‘uncle daddy hurt my bottom’
‘14. Finally, I should say something about the notion of inherent probabilities. Lord Nicholls said, in the passage I have already quoted, that — “the court will have in mind as a factor, to whatever extent is appropriate in the particular case, that the more serious the allegation the less likely it is that the event occurred and, hence, the stronger should be the evidence before the court concludes that the allegation is established on the balance of probability.” 15. I wish to lay some stress upon the words I have italicised. Lord Nicholls was not laying down any rule of law. There is only one rule of law, namely that the occurrence of the fact in issue must be proved to have been more probable than not. Common sense, not law, requires that in deciding this question, regard should be had, to whatever extent appropriate, to inherent probabilities. If a child alleges sexual abuse by a parent, it is common sense to start with the assumption that most parents do not abuse their children. But this assumption may be swiftly dispelled by other compelling evidence of the relationship between parent and child or parent and other children. It would be absurd to suggest that the tribunal must in all cases assume that serious conduct is unlikely to have occurred. In many cases, the other evidence will show that it was all too likely. If, for example, it is clear that a child was assaulted by one or other of two people, it would make no sense to start one's reasoning by saying that assaulting children is a serious matter and therefore neither of them is likely to have done so. The fact is that one of them did and the question for the tribunal is simply whether it is more probable that one rather than the other was the perpetrator.’
‘72. As to the seriousness of the allegation, there is no logical or necessary connection between seriousness and probability. Some seriously harmful behaviour, such as murder, is sufficiently rare to be inherently improbable in most circumstances. Even then there are circumstances, such as a body with its throat cut and no weapon to hand, where it is not at all improbable. Other seriously harmful behaviour, such as alcohol or drug abuse, is regrettably all too common and not at all improbable. Nor are serious allegations made in a vacuum. Consider the famous example of the animal seen in Regent's Park. If it is seen outside the zoo on a stretch of greensward regularly used for walking dogs, then of course it is more likely to be a dog than a lion. If it is seen in the zoo next to the lions' enclosure when the door is open, then it may well be more likely to be a lion than a dog. 73. In the context of care proceedings, this point applies with particular force to the identification of the perpetrator. It may be unlikely that any person looking after a baby would take him by the wrist and swing him against the wall, causing multiple fractures and other injuries. But once the evidence is clear that that is indeed what has happened to the child, it ceases to be improbable. Someone looking after the child at the relevant time must have done it. The inherent improbability of the event has no relevance to deciding who that was. The simple balance of probabilities test should be applied.’
"that people lie for all sorts of reasons, including shame, humiliation, misplaced loyalty, panic, fear, distress, confusion and emotional pressure and the fact that somebody lies about one thing does not mean it actually did or did not happen and / or that they have lied about everything"
“The evidence of the parents and any other carers is of the utmost importance. It is essential that the court forms a clear assessment of their credibility and reliability. They must have the fullest opportunity to take part in the hearing and the court is likely to place considerable weight on the evidence and the impression it forms of them (see Re W and another (Non-accidental injury) [2003] FCR 346).”
“41. The court must, however, be mindful of the fallibility of memory and the pressures of giving evidence. The relative significance of oral and contemporaneous evidence will vary from case to case. What is important, as was highlighted in Kogan, is that the court assesses all the evidence in a manner suited to the case before it and does not inappropriately elevate one kind of evidence over another.”
“28. Of course in the present case, the issue concerned an alleged course of conduct spread across years. I do not accept that the Judge should have been driven by the dicta in the cases cited by the Appellants to exclude the impressions created by the manner in which B and C gave their evidence. In family cases at least, that would not only be unrealistic but, as I have said, may deprive a judge of valuable insights. There will be cases where the manner in which evidence is given about such personal matters will properly assume prominence. As Munby LJ said in Re A (A Child) (No. 2)[2011] EWCA Civ 12 said at [104] in a passage described by the Judge as of considerable assistance in the present case: "Any judge who has had to conduct a fact-finding hearing such as this is likely to have had experience of a witness - as here a woman deposing to serious domestic violence and grave sexual abuse - whose evidence, although shot through with unreliability as to details, with gross exaggeration and even with lies, is nonetheless compelling and convincing as to the central core… Yet through all the lies, as experience teaches, one may nonetheless be left with a powerful conviction that on the essentials the witness is telling the truth, perhaps because of the way in which she gives her evidence, perhaps because of a number of small points which, although trivial in themselves, nonetheless suddenly illuminate the underlying realities. Still further, demeanour is likely to be of real importance when the court is assessing the recorded interviews or live evidence of children. Here, it is not only entitled but expected to consider the child's demeanour as part of the process of assessing credibility, and the accumulated experience of listening to children's accounts sensitises the decision-maker to the many indicators of sound and unsound allegations. None of this will be news to specialist family judges and in future I would hope that in conventional family cases any submissions that unduly labour arguments based upon the dicta that I have been considering will receive appropriately short shrift. As to the fallibility of memory, the dangers are again familiar to working judges, as are the problems of suggestibility in children”
“It is important to remember i) that the roles of the court and expert are distinct and ii) that it is the court that is in the position to weigh the expert evidence against the findings of the other evidence. The judge must always remember that he or she is the person who makes the final decision.”
“A factual decision must be based on all available materials, i.e. Be judged in context and not just upon medical or scientific materials, no matter how cogent they may in isolation seem to be.”
“This is not the occasion for any further general comment about the ABE Guidance. This Court has considered appeals based on failures to comply with the Guidance on a number of occasions in recent years, most recently in Re JB, supra. For present purposes, the key point is that made by MacDonald J in Re P, endorsed in Re JB, and recited above. Significant departures from the Guidance are likely to result in reduced, and in extreme cases no, weight being attached to the interview. It is for the judge to consider the interviews, and the extent to which they comply with or depart from Guidance, in the context of all the other evidence. The approach of the appellate court to this exercise is no different from every other appeal against findings of fact. The assessment of evidence, and the apportionment of weight to be attached to each piece of evidence, are matters for the judge at first instance. An appeal court will only interfere with findings of fact by trial judges where there is a very clear justification for doing so.”
‘Before turning to the foundational legal principles that govern the court's determination, it is important to articulate the following matters, in the context of which the legal principles that follow must be applied. I have borne carefully in mind these matters when evaluating the evidence before the court: i) Cases of alleged sexual abuse, and of alleged sexual abuse involving the number and extent of the allegations seen here, are highly emotive and can and do give rise to strong feelings and robustly expressed views and opinions. Notwithstanding the emotive subject matter however, the task of this court is to take an entirely dispassionate approach to the process of determining whether on the relevant and admissible evidence available to the court the facts alleged by the local authority are established on the balance of probability (see Re A (A Child) (Vulnerable Witness: Fact Finding) at [77]). ii) Within this context, and where the court is, at this stage of the proceedings, concerned with the dispassionate determination of issues of fact, the court must resist the siren call of what has been termed the "the child protection imperative" (see Oldham DC v GW and PW[2007] 2 FLR 597 at [97]). The need for caution in this regard in the context of cases of alleged sexual abuse was articulated eloquently by Hughes LJ (as he then was) in Re B (Allegation of Sexual Abuse: Child's Evidence)[2006] 2 FLR 1071 at [43] when he observed that: "…the fact that one is in a family case sailing under the comforting colours of child protection is not a reason to afford to unsatisfactory evidence a weight greater than it can properly bear. That is in nobody's interests, least of all the child's." The fact that the allegations with which this court is concerned relate to alleged sexual abuse of children is not a reason to relax the forensic rigor the court brings to bear when deciding disputed issues of fact, nor the rules of evidence that apply to that exercise. iii) Finally, a decision by the court to make no findings, or only some of the findings sought by the local authority does not constitute a 'failed' or 'unsuccessful' outcome. As Baroness Hale observed in Re S-B[2010] 1 FLR 1161 at [19]: "We should no more expect every case which a local authority brings to court to result in an order than we should expect every prosecution brought by the CPS to result in a conviction. The standard of proof may be different, but the roles of the social workers and the prosecutors are similar. They bring to court those cases where there is a good case to answer. It is for the court to decide whether the case is made out. If every child protection case were to result in an order, it would mean either that local authorities were not bringing enough cases to court or that the courts were not subjecting those cases to a sufficiently rigorous scrutiny." That observation applies with equal force to these proceedings notwithstanding their unprecedented scale and cost to the public purse. If the quality of the evidence, or the absence thereof, demands it, the fact that a long and expensive hearing results in no or limited findings is as much a valid result as one in which all findings were found proved to the requisite standard.’
“In the absence of semen, blood, foreign objects or, in the case of a female child, pregnancy, medical evidence with respect to the physical signs of sexual abuse is almost never diagnostic, very often non-specific, ambiguous or equivocal and, on occasion, controversial. The position is complicated further by the fact that ‘normal’ in the context of the anal and genital anatomy of children is not a single, fixed point but rather a spectrum.”
“Detailed written recording of the examination, including the use of drawings is, in my judgment, essential. This is particularly so if an examination is being done in the context of a potential disagreement between clinicians and/or anticipated legal proceedings (criminal or family). The RCPCH Guidance states at para 9.5.3 ‘Document injuries in full. Draw body plan. Record any hymenal and anal signs and their location using a clock face notation. Record and document the examination positions. A permanent record (still photographs, video, CD or DVD) of the genital/anal findings must be obtained. These images may be obtained via a colposcope. Para 9.7.1 ‘If the images do not demonstrate the clinical findings the reason for this should be recorded in the notes’”
"Is there a likelihood or real possibility that A or B or C was the perpetrator or a perpetrator of the inflicted injuries?"
‘the current position of LCC is that it will rely on Dr R as the primary witness of fact of what could or could not be seen during the two examinations. LCC accepts that the interpretation of what was seen, times for healing and causation are the primary remit of Dr Teebay.’
‘it is difficult because many children say that they are sore, and they may indicate that they are uncomfortable in a generic way’
‘yes, I knew why she had been to the doctors’
‘I just gave her the space to do it if she wanted to’
‘Typically, less than 1% of non-offending adult males report a desire (wish to experience) sex with a child (age < 11 years: paedophilia) in the general population. The percentage of those expressing sexual interest in infants (age < 2 years: Nepiophilia) is lower. Nepiophilla is particularly unusual with less than 10 % of people diagnosed with paedophilia showing interest in infants, suggesting that Nepiophilia is a unique subcategory of Paedophilia’
‘uncle daddy hurt my [word unrecognised] bottom’
‘does not yet have the communication skills to talk about her experiences, as her skills are appropriate to the level expected of a 3-year-old’
‘oh dear I will be careful’ and Z continued ‘uncle daddy not careful, hurt me, I say waa waa waa. Auntie mummy said no no no’