T (Fact-Finding), Re [2024] EWFC 446 (B)

Case No SO23P00311

[2024] EWFC 446 (B)

IN THE FAMILY COURT

Date 22 July 2024

Sitting at Portsmouth

The Law Courts

Winston Churchill Avenue

Portsmouth

Before

HHJ LEVEY

Between

THE FATHERApplicant

Applicant FatherApplicant

THE MOTHERRespondent

THE CHILDRespondent

(BY HER CHILDREN’S GUARDIAN)Respondent

THE MATERNAL GRANDMOTHERRespondent

Third Respondent Maternal GrandmotherRespondent

THE FATHER Applicant Father- and –THE MOTHER First Respondent Mother

THE CHILD

(BY HER CHILDREN’S GUARDIAN)

Second Respondent Child

THE MATERNAL GRANDMOTHER

Third Respondent Maternal Grandmother

Ms Wilson, Counsel for Applicant Father

Mr Cholerton Counsel for Respondent Mother

Mr Wheaton Counsel for Third Respondent

Mr Hand Counsel for Child.

Hearing Hearing dates: 11, 12, 13 June and 5 July 2024

Approved Judgment

This judgment was handed down remotely at 10.30am on 22 July 2024 by circulation to the parties or their representatives by e-mail.

.............................

HHJ LEVEY

HHJ Levey :

[1]This hearing concerns T who is 2 years and 10 months old, having been born in September 2021. The principal issue before the court is whether T was sexually abused by the father, as the mother alleges, last September, when T was two.

[2]This hearing was listed for 3 days, from 11-13 June 2024. Unfortunately, as a result of a family emergency, I was not able to sit on the final day fixed for the hearing, and so the hearing concluded on 5 July 2024.

[3]I heard evidence from all three parties. There is a significant bundle of documents which I have read, including medical evidence from the treating clinicians to which I shall refer when considering the evidence. Permission was not given for expert medical evidence to be relied upon and no application for reliance on such evidence was made by any party. There were a number of video recordings in evidence, which I watched as asked by the parties. This includes footage from a video doorbell taken on 26 September 2023. I also listened to recordings of the 999 calls made by the grandmother and involving the mother on the same day. There is a transcript of the father’s interview with the police. Given T’s age there was no ABE interview.

The Allegations

[4]The father alleges i) that the mother and/or the grandmother inserted a “pen lid” (the plastic top of a ball point pen) into T’s rectum in order to frame the father as the perpetrator of sexual abuse with the aim of blocking the father’s contact and relationship) with T. ii) that in June 2023 the grandmother threatened to take him to court if he pursued contact with T iii) the mother has persistently made excuses both in an out of court as to why he should not have contact with T and that he is not capable of looking after her. iv) The mother has made clear to professionals, including the court, the police, the local authority and the hospital that she does not want the father to have contact with T.

[5]In response, the mother alleges: i) That on Tuesday 26 September 2023 whilst the applicant had his first unsupervised contact with T the applicant sexually assaulted T by inserting a black pen lid into her rectum during the said unsupervised contact session.

History

[6]T is the child of the mother and the father after a brief relationship at the end of 2020. They lived for a short time at the grandmother’s address, but the relationship did not work out and the father left, I believe, before he knew the mother was pregnant. In fact, the mother did not tell the father that she was pregnant until 5 months had elapsed.

[7]The mother and the grandmother have aways lived together. The mother has another child living with her, J, from a previous relationship. I am told that J does not see his father although I do not know the reasons for this.

[8]The mother and grandmother were dismissive of the father’s parenting ability, telling me and the police that they thought he was incapable of looking after a child. Contact was organised between the parents, and seemed to be very ad hoc, without regular arrangements being in place. The mother seemed to me to be very much in control of the contact arrangements and told the father what they should be. I had the impression that the father was rather cowed in the presence of the mother and did not want to contradict or upset her.

[9]Contact between the father and T was required to be supervised either by the mother or grandmother. In 2023, the mother restricted the father’s contact further, and it reduced in length and seemed to be confined to times convenient to the mother, so sometimes when T was asleep in the car or while waiting for the mother or grandmother in the hairdressers.

[10]The father sought legal advice and instructed his solicitors to write to the mother about contact. There was some correspondence in response to which the mother made her opposition to contact clear. She told me that she reacted badly to the correspondence and then to the commencement of proceedings, to the extent that she went to see the father twice about it. She said in evidence that she thought that contact should have been able to be resolved easily without the need to go to court, although I had the impression that she really meant “on her terms”.

[11]Although I am not asked by the mother to make findings about the father’s behaviour towards her, it is her case that he behaved in a harassing manner towards her.

[12]The father said that when he spoke to the grandmother about contact on 21 June 2023, she threatened to take him to court. There seemed to be a denial about this from the grandmother, although it was difficult to see (as Mr Wheaton said to the father in cross examination) what exactly the threat was. In the event the father started this application in July 2023. Whatever the mother says now about her wish to discuss contact, it does appear that correspondence was only generating more correspondence and there seemed to be little alternative.

[13]At the FHDRA on 28 August, the Cafcass safeguarding letter had not been received by the court. It was a credit to the parties, however, that they were able to reach an agreement for interim contact. They agreed that there were no safeguarding issues, although unsupervised contact was to await the safeguarding letter. Contact was agreed to be in the community for three weeks with the mother present, then in week four at the paternal grandparents’ home, where the father lived, again with the mother present. Finally in week five, on three consecutive days starting 25 September, from 12.00midday until 2.00pm at the father’s home unsupervised. The mother insisted that no other family members should be present.

[14]The safeguarding letter from Cafcass confirmed that there were no safeguarding concerns that would prevent contact, and accordingly the contact went ahead as agreed.

[15]What then happened on 26 September is as follows. T went to the father’s home, having been taken there by the mother. The mother had changed her nappy just before she went. She supplied spare nappies in case T needed to be changed.

[16]The father’s account of contact is that it went well. There are a number of photographs and videos of T taken at a number of different times over the course of the two hours, showing her playing with the father, in her bed with the father reading to her. All show her to be (as far as one can see from a photograph or video) happy and contented, even though she was not used to being there without her mother or grandmother. At the end of the time, the mother came to collect her, and I saw Ring doorbell video footage which showed the mother coming to the door, collecting T, taking her to the car, and then eventually the father drove them both home and dropped them off. The video shows T walking outside, on the face of it quite happily, and being picked up, again without response. The mother said that T was reluctant to get into her car seat and got out of her seat and went into the front of the car, so had to be put back in her seat again, also that she cried for a period of time. This is not covered by the video footage, although there is a picture of T in her car seat which seems to show her quite happily sitting there. Both parents accepted that she was generally reluctant to get into her car seat.

[17]On arrival home, the mother and/or the grandmother did not detect anything out of the ordinary. The mother needed to go and collect J from school, and so she went off to pick him up. While she was out, the grandmother changed T’s nappy. She said that she was surprised to find that the nappy was on back to front and was ripped slightly. She said that when T lay down on the changing mat she started to scream. She said that she saw something black coming out of T’s anus. She called the mother, who came home, quickly.

[18]The mother told the grandmother to call 999, for the police and an ambulance. The grandmother was insistent with the call handler that the police should attend first, placing priority on that rather than an ambulance attending. She made clear to the call handler that sexual abuse had taken place at the hands of the father.

[19]The mother is heard in the background of the call saying, “maybe she swallowed something”.

[20]The ambulance arrived and T was taken to A and E at Southampton. There she was seen by Dr R – paediatrician. Dr R examined her, and noted the pen lid which T was able to dislodge by squatting and defecating in the corner of the room. For reasons which are not clear, the pen lid was given to the mother to take home, although it (or at least a lid) was given to the police. Fortunately, little or nothing turns on there being a chain of evidence. Dr R commented that she had seen items of at least this size being ingested by a child.

[21]T was discharged. There appeared to be no physical consequences. The local authority was informed and an investigation under s47 Children Act 1989 commenced. A child protection medical took place on 27 September. Dr D conducted the examination. She remarked that she thought it unlikely that the pen lid had been swallowed as there were no marks associated with chewing on the lid. She concluded: “16.1: “There is a high risk that sexual abuse has occurred by the insertion of a pen lid into T’s anus. Due to T’s normal developmental ability, she would have been unable to insert this herself. It is unlikely that the pen lid had been swallowed initially. T had a normal genital exam”.

[22]I did not hear evidence from Dr D. It is not clear from her report why she concludes that this was sexual abuse, given that she heard nothing from the father, and the only input that she had was from the mother. It might have been safer to for her to conclude that the pen lid was inserted by someone other than T, and to leave motivation to the court.

[23]The father knew nothing of this. As far as he knew he was due to have T for contact again, the following day. No one contacted him. He found the mother and T were not in when he came to the grandmother’s address. He tried to contact the mother. He did contact his solicitors. He sent a number of messages to the mother in which he tried to find out why contact had not taken place. Extraordinarily, there was criticism of him by the mother for sending these messages, which clearly took no account of the fact that she had not communicated anything to him about what was happening, and neither had anyone else.

[24]The father was arrested at work the following day. He was interviewed as part of the investigation. He denied inserting the pen lid into T’s anus. His mobile telephone was seized and interrogated: the police were satisfied that there were no images on his phone that suggested an interest in children. Items were recovered from his room, in particular, two plastic pens (as far as I can tell from the photographs, without lids), and some sex toys which he acknowledged in evidence were related to an interest in anal sex but were for his use.

[25]In February 2024, the police decided to take no action in relation to their investigation. The mother requested a review of that decision.

[26]The local authority did not appear to have considered at any point, seriously, whether either the mother or the grandmother was perpetrator of the insertion of the pen lid and relied completely on what either the mother or grandmother said.

[27]The mother’s litigation conduct has been an issue throughout these proceedings. It would appear that she has failed to comply with orders in relation to the filing of witness statements and other material, which has caused the father some difficulty in preparing his case. It is beyond the scope of this judgment to consider these matters in detail, but the mother is on notice that at a later stage in the proceedings the court is likely to be asked to consider them, not least from the perspective of costs.

The Law

[28]The law is well established, and I am grateful to Ms Wilson for her summary.

[29]In A Local Authority v M X Y to A, B, and C (By their Children's Guardian)

[2023] EWFC 211

: Poole J summarised the principles as follows:

“10. … I derive the following principles …:”

The burden of proof lies on the Local Authority that brings the proceedings and identifies the findings they invite the court to make. There is no obligation on a respondent to provide or prove an alternative explanation. The standard of proof is the balance of probabilities, Re B

[2008] UKHL 35

. If the standard is met, the fact is proved. If it is not met, the fact is not proved. There is no burden on a parent to produce an alternative explanation and where an alternative explanation for an injury or course of conduct is offered, its rejection by the court does not establish the applicant’s case. The inherent probability or improbability of an event should be weighed when deciding whether, on balance, the event occurred but regard to inherent probabilities does not mean that where a serious allegation is in issue, the standard of proof required is higher. Findings of fact must be based on evidence not suspicion or speculation - Lord Justice Munby in Re A (A child) (Fact Finding Hearing: Speculation)

[2011] EWCA Civ 12

. The court must take into account all the evidence and consider each piece of evidence in the context of all the other evidence. As Dame Elizabeth Butler-Sloss, President observed in Re T

[2004] EWCA Civ 558

[2004] 2 FLR 838

at paragraph 33:

“Evidence cannot be evaluated and assessed in separate compartments. A judge in these difficult cases must have regard to the relevance of each piece of evidence to the other evidence and to exercise an overview of the totality of the evidence in order to come to the conclusion of whether the case put forward by the Local Authority has been made out to the appropriate standard of proof.”

The opinions of medical experts need to be considered in the context of all the other evidence. In A County Council v KD & L

[2005] EWHC 144 (Fam)

at paragraphs 39 to 44, Mr

Justice Charles observed:

“It is important to remember that (1) the roles of the court and the expert are distinct and (2) it is the court that is in the position to weigh up the expert evidence against its findings on the other evidence. The judge must always remember that he or she is the person who makes the final decision.”

The evidence of the parents and any other carers is of the utmost importance. They must have the fullest opportunity to take part in the hearing and the court must form a clear assessment of their credibility and reliability. 11. It is not uncommon for witnesses in these cases to tell lies in the course of the investigation and the hearing. The court must be careful to bear in mind that a witness may lie for various reasons such as shame, misplaced loyalty, panic, fear, or distress and that the fact that the witness has lied about some matters does not mean that they have lied about everything. Lies are not necessarily evidence of guilt of the matters alleged: see R v Lucas

[1981] QB 720

. In the recent Court of Appeal judgment in A, B, and C (Children)

[2021] EWCA Civ 451

, Macur LJ advised at [57]:

“I venture to suggest that it would be good practice when the tribunal is invited to proceed on the basis, or itself determines, that such a direction is called for, to seek Counsel’s submissions to identify: (i) the deliberate lie(s) upon which they seek to rely; (ii) the significant issue to which it/ they relate(s), and (iii) on what basis it can be determined that the only explanation for the lie(s) is guilt. The principles of the direction will remain the same, but they must be tailored to the facts and circumstances of the witness before the court." Similar caution should be exercised in relation to a respondent giving unsatisfactory explanations or failing to give any explanation for the allegations made against them – the fact that they are unsatisfactory or missing may not be probative of the truth of the allegations or of the culpability of the respondent. 12. As observed by Dame Elizabeth Butler-Sloss President in Re U, Re B [2004] EWCA Civ 567: “The judge in care proceedings must never forget that today's medical certainty may be discarded by the next generation of experts or that scientific research may throw a light into corners that are at present dark”

. In Re R (Care Proceedings: Causation)

[2011] EWHC 1715

Fam Mr

Justice Hedley, developed this point further at paragraph 19:

“… there has to be factored into every case which concerns a discrete aetiology giving rise to significant harm a consideration as to whether the cause is unknown. That affects neither the burden nor the standard of proof. It is simply a factor to be taken into account in deciding whether the causation advanced by the one shouldering the burden of proof is established on the balance of probabilities.”

[30]Per King LJ in Re G-L-T (Children: Care Proceedings)

[2019] EWCA Civ 717

– failure to protect is not and should not be a bolt on to a finding but must be considered separately.

[31]In Re A, B and C (Fact finding: Gonorrhoea)

[2023] EWCA Civ 437

,1 Baker LJ summarised the principles when considering whether a perpetrator of such injury can be identified to the requisite standard (this is in the context of public law proceedings):

“41. S.31(2) does not require the court to identify a particular person as the perpetrator of significant harm before the threshold criteria are satisfied. What is required is for the local authority to prove on a balance of probabilities that the harm suffered was attributable to “the care given to the child … not being what it would be reasonable to expect a parent to give to [her]”

. Nevertheless, it is well established that a court should where possible endeavour to identify the perpetrator. The reasons were articulated by Wall LJ in Re K (Children)

[2004] EWCA Civ 1181

“55. As a general proposition we think that it is in the public interest for those who cause serious non-accidental injuries to children to be identified, wherever such identification is possible. It is paradigmatic of such cases that the perpetrator denies responsibility and that those close to or emotionally engaged with the perpetrator likewise deny any knowledge of how the injuries occurred. Any process, which encourages or facilitates frankness, is, accordingly, in our view to be welcomed in principle. 56. As a second background proposition, we are also of the view that it is in the public interest that children have the right, as they grow into adulthood, to know the truth about who injured them when they were children, and why. Children who are removed from their parents as a result of non-accidental injuries have in due course to come to terms with the fact that one or both of their parents injured them. This is a heavy burden for any child to bear. In principle, children need to know the truth if the truth can be ascertained.” 42. As a result, courts in care proceedings invariably endeavour to identify the perpetrator of injuries to a child. The suggestion expressed in another case that a court in care proceedings should “not strain to identify a perpetrator” has now been disavowed: Re A (Children) (Pool of Perpetrators) [2022] EWCA Civ 1348. 43. In order to make a finding that a particular person was the perpetrator of significant harm suffered by a child, the court must be satisfied on a balance of probabilities. But a series of cases has established that, where a finding as to the perpetrator cannot be made, the threshold is nevertheless crossed where there are a number of people who might have caused the harm and the local authority has satisfied the court that in relation to each of them there is a real possibility that they did: see Lancashire County Council v B [2000] UKHL 16, Re O and N (Minors) [2003] UKHL 18, North Yorkshire County Council v SA [2003] EWCA Civ 839, Re S-B (Children) [2009] UKSC 17, and Re B (Children: Uncertain Perpetrator) [2019] EWCA Civ 575. 44. The reason why the law allows the threshold to be crossed in these circumstances was explained by Lord Nicholls of Birkenhead in Re O and N at paragraph 27: “Quite simply, it would be grotesque if such a case had to proceed at the welfare stage on the footing that, because neither parent, considered individually, has been proved to be the perpetrator, therefore the child is not at risk from either of them. This would be grotesque because it would mean the court would proceed on the footing that neither parent represents a risk even though one or other of them was the perpetrator of the harm in question.” 45. The rationale was expressed by Peter Jackson LJ in Re B (Children: Uncertain Perpetrator) in these terms: “46. ….the concept of a pool of perpetrators seeks to strike a fair balance between the rights of the individual, including those of the child, and the importance of child protection. It is a means of satisfying the attributable threshold condition that only arises where the court is satisfied that there has been significant harm arising from (in shorthand) ill-treatment and where the only 'unknown' is which of a number of persons is responsible. So, to state the obvious, the concept of the pool does not arise at all in the normal run of cases where the relevant allegation can be proved to the civil standard against an individual or individuals in the normal way. Nor does it arise where only one person could possibly be responsible. In that event, the allegation is either proved or it is not. There is no room for a finding of fact on the basis of 'real possibility', still less on the basis of suspicion. There is no such thing as a pool of one. 47. It should also be emphasised that a decision to place a person within the pool of perpetrators is not a finding of fact in the conventional sense. As is made clear in Lancashire at [19], O and N at [27-28] and S-B at [43], the person is not a proven perpetrator but a possible perpetrator. That conclusion is then carried forward to the welfare stage, when the court will, as was said in S-B, 'consider the strength of the possibility' that the person was involved as part of the overall circumstances of the case.”

[32]46. At paragraph 49 of his judgment in Re B, Peter Jackson LJ set out the approach which should be followed:

“The court should first consider whether there is a ‘list’ of people who had the opportunity to cause the injury. It should then consider whether it can identify the actual perpetrator on the balance of probability … Only if it cannot identify the perpetrator to the civil standard of proof should it go on to ask in respect of those on the list: “Is there a likelihood or real possibility that A or B or C was the perpetrator or a perpetrator of the inflicted injuries?”

Only if there is should A or B or C be placed into the ‘pool’.” 48. It is unnecessary in this judgment to add to the extensive jurisprudence on uncertain perpetrators. I would, however, make three points which are directly relevant to the outcome of this appeal. 49. First, there are cases where the court considers first the issue whether the harm which the child has suffered was attributable to ill-treatment and only if it concludes that it was does it proceed to the second issue of the identity the perpetrator. There will, however, be cases where it is necessary to consider these issues not sequentially but simultaneously. In other words, it may be necessary to consider the identity of a possible perpetrator of ill-treatment alongside the question whether the harm which the child has suffered was attributable to ill-treatment at all. As Dame Elizabeth Butler-Sloss P observed in Re U, Re B (Serious Injuries: Standard of Proof)

[2004] EWCA Civ 567

, the court in care proceedings “invariably surveys a wide canvas” …. 50. Secondly, although the paradigm example of an uncertain perpetrator case is one in which several potential candidates are identified as the perpetrator, the case law demonstrates that the task in which the court is engaged is to determine whether there is a real possibility that a named person is “the” or “a” perpetrator. It is open to the court to conclude that there is a real possibility that one or more perpetrators abused a child either alone or together….

[33]Mr Hand drew my attention to the following passage from the judgment of Lord Nicholls in Re H and Others (Minors)

[1996] 1All ER 1

, “When assessing the probabilities 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….74. Although the result is much the same this does not mean that where a serious allegation is in issue the standard of proof required is higher. It means only that the inherent probability or improbability of an event it itself a matter to be taken in to account when weighing the probabilities and deciding whether, on balance, the event occurred. The more improbable the event, the stronger must be the evidence that it did occur before, on the balance of probability, its occurrence will be established”.

The Evidence

[34]I heard evidence from the mother, grandmother and the father. I had concluded at an earlier hearing, having heard submissions from the Children's Guardian to that effect, that medical evidence was unlikely to be helpful.

[35]The antipathy towards the father by the mother and the grandmother was very clear and obvious. The mother struck me as being rather more intelligent than the father, and I had the impression not only that he deferred to her during the relationship, but that she was more controlling in her approach to him and his contact. It was clear that he had not wanted the relationship to end, and that his feelings for her continued long after the relationship ended. I was told that their intimate relationship ended by the end of 2021, but in 2022 the father and the mother together with J and T went on days out. The father told me that he still regarded them as being in a relationship, but the mother did not. I was told that the father tried to hold hands with her, but she refused.

[36]That chimes as well with the assertion made by the mother that the father was using contact to spend time with her. It seemed to me that was probably right, but the father clearly did not see things in the same way.

[37]The father struck me as more of a “loner” – a less worldly man, who clung on to the idea of the relationship with the mother after it had ended. He sent a number of messages to the mother over the months after the relationship ended, and she complained as well that he had stalked her. As I have noted, she does not invite me to make a finding about this, as it is not in the schedule, but there is certainly sufficient evidence to suggest that at one time he was focussing on her to an unhealthy degree. She struck me as a much stronger character than him, and she was not inhibited or constrained by his contact with her as demonstrated by the fact that on receiving letters from his solicitor she went to see him twice, uninvited. Indeed, she was clearly unafraid of him, as she took J with her. Her approach to contact was, on any view, controlling and it was clear both from what she said and the history that until proceedings were issued, all arrangements had to be on her terms.

[38]There is no dispute by any party that T had a pen lid emerging from her anus. It is not contested that it was found by the grandmother when she changed T soon after T’s return from contact on 26 September. It seems that T returned home at approximately 2.15pm on the day and the mother went out to collect J almost immediately.

[39]Each of the parents makes allegations against the other, and on the father’s case, he now states his belief that the likely perpetrator was the grandmother. Each must prove their allegation to the civil standard, namely whether the allegation is true on the balance of probabilities.

[40]Both mother and grandmother went out of their way to criticise the father, even to the extent of ignoring a court order which restricted the scope of their statements Order HHJ Harvey 8 March 2024 10. The mother must by 4.00pm 29 March 2024 file and serve a witness statement limited to how contact between the child and the Father has progressed…. and 12. The maternal Grandmother shall file and serve a witness statement detailing the events of 26 September 2023. , both of which contain pages filled with their opinion about the father in a clear attempt to influence the view of the court against him. although compliance with court orders is not optional; but the mother was represented, and her solicitors should have known better.

[41]In evidence both continued in the same vein. The mother particularly was combative not reflective. She was inclined to go off at a tangent, to the extent that it was necessary for me to intervene. Neither gave the father any credit. It seemed to me that neither understood why he had made the application to the court.

[42]The mother even made a point of criticising the father for trying to contact her on 27 September 2023, the day after T was taken to hospital, even though she accepted that no one had contacted him to tell him that the contact, which had been arranged at court, was not happening.

[43]In the contact notes for the contact on 21 May 2024 (and again on 4 June 2024), T is recorded as having made a comment that “Daddy not a monster”. Asked about this, the mother said that she had not called the father a monster in front of T, and that the reference was to the book “the Gruffalo” which she and T were reading at the time. Yet, at the conclusion of her evidence, while distressed, the mother called the father a monster in court. I do not accept her explanation that T was quoting from or referring to a story that she was reading and do find that it is likely that the mother has described the father as a monster either to T or at least where T was able to hear.

[44]There were other instances where it seemed to me that the mother had strayed outside of the facts as she remembered them, to how she wished they had been. For example, she told me that the grandmother has no black pens in her household, only blue pens (this in response to questions exploring whether the pen top might have been swallowed), and that in any event all pen tops are thrown away. I found this unlikely. She said that T was supervised at all times, but T had been taken to hospital on three occasions following accidents where she had not been closely supervised – even on the mother’s account. The grandmother was clear that T was not supervised at all times but was sometimes left to her own devices watching television.

[45]On the morning that contact took place (26 September 2023), it would appear that the mother was waiting for the Cafcass safeguarding letter to arrive before agreeing that contact might take place. She spoke to her solicitor at 11.19am (per her first statement of 23 November 2023) and stated in her statement that in a fifteen-minute conversation she told her solicitor that T was ready to go to contact and said in her statement that she then changed T before going out. She accepted that she had been unhappy at the contents of the safeguarding letter. In her oral evidence she said that she had changed T before speaking to her solicitor and said that her statement should not be read as saying otherwise: which it clearly does. With reference to the grandmother saying that the nappy was on back to front she did not accept that she could have put the nappy on back to front.

[46]There was no other evidence to support the grandmother’s evidence that the nappy had been on back to front. Similarly, there was no other evidence in relation to the father’s assertion that he had not changed T’s nappy but had simply checked it – except that none of the spare nappies that the mother sent with T had been used.

[47]The photographs and videos of T taken during the time that she spent with father appear to show a little girl who was relaxed and happy. I accept of course that photographs, rather than video, can be cherry picked to show what the taker wishes to show, but the videos taken that day are also clear. There were certainly gaps between the times at which the various videos were taken, and Mr Cholerton submitted that there was sufficient time for T to have been sexually abused by the father between videos. That is right, of course. There were comments made by the mother that the times of the photographs or videos might have been manipulated, but there was no evidence before the court that would enable me to make such a finding.

[48]The last video recording was a lengthy video from a video door bell, which shows the mother coming to the front door to take T home. It is possible to hear sound from inside the house as well as outside. During that recording there is nothing that suggests anything amiss. T seems to be a happy child, who is at various times allowed to walk or is picked up without any issue. It was suggested that I should conduct a form of forensic analysis as to how T was picked up or carried – I do not think this is at all necessary. I saw nothing to suggest anything out of the ordinary.

[49]It was common ground that T did not like to be put into her car seat. I was told that on 26 September she was put in her car seat and got out and into the front of the car. She grizzled a little. There is a photo of her in the car. She looks fine. The mother told the police that she cried for 3 minutes on getting in to the car. She can be heard to cry for about 30 seconds, but nothing near to 3 minutes. The father had volunteered to drive them home. He did not have to do this.

[50]The mother told the police that on returning home, T ran up to the grandmother shouting “Nan, Nan!”. There was no suggestion of anything being out of the ordinary. This is confirmed by the fact that the mother then left T with the grandmother while she went to pick up J from school.

[51]Only the grandmother was present when she changed T, after the mother had left. She said that the nappy was on back to front, and slightly ripped. The nappy was not kept, although photographs were taken, but the nappy is not in view. There is no evidence to confirm what the grandmother says about this other than what she said.

[52]The grandmother telephoned the mother first, when she said that she saw the plastic sticking out of T’s anus, and then she called the emergency services. Curiously, she was insistent on calling the police rather than the ambulance, even though this was clearly a medical issue. The call handlers clearly thought that this was unusual as each asked her why she wanted the police rather than an ambulance. Her reply was to the effect that it was something to do with the court proceedings. She does sound genuinely distressed in the call (which I have listened to). She does not identify the item emerging from T’s anus, although describes it as being black plastic. She tells the call handler that the nappy was on back to front. She does say that there was no history of violence or aggression (and even though both mother and grandmother made comments to the court about harassment, the 999 operator was not told).

[53]At one point in the conversation, the mother can be heard clearly asking whether T might have swallowed the object. This was dismissed by the grandmother immediately. She said, “he stuck it up there”, which struck me as odd given that she said she did not know what it was at that point.

[54]As with the mother, the grandmother was also unable to give the father any credit. She immediately formed the view, it would seem, that this was evidence of sexual abuse. Neither she nor the mother would consider any other explanation. There was some evidence given by the father that the grandmother had threatened to see him in court and that this was in some way a threat. Mr Wheaton asked the father what the threat actually was, given that the father was threatening proceedings at that point. The father was not able to properly answer. I do not see that what was reported as a threat, in fact was a threat in the context that solicitors were already instructed. It is, however, a clear indication of the poor relationship between father and grandmother.

[55]I have already commented upon the clear antipathy shown by both the mother and the grandmother towards the father. In her submissions, Ms Wilson described the relationship between mother and grandmother as enmeshed, and that is certainly how it appears.

[56]The father’s evidence was rather more nuanced and reflective than that of the mother and grandmother. He did appear to be able to reflect on questions put to him and was prepared to adjust his position in response to those points. In my view he had been more committed to his relationship with the mother than she was with him. As I commented earlier, he seemed more naïve than she was, and his response to the end of the relationship does seem to have been problematic, in that he saw their days out in 2022/23 as being part of a relationship. It was not clear, though, why the mother went out with him on those days if the relationship had ended, as she said it had.

[57]When the police searched the father’s bedroom, they found a number of sex toys in his bedside table. He said that he had an interest in anal sex, and that he used the items on himself. These were sensitive questions, sensitively put to him by the advocates, but he answered clearly, and it seemed to me, openly. The police found that he had no interest in children. He did not accept that there was any interest in children. There is no evidence that he has any interest in children sexually, and I find that he had none.

[58]Ms Wilson put the central question in this case directly to the mother and grandmother as follows: this is a man who had engaged solicitors in order to get more contact. He had started proceedings to that end. He had negotiated a position at court which would lead to unsupervised contact. The mother and grandmother were dismissive of his ability to look after his daughter. There had been a number of supervised sessions of contact before the first unsupervised session. For the father then to sexually abuse T by inserting a pen lid in her anus, and then leave it there, knowing that it would be found is highly unlikely.

[59]This is a case, as Mr Hand submitted where all of the possibilities are unlikely. The alternatives would appear to be as follows: that the pen lid was swallowed by T somewhere and it had just worked its way out by coincidence; or it was inserted by either mother or grandmother, or the father. It is of course open to the court to conclude that no party has discharged the burden of proof.

[60]The child protection medical by Dr D and Dr C concludes that it is unlikely that the pen lid was swallowed. In particular, the report notes a lack of evidence that it had been chewed at all. There was no evidence that T had choked at any time (and she was clearly a child who was taken to hospital if accidents happened) and so no evidence that the pen lid had been swallowed at some time. There was no evidence as to when it might have been swallowed, and the mother’s rather strange evidence about there being no black pens in the house and all the lids being thrown away, also points away from swallowing as the origin, if what she says is true. I note that Dr R regarded swallowing as a possibility. If it had been swallowed, there would need to be a coincidence for the pen lid to emerge immediately after the father’s first contact. I do regard the likelihood of the pen lid emerging immediately after the first contact, in the context of this case, as being highly unlikely.

[61]There was clear motivation for the mother and the grandmother to “frame” the father. I have noted the antipathy already. I noted that the mother wondered during the 999 call whether it might have been swallowed, and it struck me that this was a remark more likely to be made by an innocent person. She was also out of the house when the pen lid was first seen.

[62]The grandmother sounded genuinely distressed during the 999 call. On the other hand, she was the person who first saw the pen lid. She said that T had been as normal until she removed her leggings, and nothing had caused the mother concern before she went out. She did not identify this as a pen lid when asked by the 999 call handler. She said that the nappy was on back to front and was torn. There was no evidence of anything wrong up to the point that the grandmother changed T’s nappy.

[63]It was clear that the mother was disappointed that the safeguarding letter from Cafcass did not enable her to stop the contact. The grandmother knew that, because she said to the 999 operator that the mother “had to let her go”. Only the grandmother saw the nappy on back to front. It had been removed by the time the mother returned home, so no one else saw it. The father said that he had not removed the nappy and there is no evidence that he did. There was motivation for either mother or grandmother to do something to stop the father from having contact, in the form of their views about him. Previously contact had always been on the mother’s terms and the father had to take what he could get – which is why he went to solicitors. The mother and grandmother were being pushed into contact that they did not want.

[64]My findings follow. I have considered all of the evidence in reaching my conclusions and have not done so in a linear fashion, crossing options out in order to reach a conclusion. I must, however, set out my findings in an orderly way.

[65]Considering all the evidence, I am not satisfied that it is proved that the father inserted the pen lid into T’s anus. There is no evidence that she was in discomfort prior to her arrival home and her nappy change by the grandmother. For him to be so desperate to abuse T, that he did it the first opportunity that he had, and in such a casual manner, careless as to any abuse being discovered, is highly unlikely. There is no evidence of any sexual interest in children. I am not satisfied that the burden of proof has been discharged, in this regard, and the allegation is not proved.

[66]The father changed his case during his evidence and told me that he no longer believed that the mother had inserted the pen lid. I agree with him. She was not present when the pen lid was found and had gone out. She suggested that the lid might have been swallowed during the 999 call. I am not satisfied that the burden of proof has been discharged, and I find that the allegation is not proved.

[67]The medical evidence is to the effect that T could swallow the pen lid, but it is unlikely (possible rather than probable). Dr R was more strongly supportive of swallowing, although she only commented that she had seen children swallow similar objects. Dr D thought swallowing was not indicated by the lack of evidence of it having been chewed, as well as the general unlikeliness of it. Her view was that the pen lid was inserted (her conclusion that there was sexual abuse was clearly coloured by the highly partial and opinionated account given to her by the mother). For the pen lid to have been swallowed would also require a significant coincidence for the pen lid to emerge immediately after contact, which I find in the circumstances of this case is highly unlikely.

[68]I am persuaded on the balance of probabilities that the pen lid was inserted into T’s anus by her grandmother. She had the motivation, as set out above, and the opportunity when she changed T’s nappy. One can easily understand why she would be distressed when calling her daughter and the emergency services, having done something to her granddaughter that she would immediately have regretted. I am not able to find that the nappy was, as she said, back to front – there is no evidence that the father changed T’s nappy during contact.

[69]Those are my findings. This application will be listed for a hearing before HHJ Harvey when the parties have had an opportunity to consider this judgment and respond to it. Each should file a position statement and serve on the other parties not less than 48 hours before the hearing. HHJ Levey Portsmouth 22 July 2024