normal circumstances of a vulnerable adult, he would not interview in the manner he did with A. He understood no indecent images had been found on a tablet recovered from the Father’s house.[48]He was a straightforward, honest, professional witness.

The Forensic Scientist

[49]The police instructed a forensic scientist. He reported in writing after having carried out testing of swabs and clothing provided to him by the police. He noted vaginal and anal swabs were taken from A on 22 August 2024. Penile swabs were taken from the Father on the same date. The purpose of his report was to address whether sexual activity took place between A and her Father, to include vaginal anal and/or oral intercourse.[50]The DNA testing of the penile shaft swabs demonstrated DNA from two individuals. He conducted LiRa software testing of the DNA results. Understandably the testing assumed the DNA of the Father. His testing showed that the other person’s DNA was overwhelmingly likely to be A’s. It was a billion times more likely that the DNA was A’s as opposed to an unknown individual. The high and low vaginal and anal swabs taken from A showed no semen. A pair of pink and white underwear (containing a label with the age range 10-11 years) was found in the Father’s house. It was tested. It showed no amylase. Similarly no seminal fluid was discovered on the underwear. Weak DNA results were discovered on the underwear from the Father, A and a third person. The Scientist did not recommend LiRa evaluation of these samples. No saliva was found on the Father’s penile swabs.[51]The Father’s solicitor asked questions in writing of the Scientist’s report. In answer to the question:
“Could any DNA from [A] that was on [the Father’s] underpants have been transferred to his penis? The Scientist answered: “Yes, this is possible. However as stated in Question 9, [the Father’s] underwear has not been examined.”
Question 13 was:
“Could [A’s] DNA have been transferred to [the Father’s] underwear if she handled the clean pants before he put them on?”
The answer was:
“Yes, this is possible…”
[52]The Scientist was cross-examined. I asked the parties to agree a note of his oral evidence. The following exchange took place with Mr Tillyard: Q: So it remains a possibility that the DNA found on [the Father’s] penis was detected due to [A] handling his underpants in a similar way? A: It is a possibility, the levels of DNA on the penis was to such an extent that I would not expect it from secondary transfer alone Q: Not saying it couldn’t have happened? A: No, it’s just a very low expectation[53]In answer to a question from Mr Maynard the following exchange took place: Q: In light of the quantities of DNA recovered, it is more likely than not that DNA is attributable to sexual activity rather than secondary transfer? A: Yes, more likely than not.[54]I understood the last answer to relate to secondary transfer by way of use of the same towel or by way of A placing her hand into the laundry basket coming into contact with the Father’s underpants.

The Father

[55]In his response to threshold, the Father denied any form of sexual abuse of A. He filed a witness statement on 11 September 2025. He says he was shocked when the DNA results showed A’s DNA on his penis. He states this must have taken place by transfer to him “via clothing, use of the same towels, or the sponge and soap in the shower.” He says A required regular washing as she would wet the bed and “mess herself” and as such he would remove her pyjamas and wash her down. He purchased a bath for the children and A “did use this on a handful of occasions before I was arrested.” He says he would wash A with a “sponge and soap” and that he would use the same sponge and soap. He further states he shared towels with his daughters. He says A’s:
“DNA must have transferred to me when I have had a shower and used the same sponge or when I have dried myself with a towel that [A] has used.”
He gives written evidence that he would wash the girls’ and his clothes “on a 30 degree cycle” to conserve energy. He would place the clean clothes in a basket, and the children would help themselves to clean clothes from this basket. He says:
“It was possible that when [A] has been searching through the pile of her clean clothes, she may have handled my underpants before I put them on.”
He states “I do not have any other explanation for [A’s] DNA being present. I have not had sexual intercourse with my daughter, and I have not engaged in any sexual activity with [A].” He says he has been unable to get an erection for around two years. He had a one night encounter six months ago. He accepts he made the internet searches discovered on his mobile telephone. He says he wanted to get a better understanding of the process and had been confused about what he had been told. He accepts he searched how long DNA remains present after sex and says this was “out of curiosity” as he had been told it was five days and wanted to check for himself. In answer to questions from Mr Tillyard he said he gave a ‘no comment’ police interview on the ‘instructions’ of his solicitor.[56]In cross-examination, the Father gave evidence that the first and only time he had bathed A was on 21 August 2024. He had bought a bath to bathe A in or around 7 August 2024 after a visit from the social worker at the end of July 2024. On the night of 21 August/early morning of 22 August 2024, the Father said he had wandered the streets and slept on a bench. He says that when the police called him at 01:50 am on 22 August 2024 they did not tell him why they wanted to meet with him. He denied he was avoiding the police and being arrested and simply wanted to clear his head. He accepted he had not had a girlfriend for a long time prior to making his internet searches. He was shown many pictures taken by the police of his home but could not identify the laundry basket he says he kept his underpants in. He said that it gets moved around and suggested it was kept in a room off the kitchen in a part not visible in the photographs. He said that A cannot shower and she cannot even properly wipe herself. He said most of the time he wipes her bottom and he showered her. He would use a sponge and wash her between her legs and her breasts. He denied each separate allegations in the threshold when these were put to him. His evidence was that these allegations had never happened. Having watched his evidence closely I found his evidence and explanations hard to follow.

Detective Sergeant

[57]I also heard evidence from a Detective Sergeant who made an initial entry on to the police computerised system. The Father’s legal team considered this significant as the entry, dated 21 August 2024, states:
“Social services were concerned that [A] might be being sexually abused by her Father (with whom she lives).”
Mr Tillyard was concerned this demonstrated the questioning of A was unfair as the Applicant had determined the Father’s guilt before they began questioning A. The witness stated this entry could have come from different sources within social services and referred to the MASH system. She said she would not have written it down if it was not accurate.

The Parties’ Positions

[58]Ms Danton filed helpful opening and closing notes. She invites me to consider all of the evidence holistically and conclude the three findings can be made.[59]The local authority amended its threshold pleadings on the second day of the hearing to no longer pursue a finding that the Mother had failed to protect A from sexual abuse by her Father. This altered the role of the mother and from that stage on, the mother took no active part in the trial and did not advance any form of case on these disputed facts.[60]The Father’s case is set out in a clear and comprehensive note from Mr Tillyard and Mr Rank. I will return to aspects of their case below, but the summary of their case is as follows:
“We invite the court to find that: a. The way in which A was questioned by the Advocate, and then the SW, and then DC1 and finally in ABE interview was flawed in many respects, including it involved many breaches of the Guidelines, to the extent that it renders the resulting evidence as unreliable and insufficient to prove the case against the Second Respondent. b. The LA have failed to prove that the DNA found to be on the Father’s penis was as a result of him having engaged in penetrative sex with A. There is a realistic, alternative, explanation involving innocent social secondary transfer of DNA. c. The searches the Father made on his phone are not sufficient to corroborate the account given by A, particularly as he offers the court an alternative explanation. d. The LA have failed to prove the allegations of sexual abuse made against the Father in the amended threshold document.”
[61]The Guardian supports the Applicant’s case and invites the court to find the Father sexually abused A as pleaded. Mr Maynard’s crisp closing note highlights the following forensic points:a. There is nothing in the evidence to suggest the referral to the organisation which employs the Advocate was for any purpose other than for A to engage in the statutory child protection process.b. The Advocate’s actions on 19 August 2024 may fall short of ABE Guidance “best practice” but they were not manifest breaches, see for example Keehan J’s comments at paragraph 179 of Wolverhampton v JA [2017] EWFC 62.c. Even if there were breaches of the ABE process this does not automatically mean the accounts are unreliable.d. A alleged she was raped by the Father on 20 August 2024 and the Father bathed her on 21 August 2025.e. The Father’s conduct on 21 August was deeply curious. He did not ask questions to the SW as to why A had not returned nor did her contact anyone to account for the fact she did not return. He said words to the effect that he would not see A’s younger sister for some time. He left his home and walked the streets and refused to confirm his location to the police. Mr Maynard submits it was clear he contemplated arrest.f. The Father’s internet searches support the findings and his search term: “I had sex with girlfriend how long does her DNA stay on my penis” is revealing even if the court were to accept he was just curious about the DNA process.g. The forensic scientist was clear that:(i) A’s DNA was present on the Father’s penile shaft;(ii) the DNA was present in such quantities for the expert to conclude that it was more likely to be in situ due to sexual activity as opposed to secondary transfer.h. There is a triangulation of primary evidence: A’s account; the forensic evidence which supports sexual activity between A and the Father; the digital forensic evidence that is probative of the Father’s state of mind.

Analysis

[62]The bundle for the four day hearing runs to 3122 pages. A further bundle of 181 pages was filed during the trial. It is not possible to reference each bit of evidence, nor every submission made by the parties. Uppermost in my mind is the fact the Applicant must prove its case on the balance of probabilities. The Father need not prove anything. I must assess all the evidence and piece it together holistically to understand what did or did not happen. Criminal concepts are not of assistance. I have had the advantage of watching and listening to the witnesses.[63]I must consider how to approach A’s evidence. First, A is learning disabled, and the professional reports demonstrate she is cognitively impaired. The evidence from the ABE interviews and the evidence of other witnesses demonstrates her functioning is impaired. In addition to these matters she also has a profound communication disorder. This may or may not be brought about by anxiety. I have more extensively set out the background in respect of A above. This background causes me to approach her evidence with caution. However, the existence of these additional needs cannot lead me to automatically discount A’s evidence from my overall evaluation.[64]Secondly, there is some doubt as to whether A understands the difference between truth and lies. At the ABE interview, DC2 and the intermediary carried out a straightforward test, which A passed, and they proceeded with the interview. The psychologist who reported in October 2025 considered A did not have capacity “to understand the meaning of the oath (in simple terms) and her responsibility to tell the truth and potential consequences of not doing so. This is due to the unfamiliar and abstract nature of key concepts required to demonstrate an adequate understanding and ability to retain related information.” I note that at paragraphs 6.4.5 and 7.1.2 of her report, A was able to demonstrate a rudimentary understanding of the difference between truth and lies, with support.[65]Thirdly, I refused an application for A to be called and cross-examined at a pre-trial review on 29 October 2025. I gave an ex tempore ruling with reasons at the time. The allegations made by A as recorded on four occasions and in the presence of four professionals have not been the subject of cross-examination. This is further reason to pause carefully when approaching such evidence. The inconsistencies have not been tested. Mr Tillyard has not been able to put his client’s case to A. Inevitably, I must accord less weight to unchallenged evidence, and I do so.[66]Fourthly, the ABE Guidance has not been universally applied to A’s allegations. I agree with the following complaints which are made by Mr Tillyard and Mr Rank in their written closing submissions:a. The Advocate was not skilled in working with those who were selectively mute and asked leading questions. An example of that is when he asked A where she had been touched and pointed to his chest and between his legs.b. The evidence about what took place after A told the Advocate on 19 August 2024 and the interview between A, the Advocate and the SW was unsatisfactory. It should have been planned and approached in a sensitive manner and properly recorded and documented.c. It was wrong for the meeting between the SW, the Advocate and A to begin with reference to what A told the Advocate two days earlier. A more open series of questions would have been fairer.d. It is unsatisfactory the court was not told whether the dolls were clothed or otherwise. The SW says she could not recall. DC1 was not asked.e. I accept there was a degree of confirmatory bias at this second meeting, but I would not characterise it as a “high degree”. The allegations clearly developed, and A was given the opportunity to explain the nature of the touching. A made clear the touching did not have an innocent explanation but was sexual and involved the Father’s penis. I reject therefore the submission there was a high degree of confirmatory bias.f. I accept the criticism that DC1 would have been better not to have referred back to the conversation with the Advocate and the SW. However, communication in the abstract was difficult for A.g. I also accept that at the ABE, A makes no allegations of sexual abuse against the Father during the course of questioning that were intended to prompt her to do so, which led DC2 to then make reference to the Advocate and the SW conversation of months earlier. This encourages A to repeat what she has said before.[67]There are criticisms made by the Father’s legal team that I do not accept. Overall, I do not accept the SW and/or the Advocate had formed the view the Father had sexually abused A and the purpose of meetings on 19 and 21 August 2024 was to gather evidence to confirm that. They were carrying out their respective functions within the child safeguarding framework. I do not find it surprising that A told the Advocate of touching on 19 August 2024, in the context she had not said this to her SW, albeit she knew the SW better. The oral evidence was that this might have been because of his gender or because touching had recently taken place. I accept that. I do not accept the Advocate was wrong to ask to see A alone and nor that he wanted to speak to her first and not to the parents. She was after all nearly eighteen and deserved to be treated in line with her chronological age, even although she has additional learning needs. Furthermore, the Advocate was precisely that: an advocate for A and not another social worker. His job was to speak to A and communicate her communication and amplify it, not to speak with her parents and advocate for them.[68]I accept the Advocate would have been better not to use the leading question, “Does Dad touch you?” But it does not follow that this “exchange that sets everything in motion” is as problematic as the Father submits. His own case was that he touched her, indeed washed her vagina and breasts when she was naked. Furthermore, A was not accusing others of touching her. She was capable in this same interview of indicating she felt safe with mum but not dad. She was capable of communicating that Dad gets angry but she then communicated he did not hit her. She was not merely agreeing to the questions asked and nodding to everything. She communicated she wanted the social worker to know but that she did not want her mother to know. When asked if her brother hurt her, she communicated no. I must consider the evidence overall. A was able to communicate and A was able to make clear her communications, therefore I reject the submission that “the response” should be “regarded as having little or no probative value.” Furthermore, having observed the Advocate, I do not think A would have considered him a person in authority that she would have felt she had to agree with her. She was capable of communicating when she agreed and when she disagreed with his questions. The interview seen overall has probative value notwithstanding the challenges and the lack of adherence to all parts of the ABE Guidance.[69]In respect of the second meeting in the timeline, the 21 August 2024 meeting with the Advocate and the SW, I have already rejected the Father’s main criticism that it had a high degree of confirmatory bias. It would have been better not to have started with reference to the Advocate and it would have been better to have a written option of “nothing happened” but it was a difficult process to elicit A’s evidence. I have set out what she told the SW. Again, there are limitations on the weight to be attached to this evidence, given there was not strict adherence to the ABE Guidance and given A’s functioning, but she was clearly able to communicate sexual abuse by the Father as recorded in the evidence above. Therefore, the evidence has some probative value within the confines of the limitations on A’s evidence set out above.[70]I adopt much the same analysis in respect of the third meeting, which took place with the addition of DC1, some hours later on the same day. The evidence does not suggest A was exhausted. She had had a break. It was the school holidays. Again, it was a difficult interview. Ideally reference would not be made back to the conversation with the Advocate and the SW. I accept the submission that this approach has “a negative impact on the quality of the responses” but it does not rob them of all probative value. Within the limitations of A’s communication and separate cognitive difficulties, in three meetings, over three days, A provided a fairly consistent picture of sexual abuse on the part of the Father. The weight to be attached is reduced for reasons I have accepted, but the evidence has some probative value. The fact that the three interviews over three days to different professionals is largely consistent adds to the weight that can properly be attached.[71]The ABE interview recording some four months later is similarly difficult. A verbalises some answers. She can communicate through gesture such as nodding. Additionally, she communicates through choices on cards. She can also write down some answers in response to questions. The questions from the intermediary and DC2 can all be seen and listened to and read, as can the communicated answers either on the video or the transcript. The prompt of mention of what was said to the Advocate and the SW is understandably criticised, but importantly, I note the following. When asked the open question “which people or what people touched you?” She writes down “Dad”. Using open questioning she then uses the body map to communicate Dad’s hand and “willy” touched her moth and her vagina. There then follows a careful line of questioning about her understanding of inside and outside and she communicates Dad’s willy was inside her mouth and the outside of the vagina. What is further of note is that A is making slow, careful and deliberate choices in responses to questions she understands. I place some weight on her ABE interview, recognising the limitations I have explained.[72]Importantly, I have considered A’s evidence given to at least five professional witnesses across 4 ½ months. I have had the advantage of hearing the evidence of those witnesses who received this evidence: the Advocate, the SW, and both investigating police officers. I have considered the video, written and live evidence together and considered it across the timeline in which A disclosed it. I come to the conclusion, notwithstanding the articulate forensic challenge laid against it, that A’s evidence has some weight, some probative value for reasons I have explained. That is despite:(i) A’s cognitive and communication difficulties;(ii) the failure to follow all aspects of the ABE Guidance (ii) the fact A was not called and cross-examined as a witness and (iv) questions are raised about her full understanding of truth and lies.[73]Moving on from A’s evidence. I accept the expert forensic scientist’s evidence that A’s DNA was present on the Father’s penile shaft and the DNA was present in such quantities for the expert to conclude that it was more likely to be in situ due to sexual activity as opposed to secondary transfer. Mr Tillyard through his cross-examination did chart a possible alternative explanation which was that it is possible A placed her hand in the laundry basket and touched the Father’s underpants and this is how A’s DNA arrived on the Father’s penile shaft. Mr Tillyard’s case on behalf of the Father is that:
“a. On the female knickers found in the back bedroom aged 10 to 11 there was found DNA from three possible contributors – the Father, A and someone else. b. This finding doesn’t assist to confirm whether the Father had engaged in sexual activity with A because the DNA may have been transferred in a number of innocent ways, including the Father and others in the household handling the pants in the clean clothes basket thereby transferring their DNA to the pants. The fact that there is DNA from 3 people on the pants indicates that three people have been in contact with them. c. Had there been A’s DNA on the Father’s underpants it could have been transferred to his penis. d. A’s DNA could have been transferred to his underpants had she handled the clean pants before he put them on. e. the Father’s underpants were never tested and so we don’t know if A’s DNA was on them, but it must be a possibility as we know it occurred in relation to the underwear that was tested. Her DNA may have been on them. f. The DNA found on the Father’s penis may have been transferred in that way; g. A’s DNA may also have been transferred to the Father’s penis by them both using the same towel after showering. h. Whilst the expert was not prepared to say that the Taylor research paper “Background Levels of Body Fluids and DNA on the shaft of the penis and associated underpants in the absence of sexual activity”
A Taylor et al Science and Justice 63 (2023) 529-536 was irrelevant to this issue, he did accept there were a number of material differences – clean underwear, no sexual contact with anyone, no evidence of any contact between second parties and the pants including partners, clean genitals.”[74]The expert when considering the quantity of the DNA was clear in answer to Mr Maynard that sexual relations is the more likely explanation for the fact that A’s DNA was on the Father’s penis. I accept the highly professional witness’s evidence as to what is more likely. I have taken into account that the balance of probability lies in respect of the ultimate question and not each piece of evidence and it is not for the Father to prove secondary transfer through the laundry basket or the towel. I have considered the DNA evidence in the wider context of all the evidence. It plainly supports the applicant’s case that sexual relations took place between A and the Father when seen in the context of the other evidence relied upon.[75]Having watched the Father’s evidence he appeared unreliable and not credible. His evidence, for example, as to why he was searching for the admitted internet terms and his response to his reaction to events on the 21 and 22 August 2024 was not believable. I consider it likely the Father was not curious about A’s whereabouts because he knew he had had sexual relations with her. He was avoiding being at home and communicating with the police because he knew it was likely he would be arrested for what he knew he had done. He wanted to avoid that. I also consider his explanation of assembling the bath and bathing A for the first time on 21 August 2024 was not credible. It is a reasonable inference he was destroying forensic evidence.[76]The Father’s internet searches also reveal his state of mind. He knew he had had sexual relations with A and was worried about how long his DNA would remain. He accepted in evidence he did not have, and had not had, a girlfriend for a long time prior to the internet searches carried out on his telephone. His explanation for the use of the search term “sex with my girlfriend” was not credible. He was not telling the truth because he was worried because he knew his DNA might reveal his sexual relations with A.[77]Considering all the evidence together and holistically, I am satisfied the three separate allegations in the threshold are proven. It is more likely than not the Father sexually touched A, and inserted his penis into her mouth and vagina as pleaded. I have carefully considered whether I can make all the findings. I find the Father lied in his evidence. The totality of the evidence demonstrates it is more likely than not the sexual touching also involved placing his penis in A’s mouth and vagina. I have taken into account the minor’s discrepancies:(i) on an occasion A communicated the Father’s penis was outside not inside her vagina;(ii) when the forensic testing took place, I am told, A communicated the Father had inserted his penis into her anus. These matters were not pressed by the Father’s legal team and having considered them in the context of all the evidence I am satisfied the three allegations are more likely than not to have taken place.[78]I have also considered the fact A communicated she took images of her naked body with a ‘tablet’ and none appear to have been found. Mr Tillyard submits this is an example of A providing unreliable and/or false evidence in the interview. It is not clear which tablet or iPad A was referring to. It is further not clear whether this tablet was discovered and was the one the subject of testing. Nor am I clear what was or was not found in the tablet tested. I do not therefore consider this undermines the limited weight that I have attached to A’s evidence as described above. Even if I am wrong about the exact chain of custody of this tablet, it would not impact on the weight I have attached to A’s evidence in the context of the other evidence.[79]In summary the following evidence makes good the applicant’s case the Father sexually abused A as pleaded:a. Attaching some weight to A’s evidence about what happened with her Father over four meetings over four months;b. the Father’s reaction on 21 and 22 August 2024, in particular:(i) his lack of curiosity about where A was after being taken away;(ii) his interaction with his younger daughter;(iii) his staying away from his home into the early morning and avoiding the police;c. the Father’s internet searches, particularly the one framed about him and a “girlfriend”;d. the forensic science evidence that it is more likely than not the DNA on the penile shaft was brought about by sexual relations and not secondary touching;e. the fact the Father placed A in a bath he had bought for the first time on 21 August 2024.[80]The individual parts of the evidence relied upon by the applicant are summarised above, but must be considered holistically and together, not in isolation. When considered in this context it is more likely than not the applicant’s case on the three disputed threshold allegations took place than did not take place. As Mr Maynard correctly submits, the triangulation of the evidence makes good the applicant’s case. I therefore make those findings.[81]I thank all counsel for their skilful presentation of their respective cases and ask they draft an order which includes the findings of fact made in this judgment.