CF v CM (Finding of Fact Judgment 1) [2023] EWFC 346 (B)

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 child 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.This Transcript is Crown Copyright.  It may not be reproduced in whole or in part other than in accordance with relevant licence or with the express consent of the Authority.  All rights are reserved.IN THE FAMILY COURT IN THE MATTER OF A CHILD ‘X’[2023] EWFC 346 (B)This judgment is linked to [2024] EWFC 477 (B) and[2025] EWFC 496 (B)Finding of Fact Judgment 1
Between
CFApplicantCMRespondentCF, the father was represented by Nathalie Bull instructed by Lyons Davidson Solicitors. CM, the mother was represented by Amanda Rhodes instructed by RWK Goodman.Note: This judgment is one of three to be published concerning this family and is published as it provides an example of the difficulties inherent in findings of fact involving allegations of the abuse of a child and is interesting in that the judgments taken together show how it is possible to reach different conclusions in relation to a set of facts as elements of the evidence change. I am grateful for work of Ms Bull in assisting with anonymisation. The parties attended a hearing to consider publication, and their views have been considered.________________________________________________________________________Judgment of District Judge Webb following the Finding of Fact hearingwhich took place on 20, 21 and 22 November 2023Date 2023-12-13
[1]This is my judgment following a finding of fact hearing which took place as above. I took evidence from the parties, who are the parents of X, a girl aged 5, and from the maternal and paternal grandmothers.[2]The mother has made four allegations against the father as follows:a. The respondent was physically abusive towards her in early 2022 when he pushed her and pinned her down to the bed during an argument after she had seen bank statements on his phone showing money spent by him on adult websites.b. The respondent was financially abusive towards the applicant throughout their relationship spending family money and accruing significant debt in the region of £7,000 on adult websites.c. The respondent perpetrated emotional harm towards her due to skewed sexual boundaries, refusing to engage in an intimate relationship with her whilst at the same time watching pornography, engaging in live sex chats, including sending explicit video and picture messages to live sex chat rooms.d. The respondent sexually abused X (details omitted).[3]The respondent accepted he had spent £7,000 on adult websites and accordingly he made admissions which stated: a. In respect of allegation 2 in the schedule the respondent admits that he spent in the region of £7,000 on adult pornographic websites and in respect of allegation 3 the respondent admits that he viewed pornographic websites and engaged in live sex chats. In those circumstances I determined that the allegations which were necessary to be determined at the fact find were allegations a and d.[4]As the evidence was presented it became clear that there was a central accepted narrative with specific areas of disagreement. It is useful in this case where evidence comes from multiple sources to set out a chronology allowing focus on the contested evidence which assists in determining the allegations. In setting out this narrative I remind myself it is for party who seeks to prove a factual assertion to provide evidence such that I am satisfied on the balance of probabilities that that fact occurred. I will set out the evidence which is central to the decisions I make but I have considered all the evidence. The fact a piece of evidence or a submission made is not referred to does not indicate that it has not been considered Chronology 2018: X born Early 2022: the mother discovered pornography on the father’s phone including a message sent by him which involved a photograph of him sitting in his works van in uniform with an erection. That photograph was sent to an unconnected woman. The mother accepted that she slapped the father to the face whilst he was asleep. Photographic evidence confirmed scratches to his face and neck. The mother’s evidence tacitly accepts she did cause those injuries as she was clear not to make a denial, in cross examination she stated:
“I cannot say whether they were me or he did that to himself. I don’t recall the actual incident there were lots of things that happened at that time. We had lots of scuffles about this time.”
When the mother was spoken to by the police about the injuries there was confusion as to when exactly they had occurred, but she did not dispute causing the injuries. The assertion she did not remember the incident is not credible. She phoned the paternal grandmother afterwards and asked if the father could sleep at her house the following night. The injuries were visible to the paternal grandmother who took photos of them. This was a major incident in the life of the parties, and I have no doubt both have a clear recollection of it. Early 2022: Whilst checking his phone the mother discovered the extent of the father’s debts from his use of pornography. She alleged he pinned her down on the bed and pulled the phone from her. He alleged she jumped on the bed with the phone beneath her and he had to reach under her to retrieve it. This is allegation a. Whilst the exact details of the incident are disputed the mother accepted under cross examination that after the incident she went downstairs to the kitchen, picked up a knife and stabbed the worktop a number of times. Early 2022: a police log stated a call was made to them from the family home. When the police spoke to the mother, she told them there had been no violence in the relationship. Early 2022: a meeting took place between the mother, the PGM, and the father which led to an agreement that his salary should go into a joint account to be monitored, and the couple should commence sex addiction counselling. Spring 2022: The parties have disclosed the text messages between them. These suggest in the run up to a spring weekend in 2022 their relationship had settled down following the early 2022 events. The texts contain friendly conversations about jobs, and the mother sends the father the following text:
“What time will you be back? I could do with some shower help (wink emoji)”
Spring 2022: during the afternoon of a Friday the mother and MGM were at the mother’s home. The MGM’s children, Y and Z were playing with X. At some point during this play X tells the other children that the father had carried out an act. Y approaches the MGM to tell her this at the time but is told not to whisper. (Allegation d) On the way home in the car Y told the MGM that X had said “details omitted” Z confirmed that X had said this twice. During cross examination the father stated that he had thought that these discussions had been made up but over time he had come to accept that X did state these things. He further accepted that Y told the MGM about what X had said. In cross examination he stated the following:
“there is no reason Y and Z would lie. I wouldn’t have thought they would make it up.”
He also stated:
“there is no reason to believe the maternal grandmother is not reporting it correctly”
Spring 2022: On the Saturday the MGMtravelled to her daughter’s home and met the mother there. The MGM relayed what Y had said, and this led to X being called over and asked what had occurred. X gave an account. The mother then phoned the PGM and told her that there was something about X they needed to discuss with the father. It was agreed that they would all meet at the PGM’s house and the father would be asked to join them. The mother then phoned the father, and he agreed to go to the PGM’s house. The MGM, and the mother travelled to the PGM’s house. The father was already there, and the mother informed him what X had said, and he denied doing what was alleged. The meeting broke up when another family member became angry. The father states the mother told him that she had asked X questions which required “yes” or “no” answers. Spring 2022 the Sunday. The PGM and the father go to the family home to pick things up. There were discussions between mother and father. Here there is a very significant factual dispute. The father states that he was shown a video which whilst not being entirely clear to him demonstrated X was ‘retracting’ the allegation. Following this it is accepted that parents and X end up together. There is a dispute about who called X over and who did most of the talking and there is a further dispute as to who was positioned where. However, the father accepts that during this conversation X said something had occurred (details being omitted) but she then quickly stated that she was only joking. In cross examination he described this incident as follows; “I was stood up. I wasn’t talking to X. The mother initiated the conversation. I was listening. We were stood round a table. X did say (quotation omitted). I did hear her say it.” The mother states that the response of “I am only joking” only came in relation to a question posed by the father along the lines of “why did you say that?”. Following on from this discussion the father informed the PGM that X had withdrawn the allegation. Spring 2022: The Monday: the PGM and the father returned to the family home as father was to babysit whilst the mother undertook a video counselling session. After discussion the parents jointly called the NSPCC at 13.27. The notes provided by the NSPCC read as follows:
“both mother and father have contacted the NSPCC helpline to share information. Their 3-year-old daughter, X has disclosed on Friday, to ‘blank’ whilst on a trampoline that (details omitted) When mother was made aware of this, she called father and she met up at the ‘blank’ home with ‘blank’ to discuss the disclosure. The information was disclosed to father who disputes the allegation and says they are untrue. Father stayed the night at ‘blank’ home as he did not want to cause his daughter any distress. Father, at the time of the call to the NSPCC is living in the family home. When asked by mother when this happened X said “when you were out”
. Mother has recently been away for two nights on a hen weekend and therefore mother thinks X was referring to this time. Both mother and father had questioned X about what happened and X said she was only joking and that daddy did not do this. X said yesterday, that two boys at nursery, ‘blank’, got their willies out. Nursery have not shared any concerns for X. Both parents are concerned by the disclosure and decided to contact the NSPCC for the best course of action. Mother believes that father has not sexually abused X. Father states that he will move in with ‘blank’ until investigations have completed.” The Police contacted the mother after receiving this information from the NSPCC and the police also referred the matter to Children Services. At 18.08 the mother texted the father to say:
“I hope you know we all do care for you and hopes everything ends up ok. As long as X is happy that’s fine.”
The night is ended by a text from her saying “We love you, x” and a response “Not had anything. Love you all too x” The Tuesday: PGM and father take some shopping to mother. At 12.59 the mother texted “I feel really emotional after I see you, of course I don’t know what to think. I want to be supportive to both you and X you are both my family xxx” The Wednesday: strategy meeting took place convened by the police. The notes of this reads as follows:
“I attended a strategy meeting today at 12:00 PM present was Note Taker/social worker /chair/Health/Nursery were present however I did not get their names. Nursery stated that they had had previous concerns in relation to some bruising and marks on X. This was in 2020 when the nursery was under a different name and management. After some questions it was established that the bruises were on shins and knees, apart from one which appeared to be on her pubic bone. Parents provided an explanation that they were having house renovations completed that X regularly tripped over. Health had nothing relevant to share. The family are not known to social care. Only one instance of relevance- DV incident in January. All parties involved agreed that the disclosure was concerning for a three-year old to say without being prompted in some way. It was discussed as the disclosure was to ‘blank’ who are only ‘blank’ years old themselves we have to be open minded about the conversation they were having in order for X to disclose what she said. All parties agreed that due to the disclosure and previous instant where father had used credit cards to access porn. The positive is that father and mother are going to therapy to discuss their marital issues. All parties agreed that this met the threshold for section 47 scale of 3-4. Agreed that as X had not disclosed to an adult and when questioned by her mum she denied it there would be no involvement from police at this time.”
As a result of this discussion police involvement ceased at a very early stage. It is concerning that this appears to be based on a false understanding of the situation. By this point in time the allegations had been made in some form to the mother in the presence of the maternal grandmotherand the father in the presence of the mother. Later that week: social worker, visited the child. The social worker was told that X said he (had committed an act) but she was joking. The social worker then asked X if she had said that and X agreed she had and said she did not know why she had said it. The day after the social worker’s visit: the mother sent a long text at 16.40 about the relationship stating amongst other things:
“We need to spend quality time together as a family and as lovers”
It is clear from this text that by this date the mother was focused on improving the relationship between the parties and this indicates she had reached a position where she did not believe the allegation was true. Approximately a month later: A social work manager confirmed the social worker’s assessment that the reports of any form of sexual abuse were unsubstantiated leading to a closure of the section 47 investigation. The social worker’s summary includes the following:
“It does seem strange that X has made an allegation that…. X also said that 2 boys in nursery showed their willy’s but when asked said it was ‘blank’ and not her…. X has not been truthful about incidents in nursery, so this raises the question about the validity of the allegation about her father especially now when she said she said she was joking. It does appear that X may have made this up.”
Late Spring 2022: the mother stated this is the day the relationship ends. Between a disputed date between May and the beginning of June and September the care of X was shared. Unknown date in August: the mother suggested X had a vaginal infection. Early Autumn 2022: the mother took X to the doctor due to vaginal soreness and pain. X reported that the father had taken her late at night to an unknown woman's house. They had had to knock on the window to wake the woman up who was sleeping on the couch. X reported sleeping in the unknown woman's bed. This was clarified by the father who stated that he had taken X to a friend’s house as it was closer to a theme park they were visiting the next day and that he had slept downstairs with the woman and X had slept in her bed. That day: the mother stopped contact between X and the father. 2 days later GP safeguarding lead reported redness and irritation to X’s vaginal area. No ongoing referral was made. 4 days later 2022: there is a police log regarding a complaint made by the mother that the father had visited the family home and removed papers including an annotated version of the conclusion of the social work investigation. 5 days later; there is a further police log regarding a further visit to the house made by the father and a relative. It is accepted that the father went to collect certain items and the police attended. Late on that evening a conversation took place between the mother and X during which the mother stated that the police were there to help when you are frightened, and she indicated that they look at things like when X had made a previous allegation. At this point X is alleged to have told the mother that the allegations were true and she added a thrusting motion and stated that her dad had put his bum on the bed and taken off his pants. This led to the mother recording X when she repeated this allegation. An agreed transcript of this recording exists but is removed from this anonymised judgment: Autumn 2022 as a result of this further repetition of the allegation the Spring 2022 allegation of sexual abuse is resurrected. Autumn 2022: The local authority commenced a further Section 47 enquiry. Autumn 2022 Specialist Advanced Children’s Interviewer met X at nursery and assessed her as suitable to be ABE interviewed. Autumn 2022 an ABE took place where X made a repetition of the allegations in a manner which the police officer describes as “a clear disclosure’. (the details of the ABE are omitted) The police formed a view that the allegation had substance and referred the matter to the Crown Prosecution Service. During cross examination the father was asked to comment on X’s interview and he stated as follows:
“I thought it was awful when I watched my daughter. There was a consistency in it. She doesn't seem to be trying to please. I'm not aware of her having any life experience which would allow her to describe this”
Autumn 2022: social worker’s assessment that the concerns are substantiated. Late Autumn 2022: the father attended a police station voluntarily and gives an interview under caution making full denials of the allegation. Late Autumn 2022: the mother provided a statement to the police. Late Autumn 2022: the mother applied for a Child Arrangements Order, Winter 2022 Y was ABE interviewed and confirmed the discussions during the play session on Good Friday. Christmas 2022: Facetime contact between X and the father. By agreement the father attended house to give X presents. Early 2023 the Crown Prosecution advise that no further action should be taken against the father quoting “evidential difficulties”. Early 2023: the father applies for a Child Arrangements Order

Chronology

[5]From this chronology the following initial factual findings can be made:a. There is an acceptance on the part of the mother that she was physically violent to the father in January, slapping him in his sleep.b. I find that during a confrontation in January 2022 the mother scratched the father to his neck. My analysis of this is as above.c. The cause of the confrontation was a very significant addiction to pornography on the father’s part and risky and deeply unpleasant sexual conduct on his part. This included the two-way use of sex cams and the sending of images of his erect penis to a third party.d. Following the incident the couple made significant efforts to repair their relationship including undergoing counselling. As Spring approached their relationship was friendly and certainly the mother was committed to it continuing. This is evidenced by the text conversations.e. On date as above X told her two aunts that her father had (details omitted)f. Her aunt Y told the MGMon the same day this allegation was made.g. When asked the following day X repeated the allegation in the presence of the mother and the MGM.h. The father made an early denial of any wrongdoing.i. When spoken to in the presence of both parents X accepted she had said those things. She then said she was joking.j. When the parties spoke to the NSPC, they both accepted the allegation had been made.k. At the time the allegation was made the mother had uncertainties about the truth of it and shared these uncertainties with the NSPCC and the father.l. The police concluded their initial investigation without a full understanding of the chain of evidence.m. When the social worker spoke to X, X confirmed she had made the allegation but stated she did not know why.n. Children’s Services were satisfied that the allegation did not have substance.o. The couple attempted to rekindle the relationship with the father spending up to four nights at the family home during Spring 2022.p. The relationship broke down but the mother acted in an organised and co-operative manner providing a schedule of time spent with both parents.q. By the time the police and children’s services had concluded their investigations the mother had reconciled herself to the allegations being untrue. This is evidenced by her texts seeking to improve the relationship and her provision of a schedule dividing time almost equally between the parents.r. The mother became concerned about redness and soreness in X’s vaginal area during the summer and organised a doctor’s appointment.s. the mother was told by X that she had been taken late at night to a woman’s house and slept in her bed. Given the father’s past risky behaviour this would have raised genuine concerns on the mother behalf leading to her suspending the contact arrangement.t. The knowledge of these events and the subsequent visits made by the father to remove items from the family home led to further police involvement.u. On a date in Autumn X repeated the allegation.v. X was ABE interviewed and in the view of the police and children’s services provided a consistent account such that children’s services changed their view to the allegations being substantiated. The father accepted the interview was consistent.w. I have no evidence of any other potential sexualised behaviour X may have witnessed save there is the mention of two boys at nursery showing their ‘willies’ to someone.

The Law

[6]In Re A (No.2) (Children; Findings of Fact) [2019] EWCA Civ. 1947 Peter Jackson LJ said the questions for every fact finder, are What, When, Where, Who, How and Why? Some answers, he said, will be obvious, while other questions may be extremely hard or even unanswerable. Sometimes a question may not need answering at all. The answers to the questions will be provisional until they have been checked against each other to provide a coherent outcome.[7]The court is not bound by a schedule of findings sought and may reach an alternative solution of its own: Re S (A Child) [2015] UKSC 20. If, however, the court is to go ‘off piste’, there must be a good enough reason and solid evidential basis for doing so and procedural fairness must be maintained (the person against whom the finding is sought must know the nature of the allegation and the substance of the supporting evidence and have a reasonable opportunity to respond): Re G and B (Fact-Finding Hearing) [2009] EWCA Civ 10. Re B (A Child) [2018 EWCA Civ 2127 and A (No.2) (Children: Findings of Fact) [2019] EWCA Civ 1947.[8]Where factual matters are in dispute the burden of proof is on the person making the allegations. That party must satisfy me the finding they seek are true on the balance of probabilities, meaning I must be satisfied it is more likely than not that the matters they assert are true. If a fact is proved it happened, it if is not proved it did not happen and must be disregarded- the so-called binary consequence. As a matter of common sense, the court can take into account inherent improbabilities in deciding whether the standard of proof has been met. Re B [2018] UKHL 35[9]Findings of fact must be based on evidence, not speculation: see Re A (A Child) (Fact-finding hearing; Speculation) 2011 EWCA Civ 12. While the court may draw proper inferences from the evidence it must be careful not to reverse the burden of proof.[10]When carrying out the assessment of evidence the court invariably surveys a wide canvas. It must take into account all the evidence and, furthermore, consider each piece of evidence in the context of all the other evidence. It should exercise an overview of the totality of the evidence in order to come to the conclusion of whether the case put forward has been made out to the requisite standard of proof.[11]The evidence of parents is of the utmost importance and the court must make a clear assessment of their credibility and reliability: Re W and another (Non-accidental injury) [2003] 2 FCR 346. Of particular importance is the direction given to juries in the case of R v Lucas [1981] QB 720. It is not uncommon for witnesses to tell lies in the course of an investigation and the hearing. Witnesses lie for different reasons, such as shame, misplaced loyalty, panic, fear and distress. The fact that a person has lied about one thing does not mean he has lied about everything. I have to be satisfied that the lie is relevant to the finding sought.[12]There is a different but related question of witness fallibility, which is a matter of reliability rather than credibility. The court should bear in mind the recall of events by a witness is a process of fallible reconstruction which may be affected by external influences and supervening events, moulded by the process of litigation and the drafting of lawyers, with past beliefs being reconstructed to make them more consistent with present beliefs and motivated by a desire to give a good impression; Gestmin SGPS Sav Credit Suisse (UK) Ltd & Anor [2013] EWHC (Comm), Leggatt J.[13]Whilst not law, Lord Neuberger, the President of the Supreme Court from 2012 to 2017 in his 2017 Denning Society Lecture stated “The best guides to reliability of an individual’s testimony on an issue are, in my view,(i) consistency with objective evidence- e.g. contemporaneous correspondence,(ii) internal consistency – i.e. consistency with the individual’s testimony on other issues,(iii) inherent likelihood, and(iv) consistency with other witnesses’ testimony.” (para 11) This approach has been helpfully reiterated in the Family Court by MacDonald J in Cumbria County Council v R (Special Guardianship Order or Interim Care Order) [2019] EWHC 2782 (Fam) where he states at paragraph 26 "Within the context of the foregoing legal principles, this court must bear in mind that the assessment of the credibility and reliability of the parents should coalesce around matters including the internal consistency of their evidence, its logicality and plausibility, details given or not given and the consistency of their evidence when measured against other sources of evidence (including evidence of what the witness has said on other occasions) and other known or probable facts. The credibility and reliability of that parent should not be assessed simply by reference to their demeanour, degree of emotion or other aspects of their presentation. This of course works in both directions. It is as problematic to rely on an impression that a witness has an 'honest' tone, manner or presentation, for example that they appear "genuinely upset", as it is to rely on an impression that the tone or manner of a witness appears 'dishonest', for example that they cross their arms or look at the floor. These principles must apply both when the court is evaluating the parent in the witness box and when the court is evaluating the significance of the observations of other's regarding the parent's demeanour at a given point."[14]Sadly, allegations of sexual abuse are frequently dealt with by these courts, and it is useful to summarise the specific approach to these difficult cases. MacDonald J in Re P [2019] EWFC 27 (§3) stated that cases of alleged child sexual abuse create particularly acute forensic difficulties for the family courts charged with determining whether sexual abuse has occurred and, if so, who has perpetrated that abuse. McFarlane LJ (as he then was) observed in Re A (A Child) (Vulnerable Witness: Fact Finding)[2015] 1 FLR 1152 at [72], that no case of alleged sexual abuse where there is an absence of any probative medical or other direct physical evidence to support a finding can be regarded as straightforward.[15]At §577, MacDonald J goes on to set out matters of which the court can properly take judicial notice in relation to allegations from children, including that children are suggestible, memories are prone to error, they are suspectable to influence and leading, repetition, pressure, threats, reward and praise, children’s accounts are susceptible to contamination by others or by bias or preconceived ideas on the part of the questioner, and it is possible to induce false memories in children.[16]The case of AS v TH (False Allegations of Abuse) [2016] EWHC 532 (Fam) sets out the following principles:a. Where the evidence of a child stands only as hearsay, the court weighing up that evidence has to take into account the fact that it was not subject to cross-examination (§24).b. The court must not evaluate and assess the available evidence in separate compartments. Rather, regard must be had to the relevance of each piece of evidence to other evidence and to exercise an overview of the totality of the evidence (§26).c. There is no room for a finding that something might have happened. Either it happened or it did not. However, a failure to find a fact proved does not, without more, amount to a finding that it is false (§27).d. In principle the approach to fact finding in private proceedings ought to be the same as care proceedings. However, in private proceedings allegations are not being made by the more neutral and expert local authority but by a parent who is seeking to gain an advantage in a battle against the other parent. This increases the risk of misinterpretation, exaggeration and downright fabrication (§28).e. Care must be taken not to focus on statements made by the child at the expense of other evidence. This is particularly important if the child’s primary care taker is unreliable (§29).f. The court should adopt a two-stage process to allegations of sexual abuse. First, is there evidence of sexual abuse? If so, is there evidence of the identity of the perpetrator? (i.e. the alleger must prove, on the balance of probabilities, that the child has been sexually abused and that his father is the perpetrator of that abuse).g. Any failings to follow interviewing guidelines does not compel the court to disregard evidence obtained during any such interview but may affect the weight to be attached (§52).[17]Finally, it is important to recognise that where I have not heard from the child and as such all the allegations made are hearsay. Again, MacDonald J in Re P summarised the law on this point:
“259. In family proceedings, evidence given in connection with the welfare of a child is admissible notwithstanding any rule relating to the law of hearsay (see the Children (Admissibility of Hearsay Evidence) Order 1993). The weight to be attached to a piece of hearsay evidence is a question for the court to decide (Re W (Fact Finding: Hearsay Evidence) [2014] 2 FLR 703). Within this context, a serious unsworn allegation may be accepted by the court provided it is evaluated against testimony on oath (Re H (Change of Care Plan) [1998] 1 FLR 193). It is very important to bear in mind at all times that the court is required to treat hearsay evidence anxiously and consider carefully the extent to which it can properly be relied upon (see R v B County Council ex parte P [1991] 1 WLR 221). 260. In this case, these principles are thrown into particularly sharp relief in circumstances where none of the children who have made allegations of sexual abuse have given oral evidence at this hearing and been cross-examined on behalf of those against whom they level those allegations. Mr Bagchi and Ms Bains, citing the American jurist John Henry Wigmore, who observed that “Cross-examination is the greatest legal engine ever invented for the discovery of truth”, remind the court that oral evidence given under cross-examination reflects the long-established common-law consensus that the best way of assessing the reliability of evidence is by confronting the witness (see Carmarthenshire County Council v Y & Others [2017] EWFC 36 at [8] per Mostyn J). Within this context, I remind myself that the Court of Appeal has made clear that where the evidence of a child stands only as hearsay, the court weighing up the evidence must consider the fact that it was not subject to cross-examination (Re W [2010] 1 FLR 1485). I make clear that I have done so. 261. In circumstances where, in this case, the allegations are comprised of hearsay evidence from children concerning (at least in respect of the children) events which are alleged to have occurred some years prior to the allegations being made, I also remind myself that a court considering the hearsay evidence of a child must consider not only what the child has said, but also the circumstances in which it was said (R v B County Council, ex parte P [1991] 1 FLR 470) and, again, that it has long been recognised that care must be taken not to focus attention on statements made by the child at the expense of other evidence (1997 Handbook of Best Practice in Children Act Cases).”

Analysis

[18]I will start by looking at the first allegation. The accounts given by both parties are actually very similar. Both accepted that there was a process of looking at bank accounts on the father’s phone. Both accepted that this led to a realisation on the mother’s part that he had run up very considerable debts. Both accepted that they ended up on the bed with the phone held by the mother who was lying on the phone holding it whilst lying face down on the bed. Both accepted this would necessitate the father reaching under her to retrieve his phone. The dispute is about the reason why the mother ended up in that position and where the father was positioned[19]I have no doubt the discovery of this information caused great distress to the mother. I also know a week earlier when a similar event occurred the mother slapped the father when sleeping and I have found she scratched him to the face and neck. I have no doubt she was angry and I have no doubt the last thing on her mind was returning the phone to him. She wished to see the phone, consider the details, potentially share those details with his mother and evidence his behaviour. As such it is likely she placed the phone in a position where he could not access it, as such his description of her jumping onto the bed is entirely logical. It is also clear that the father wanted to retrieve the phone and was intensely embarrassed. With the mother on the bed he could not simply reach round her for she would have twisted her body keeping the phone from him. I thus accept her testimony that he pinned her down with one arm allowing him to reach under her to retrieve his phone. It has an inherent logic based on the dynamic of the event as a whole. I know by her own admission that the mother was furious at the time.[20]At the time the parents were far more concerned about the discovery of the extent of the debt and thus seriousness of the addiction to pornography. This is why the mother does not refer to violence when talking to the police when they arrive. My finding is that the mother did not regard this act of pinning her down as one of violence. It clearly technically is, but when she informed the police that he had never been violent I find that was her genuine belief.[21]My finding is as follows: The relationship between the parties had a volatility to it. The mother is by far the more vocal and emotional character. The father often presents as almost not having emotions at all when confronted. During early 2022 the mother became aware of the existence and extent of the father’s addiction to pornography, and this led to angry confrontations started by her. She was willing to slap and scratch the father during those confrontations. In response to a confrontation the father used his arm and body weight to pin the mother to the bed to retrieve his phone. Both parties recognised there were problems in their relationship and embarked on counselling which led to the relationship stabilising and the care of X eventually coming close to being shared. As such this incident has little or no welfare impact on X at this point in time.[22]Turning to the allegation of sexual assault.[23]The circumstances in which the allegations are made. X was 3 years old when she made the allegation for the first time. I have viewed her ABE which took place when she was 4 years old. I have not been provided with any coherent evidence which suggests she had a history of lying or fantasising. The social worker reached the conclusion she had propensity to lie on very flimsy evidence. There is a very brief consideration of two boys having shown their ‘willies’ which X seems to quickly confirm was not to her. There is also a reference to ‘time out’ and this not being used. There is nothing from the parents or grandmothers which suggest X regularly lies and nothing at all which suggests she has lied over a matter of importance.[24]I also need to be mindful of the fact this allegation is brought in private proceedings where some advantage may be sought. This point is worth early evaluation. The mother was fully committed to this relationship at the point these allegations were made. She appeared to be desperate to salvage the relationship in the weeks after the allegation was made. She was on friendly terms with the PGM and relied upon her for support when issues arose with the father. The PGM spent time at the house with X and the mother, without the father on the day before the allegations were made. As such at the time the initial allegation was made there were no ‘crosswinds’ or hostile motivations which would have provided a motivation for the mother to suggest anything to X or indeed for X to subconsciously detect and then somehow use or manipulate by making these allegations. These allegations come from what was, at that time as far as the child was concerned a happy home. The evidence suggests that X remains fond of her father, it being asserted she was happy to see him at Christmas and to talk to him via Facetime.[25]The mother’s ability to persuade herself that the allegations were not true is strong evidence she was not motivated to misinterpret, exaggerate or fabricate these allegations at the time they were made. By September the position had changed with the relationship having ended but again the agreement of what was in effect shared care for June, July and August post the final breakdown of the relationship indicates that again the mother was not motivated to push false allegations or rehearse the issue. There is no evidence that anyone discussed this matter with X from 21 April until 26 September. I thus find that this is not a case where one parent is making malicious allegations to gain an advantage.[26]The legal nature of X’s evidence; X’s evidence is hearsay. She has not been cross-examined or challenged on her accounts. It is important that her evidence is treated with a degree of judicial ‘anxiety’. It is important that I do not elevate her testimony to a position of primacy it cannot bear. It is very important I focus on any discrepancies in X’s evidence to determine if they are indicative of a failure of memory or falsification. I am greatly aided by Ms Bull’s submissions on this point which I will consider below.[27]The process of reporting the evidence: It must be of note that X makes this allegation in some form or accepts she made the allegation on 6 occasions. Firstly, to the children. We have a good record of this process as the father does not challenge Y’s recollection of the discussions. Y’s ABE interview provides a report of this discussion X was asked if they could tell her mum to which she says ‘no’ but she says they can tell her grandmother. The father accepted that Y was probably telling the truth about what was said. It is significant that the children who heard the account did not treat this as a joke. They held discussions about whom X was prepared to allow them to tell this information to. They were sufficiently concerned to attempt to tell an adult almost immediately and when they are rebuffed to then make sure the adult was told at the first opportunity. Some six months later Y was able to give a full account; she did not attempt to deflect or reduce the impact of the account by suggesting some uncertainty or humour in the discussion.[28]The second account is given to her mother and MGM on 16 April. The account given by the MGM was that X said, “details omitted” and then pointed to the area of her vagina. Further details are provided including that it had happened twice, that it happened when her mummy was not there, and it happened in the bedroom. There are only two adult accounts of this discussion and both state that it was X who pointed to her vagina area not the mother pointing to that area. This discussion provided an opportunity for X to state that this was a joke or misunderstanding and it is significant that she makes the same allegation to two adults significant in her life. Again, the father did not challenge the MGM’srecollection save for suggesting that others were informed that the process of pointing was instigated rather than coming from the child.[29]As a result of this account the family meeting is held, and this is the derivation of the suggestion that the mother had asked questions in a leading manner making X suggestible to making more detailed allegations. I have ruled out the question of deliberate manipulation of X’s evidence at this point but there is a prospect of X being suggestible and case law guides me to consider children can be susceptible to influence and leading questions. Both the mother and the MGMare clear that the mother did not suggest anything. The PGM and the father stated the mother had said that she had pointed to her own body. Firstly, of course the PGM was not there when this initial discussion took place. Secondly, I have some concerns about the PGM’s evidence. She accepted that she had spent two hours in a room with the father and his counsel on the first morning of the hearing. She was adamant she played no part in any discussions and sat reading her book taking no notice of the client/counsel discussions. This is not credible. Where a grandmother faces the prospect of her son being found to have committed child abuse and she herself is to play a part by giving evidence she must have listened to discussions. These are the most stressful of proceedings and inevitably all parties will have discussed the events of Spring 2022 with each other. To deny having done so on oath was unwise and not believable. However, the most significant defect in the PGM’s evidence was her stated inability to recall specific events. An example of this is when she was asked when her son had moved from her home, she seemed aware that the answer might be important and appeared uncertain what answer to give, she stated she could not recall. She gave this answer to a number of questions to the point where I asked her if there was anything I needed to know about to assist me understand this lack of recollection. She indicated there was not. As such it is the vagueness of some of her answers which lead me to prefer the mother and the MGM’sclear evidence on the body indication point.[30]The third account is given to the mother and father. Under cross examination the father confirmed that X confirmed the allegation. He describes himself standing next to X. There is a dispute about whether X was asked why she had said this with the mother clear he did say this and the father denying this. It perhaps matters not, both parents at this point very much want the allegation not to be true. X then makes the “I was joking” comment. This discussion is ambiguous, and the explanation given must raise questions about the inconsistency of X’s account.[31]Here it is necessary to deal with the suggested first retraction captured by the undisclosed recording. The father asked his solicitors to request such a recording, and they did so in June 2023. He states that at the family home before they held discussions with X the mother showed him a video of X taken by the mother which appeared to have a retraction of the allegation. The mother denies such a video exists. I note there are several applications which could have been made to forensically examine the phone and they have not been made. I was asked to clarify this point. I was informed that the father relied on the police to carry out an investigation of phones. He was mistaken on this for they did not do so and I find this in no way undermines the finding that a failure on his part to actively seek out the alleged video was evidentially relevant. In determining whether such a recording exists I need to consider the joint call made on speaker phone to the NSPCC. At no point is it mentioned that a recording existed. In addition, the texts between the parties over the following days take place with the prospect that an arrest might occur at any stage. At no point in those texts does the father request a copy of this clip or refer to it. Significantly, he does visit the home and download the CCTV of the garden presumably to examine the interaction between the children. As such at an early stage he is collecting electronic evidence. It is totally illogical not to attempt to secure the one piece of evidence which would protect him from these allegations. The absence of any request for this recording lead me to find it never existed.[32]The fourth time the matter is discussed is when X confirms she made the allegation to the social worker (though she states she did not know why she made the allegation). It is noteworthy she does not say she lied or was joking but accepts that she did not know why she had said it. The methodology of this meeting is concerning. My conclusion is I should not place any weight on this meeting. There are no contemporaneous notes, it appears brief, informal, and ambiguous.[33]The fifth mention of this incident is in Autumn 2022. This itself has two parts, the discussion and then the recording. The circumstances of the discussion give rise to concerns over suggestibility. The mother raises the issue with X; it is also clear that she was in an emotional state. She accepted she was close to suicidal, accepted she was very upset by the events of the day and tearful. This discussion also takes place at about 10.30 at night well past X’s bedtime. These factors indicate to me that the risks of a child wanting to say something which the child now discerns is what the mother wanted to hear become more significant. Having found the circumstances of that conversation amount to a scenario where evidence cannot safely be relied upon, I thus find it difficult to place any useful weight on a recording which must have taken place even later at night when the mother was more distressed and X more tired.[34]The final and sixth repetition of the allegation is at ABE. The process of the ABE is not challenged though a number of questions are suggested to be leading. A qualified specialist interviewer met X on two occasions and then conducted an ABE in appropriate surroundings with questioning being age appropriate. The police regarded the interview as amounting to “a clear disclosure”. Again, it is noteworthy that X gives a full description of the events to a professional in a controlled surrounding. I share the father’s assessment that this interview was consistent and there was no evidence X was trying to give specific answers to please anyone.[35]If I discount accounts four and five for the various reasons set out above, I am left with three times when X makes the central allegation without any qualification and one account where she confirms she had made the allegation but stated she was joking. The accounts cover the period Spring to Autumn 2022.[36]The plausibility of the account: It is statistically unusual for parents to sexually abuse their children, but it does occur, as such the inherent probability of the truth does not assist. It might be considered unusual for an event to take place in the bedroom of the family home which appears to carry a high risk of detection. Here the father accepted he accessed pornography including paid for web cams both at work and at home. In a busy household this may be unusual and indicates a willingness to engage in behaviour with a significant element of risk. In terms of the mechanism described there is nothing inherently implausible about the allegation. It is physically possible given the lay out of the house. Indeed, Ms Rhodes highlights the presence of the mirror in the bedroom in a place where the child could see it. I will deal with the alleged position of child and father below but when a child is asked to demonstrate position with paper dolls it is unreasonable to expect forensic assurance given these dolls do not move in the same manner as human beings.[37]The consistency of the Account; I need to analyse whether the allegation has changed over time. (the history of the allegation repeated)[38]Inconsistencies: There are a number of suggested inconsistencies in the account which I need to forensically examine particularly in the context of hearsay evidence.a. At ABE there is a suggestion that the incident takes place in the ‘playroom’. Both parents accept the house does not have a room they call the playroom. On a number of occasions at ABE X makes clear the incident happens on mummy’s bed with the mirror. The sequence of questioning which leads to the use of the word playroom is ambiguous. It is very unclear whether the response “in the playroom” refers to playing or watching her ipad or indeed the allegation. The issue is not clarified and whilst this is thus certainly an ambiguity, I do not find it to be an inconsistency in the context of the questions put.b. In the ABE interview the interviewer uses a technique of encouraging X to draw features on flat cut out cardboard gingerbread figures. (Details omitted)c. X made it clear to the police that she was clothed at the time of the alleged incident. It was suggested there was some inconsistency or implausibility to her vagina being touched over clothes. I am afraid I cannot determine this issue. It is perfectly possible to sexually abuse a clothed child.d. It is clear that X has given different answers to questions about how often this happened. Stating ‘lots of times’ at ABE, twice when asked by the maternal grandmotherand saying ‘twice, three, four and five times’ during the 26 September recording. This is an inconsistency of note.e. When asked about who was present there is again some inconsistency with a suggestion at one point that her mother might have been collecting laundry before the incident and then a suggestion she was out or at work. the mother suggests at one point it may have taken place when she was on a hen weekend in the weeks before the allegations surfaced.[39]Examining the allegation as a whole, I am struck by the core allegation remaining constant over time. I do not discern a mutation which might demonstrate an untruth or embellishment of the allegation. I note the number of different people the allegation has been made to of different ages, roles and status. I have indicated that I am concerned about two of the retellings and I find it safer that I do not take evidence gathered by the social worker and to the mother in Autumn 2022 into account. I am satisfied the ABE process was largely sound and resulted in a clear repetition of the allegation. Inconsistencies do exist but this is in the context of a child of 3 and then 4 years of age describing something, and I have already identified ambiguous questioning on two occasions. In relation to the child being led, X very openly and clearly gives an initial account. It is in clarification that certain questions may provide guidance to the answer. Overall, I am not satisfied that the inconsistencies even at their highest undermine the fact a child has repeatedly made allegations of matters which should be beyond her knowledge. I need to consider how the wider pattern of evidence may throw greater light on this testimony and indeed may undermine this assessment. The Evidence of the Adults The maternal grandmother

The Evidence of the Adults

[40]The MGM’scentral testimony in relation to the initial hearing of the allegation from the children was not challenged. Her recollection of the discussion with X was challenged only in relation to the pointing to body parts. Under cross examination she was clear on this point reasserting it was X who pointed to her body, she did not use any words to described body parts and she said it had occurred twice.

Paternal grandmother

[41]The PGM was put on the backfoot by her position in relation to the pre-court discussions and her vagueness on a number of points lead me to not rely on her testimony in relation to the issue of X being led.

The mother

[42]Much of the mother’s written testimony was based on supporting the chronological narrative which I have found to be largely uncontroversial. She underwent forensic cross examination a number of important points emerged.a. She was very open about how difficult the events of early 2022 had been and how they had affected her. She accepted feeling suicidal, she accepted stabbing the kitchen surfaces with a knife and accepted she had slapped the father when he was asleep and being very distressed. She also accepted lots of scuffles occurred apparently accepting some equal involvement. I found these elements of her testimony to be heartfelt and painfully honest. She agreed with much of what was put to her as to the January situation including elements which placed her in a poor light.b. I have to determine whether she was lying to the court in relation to allegation a. This was an incident of heightened distress for both parties. I have preferred elements of the father’s physical description of what occurred for example the absence of direct push on the bed but accepted her contention she was pinned down. I do not find that either party’s description of this event amount to a lie but rather attempts by both to describe a brief stressful incident in which they both behaved badly. I do not thus find it necessary to consider the R v Lucas direction at this point.c. In terms of X’s description of the incidents, I find that the mother had become determined to defend her child’s testimony and under cross examination she was unwilling to accept inconsistencies. She became combative, asking Ms Bull questions and engaging in narratives to defend her daughter’s account. Some of these were unwise as indicted above the account was not entirely consistent.d. The mother readily accepted that she had come to believe X’s account must have been false. She accepted she relied on the assessment of the police and children’s services stating:
“I was under the assumption nothing had been confirmed, I can only believe what I have been told by X. I think it is unfathomable someone would do such a thing. So at the time I did not believe he would do such a thing.”
She accepted that she tried to be amicable in the Spring into the summer. e. When she perceived her ability to protect X was questioned, she responded at times unwisely. She circulated a schedule of contact by email on which showed X was with her father for four days in early summer. It is illogical that that was the first time she had seen her father. She would not accept that that arrangement began earlier which was clearly the case. She also raised the idea that the PGM was supervising X at all time with little evidence to support the proposition. The text exchanges show she was very conflicted at this time wanting the relationship to continue and I find she did not present an accurate picture about how quickly she came to accept the father had not abused X at the time. f. She was far more balanced by the conclusion of her evidence where the wording of her answers in re-examination revealed how conflicted she has been by these allegations:
“In the beginning I did not want to believe such an atrocious thing would happen. I believe listening to the father’s account and X’s account of her in his care that he has something he is trying to hide. She has been consistent he (details omitted). I think there is evidence to support what she said, I think given his history it is very likely he has done it.”
[43]My overall assessment of the mother’s evidence was that she has struggled with these allegations, and her present mode is to act in a way she believes protects her daughter by denying any inconsistencies in her daughter’s account. I note there was no real questioning as to motive or which suggested a malicious reasoning for her stance. As such the usefulness of her testimony is to establish a chronology and logic to the process by which this allegation has come to light. I do not find that her overprotectiveness of X’s testimony and her exaggeration of her protective impulses in late Spring and early Summer undermine that element of her testimony.

The father

[44]Again, much of the father’s evidence was in relation to the timeline and the sequencing of the allegation being made. Much of this has turned out not to be controversial. The most glaring discrepancy between the accounts was the existence or not of the suggested recording of the first retraction. I have made a decision on that predominantly based on contemporaneous documentary evidence. The father was clear the recording existed and logically I must find this to be a lie.[45]He faced the most difficult cross examination which initially focused on his addiction of pornography. By a slow process he eventually accepted the full extent of the problem which had existed for 10 years and involved him consuming pornography at home and at breaks at work. At one point he conceded “I felt I had to do it every time I could”.[46]I was provided with no expert evidence that accessing adult pornography has any correlation with child sexual abuse and I must be very careful not to make that link. However, what was extracted was the extent of the problem and the need on a regular basis to act in a secretive way both at home and at work. To his credit the father accepted both that it was a massive problem and that it amounted to a breach of trust in the relationship. The father was also open about just how difficult the January events were and described himself as devastated and crying.[47]In relation to the January allegation, he described a situation where he was not happy that the mother was scrolling through his phone and where she was on the bed with the phone underneath her. He accepts that he was able to retrieve the phone. I find that explanation totally compatible with the finding made above save of course he failed to acknowledge that the mother would be extremely unlikely to want to return the phone and as such some force would be required to get it.[48]The father was not at the conversation with X and her mother. As such he can only comment on the description of it given at the family meeting. I have already indicated that I have two clear accounts of the initial discussion by the mother and the MGMmaintained under cross examination as opposed to the account of the father when he would have been extremely stressed having just been accused of child abuse. I thus find that the mother did not lead the questioning with X.[49]The discussion on the next day with the father present is significant as this contains the clear statement “I was joking” made by X. There are two descriptions of this; The mother’s which involved the child sitting on her knee with the father being sat next to her. The father’s involved him standing next to the child. I find it matters not which description is correct, both give rise to a situation where a three-year-old is faced with questions from both parents. In those circumstances, the response “I was joking” allows her to end the questioning and may have in her mind allowed her to return to everyday life.[50]The father clearly attended a police interview voluntarily and made a clear denial of wrongdoing. There is nothing to suggest he was anything other than co-operative in the process.[51]Turning to the allegation, the father did appear anxious to suggest there was never any occasion he was alone in the bed with X apart from two occasions. He seemed to be trying to make the allegations impossible because of opportunity. I found this unconvincing as he accepted he had cared for X at times.[52]Again, he was put in a difficult position justifying X spending time in a stranger’s house late at night and sleeping in her bed. He accepted this was not appropriate but again I have nothing which would indicate this unwise action made sexual abuse more likely to have occurred.[53]When confronted with the allegation he accepted that the process described at ABE was not an experience that X would have had in any other scenario. However, he was clear that she must be lying.[54]The father was a difficult witness to evaluate. The evidence of the mother was that he could be emotionless at times, and he did indeed lack emotion when giving evidence. At no point did he appear distressed by the nature of the allegation or outraged because of it being made or with him having been put through this process.[55]In addition, this was not a case where I was provided with any real alternative explanations for the allegation being made. There was reference to X going through a phase of using the words ‘willy’ and ‘bum’. It is not for the father to prove his case, but I was not provided with any information which might explain why X has made up these allegations. I was not provided with the CCTV the father took from the house following the discussion between the children and I was not provided with the CCTV which would have covered the discussions between the parents and X.

Conclusion

[56]I have a central allegation which whilst it has inconsistencies retains a core thread of consistency. I have the absence of any explanation for the allegation being made. I have the absence of an acrimonious environment which might lead to a malicious allegation. I have the allegation repeated multiple times to different persons and maintained over a period of 6 months by a young child who everyone accepts has no similar experiences to draw from and embellish.[57]I have one central witness (the mother) whose testimony I have largely accepted on the key issues. I have a second central witness (the father) whose testimony I have found not to be truthful on two occasions. Most significant in relation to the ‘lost’ recording, but also in relation to the description of the initial repetition of the allegation to him.[58]I note the guidance in R v Lucas. The mother’s description of the events of early 2022 has not entirely been accepted but this was a moving event in a time of high stress, I found most of her evidence to be honest even when it stood against her most notably her concession that she struck the father when asleep and stabbed the kitchen surface with a knife.[59]I thus find on the evidence placed before me that it is more likely than not that X’s core testimony is true.[60]My finding is that on at least one occasion the allegation made by X as to sexual abuse is true (details omitted)[61]Having formally handed down this judgment I now order a Section 7 report. District Judge Webb 13 December 2023