A Child (Fact Finding - Allegation of Sexual Abuse), Re [2026] EWFC 177 (B)

[2026] EWFC 177 (B)

Case No ZW25C50511

IN THE FAMILY COURT AT WEST LONDON

West London Family Court

Gloucester House, 4 Duke Green Avenue,

Feltham, TW14 0LR

Date 3 July 2026

Before

HIS HONOUR JUDGE WILLANS

Between

THE LONDON BOROUGH OF MERTONApplicant

Janet Mitchell (instructed by SLLP) for Applicant

Trisan Hyatt (instructed by Duncan Lewis Solicitors) for first respondent

Melanie Nazarath (instructed by AK Gulati & Co) for second respondent

Nathan Alleyne-Brown (instructed by Atkins Hope Solicitors) for third respondent

Elpha LeCointe (instructed by Creighton & Partners Solicitors) for fourth and fifth respondents

Sandra Fisher (instructed by Craden Moore Solicitors) for first intervenor

The second intervenor acted as a litigant in person for in person

The third intervenor acted as a litigant in person for in person

Hearing Hearing dates: 15-17 June 2026

JUDGMENT

HHJ Willans:

[1]In this judgment I am asked(1) to decide whether the fourth respondent has been sexually abused. If I find she has been abused then I am asked

(2) to identify the perpetrator of this abuse or if I am unable to do so

(3) to decide which individuals fall into a pool of potential perpetrators. Finally

(4) I am asked to consider whether there has been a failure to protect the child from such harm.

[2]For the reasons given below I have determined the first question in the negative and as such I have not made the findings sought.

[3]The matters will now proceed to a welfare stage given there remain matters of threshold and welfare unresolved by this judgment.

Introduction

[4]I heard the evidence in this case over two days followed by submissions on day three. I heard from an expert in the case and then each of the respondent and intervenor parties. I have considered all of this evidence alongside the documents in the hearing bundle (which was supplemented by some limited documents in the course of the hearing) and the submissions made by counsel for each party. Whilst I may not refer to all the evidence I continue to keep it in mind.

[5]This was a pure fact-finding hearing. I was asked to answer the four questions highlighted in paragraph 1 above. The lay witnesses gave evidence in person whereas the expert gave evidence remotely.

[6]There remain additional threshold features which mean the proceedings will continue irrespective of whether the findings are made. Within this judgment I do not comment upon the additional matters which relate to neglect (save as to reference the fact they are alleged) or the existing assessment evidence. My focus is restricted to the fact-finding exercise alone.

[7]To avoid confusion I will use labels to identify each of the family members. I will refer to the first respondent as ‘the mother’; the second respondent as ‘the non-subject father’ (child not alleged to have been abused); the third respondent as ‘the subject father’ (allegedly abused child); the first intervenor as ‘the grandmother’; the second intervenor as ‘the auntie’, and the third intervenor as ‘the boyfriend’. I will refer to the child subject to the allegations as ‘the child’ and her sister as ‘the sister’. I intend no discourtesy by the use of these labels.

Positions

[8]The applicant asks me to make the findings sought. They struggle to identify an individual abuser and argue for a pool finding. They seek a failure to protect finding. The subject-father supports the applicant although he adds no additional evidence in support of the allegations. Each of the other parties deny any role in abusing the child and do not seek to pass blame to any of the others subject to the allegations. As such they deny the allegations in their entirety. The children’s guardian has probed the evidence but does not make a positive case either way.

The law

[9]I have been provided with a helpful agreed note of the law which I accept correctly states the principles applicable to this investigation. I reference key principles below. I leave the case references to the note.

[10]The primary principle of fact-finding is that the applicant (in this case) has the burden of proof in establishing the truth of the allegations. They will meet the threshold of proof if they establish an allegation to be more likely than not (the ordinary balance of probabilities). If they cross this threshold the allegation becomes a fact. If the threshold is not met the allegation is disregarded. The balance of probability test applies however serious is the allegation.

[11]The individuals facing the allegations in this case have no burden to disprove the allegations and no obligation to provide an explanation to counter the allegation. If an explanation is offered then it must be properly considered but the rejection of such an explanation would not mean the allegation is then proven. All evidence is important and must be considered. Particular regard must be given to the evidence of parents, or in this case those said to be responsible or potentially responsible. The Court must have regard to the wide canvas of evidence which may assist a Court in establishing the truth of an allegation. In Re H and R (Child Sexual Abuse: Standard of Proof)

[1995] UKHL 16

at 95 Lord Nicholls observed: I must now put this into perspective by noting, and emphasising, the width of the range of facts which may be relevant when the court is considering the threshold conditions. The range of facts which may properly be taken into account is infinite. Facts including the history of members of the family, the state of relationships within a family, proposed changes within the membership of a family, parental attitudes, and omissions which might not reasonably have been expected, just as much as Re X and Y (Inter Sibling Sexual Abuse Allegations) actual physical assaults. They include threats, and abnormal behaviour by a child, and unsatisfactory parental responses to complaints or allegations, and facts, which are minor or even trivial if considered in isolation, taken together may suffice to satisfy the court of the likelihood of future harm. The court will attach to all the relevant facts the appropriate weight when coming to an overall conclusion on the crucial issue.

[12]Evidence should not be considered in compartments. Instead the Court must have regard to each allegation and piece of evidence in its own right but should also reflect on how the evidence relates to and impacts on other parts of the evidential matrix. A conclusion with regard to one piece of the evidential puzzle may offer insight when examining another aspect of the evidential matrix.

[13]The Court can have regard to inherent probabilities but these must give way to the actual evidence and a Court must keep in mind the Court is often engaged in considering behaviour which is not commonplace but none the less is factually part of the canvas of the case before the Court. The Court acts on evidence which includes reasonable inferences to be drawn from the evidence. The Court should not act on mere suspicions or reports.

[14]Evidence from an expert is important evidence but the Court needs to keep in mind that the role of the expert is to advise what may have happened whereas the role of the Court is to decide what happened. Still when considering expert evidence whilst the Court keeps in mind that the basis on which expert evidence is founded can change over time, and whereas that which is established understanding today may be set aside tomorrow, the Court must if rejecting expert evidence provide a reasoned basis for doing so.

[15]In cases like this it may be suggested, indeed established, that a witness has lied to the Court. It is recognised that a finding as to lies is important but should not be sufficient alone to establish the matters in dispute. Individuals lie for many reasons and the Court must be alert to the potential for a witness to lie for reasons unrelated to the truth of the allegation. When considering this issue the Court must ask itself whether the lie is deliberate; whether it relates to a significant or material issue in the case; whether it is motivated by an intention to conceal guilt or whether in contrast there is another possible and ‘innocent’ explanation for the lie.

[16]The Court is entitled to have regard to the demeanour of a witness when giving evidence but must also keep in mind that demeanour may not always be a reliable indication of honesty. The Court will always be looking at issues of consistency (both internal and when related to other evidence).

[17]When considering the question of a failure to protect the Court must guard against this being treated as a ‘bolt-on’ finding. Findings relating to failure to protect are highly significant at a welfare stage and it is therefore important that a relationship between the abusive actions and a state of knowledge on the part of the individual said to have failed to protect is properly established.

[18]When considering the question of attribution of responsibility there is an obvious merit in being able to identify a perpetrator of abuse. However, this will not always be possible and a Court should not strain to identify an individual but should simply ask whether this can be established on the balance of probabilities. If an individual cannot be identified then the Court will proceed to consider whether a ‘pool’ finding can be made. In such a case where there are a number of people who might have caused the harm, it is for the local authority to show that in relation to each of them there is a real possibility that they did cause the harm.

[19]I finish by repeating guidance given by Macdonald J in Re P (Sexual Abuse: Finding of Fact Hearing)

[2019] EWFC 27

:(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 MBC 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.

Background

[20]I take the background facts as found within the initial SWET and associated position documents. I do not intend to recite the full background within this section. I will draw attention to relevant matters within the judgment below.

The allegations for determination

[21]The relevant threshold allegations are as follows: 2. [The child] has displayed sexualised behaviours towards herself, other children and adults which are not sensory or developmentally expected for her age. These behaviours are:a. On 18 September 2024, when aged 4, [the child] lifted her top to expose her chest and pulled down her trousers to expose her genitalia

b. On 8 November 2024, during a nappy change, [the child] spread her legs and pulled apart her genitalia and giggled

c. On 25 November 2024, when seeing the exposed penis of a peer in school, [the child] got close to his penis and placed both of her hands over her private area.

d. On 10 December 2024, [the child] lifted up her top and exposed her chest to a father of another child in the school and said ‘Hi Daddy’

e. On 13 February 2025, [the child] touched the genital area over clothing of a teacher in the school and then touched her own genital area over clothing saying ‘touching’

f. On 03 April 2025, [the child] ran towards men she has never seen or spoken to before in the school staff room, lifted her top and attempted to sit on one of their laps

g. On 29 April 2025, whilst changing for swimming, [the child] put her face close to the penises of two boys in her class. On 29 April 2025 [the child] lifted the dress of a female member of staff and attempted to lift the dress again more than once

h. On 17 June 2025 during a nappy change, [the child] asked a teacher to look at her genitalia, pushing them up off the changing mat, and then inserted her finger into her vagina. [the child] repeated putting her finger into her vagina despite being told to stop and required the teacher to move her hand away from her genitalia

i. On 15 July 2025 [the child] unzipped her dress and placed another child's hand on her bare chest and was moving his hand around, whilst giggling. [The child] then sat down and spread her legs and pointed to her vagina. Another child walked past and she grabbed his private area. During a nappy change [the child] was saying "winkie winkie" pointing to her privates and placing her hand over her mouth giggling

j. On 18 July 2025, during direct work with the allocated social worker, [the child] sought out the genital area of a male and female doll to touch and laugh. In September 2025, during a sensory session at school washing babies with dolls, [the child] was focussed on the male baby doll’s genitalia and said ‘tickling’ and ‘no touching, ouchie’

k. On 26 September 2025, during a nappy change, [the child] was trying to touch her vagina, saying ‘touching, touching, I like it’

l. On 15 October 2025, during time in the book corner, [the child] had a pillow over her face and one hand down inside the front of her nappy, saying "touching, touching, I like it" pointing to her privates. When the teacher told [the child] to stop to wash her hands, [the child] started screaming, crying and taking off her clothes. She continued to say "touching"

m. On 17 October 2025, before a school trip, [the child] approached a female member of staff and twice tapped her genital area over clothing

n. During visits on 3 and 24 November 2025, [the child] touched her exposed vulval area whilst using the potty whilst staring at the social worker and smiling

o. On 5 November 2025, [the child] pulled down her trousers and exposed and pointed to her genitalia to a member of teaching staff in school

p. On 7 November 2025 [the child] tried to touch another child’s genitalia and became upset when redirected by a member of teaching staff, saying ‘no, looking’

q. Whilst with the mother, [the child] has repeatedly touched her genitalia and has touched the genitalia of a cousin she lives with 3. [The child]’s sexualised behaviours are a response to being sexually abused a. Being touched sexually on her body and genitalia; and/or b. Seeing sexual activity or being exposed to pornographic material 4. There is a real possibility that the person who has abused [the child] is a person she lives with. These are: a. The mother b. The [non-subject father] c. The [grandmother] d. The [auntie] e. [The boyfriend] 5. If [the mother] has not abused or exposed [the child] to sexual activity, she has not protected [the child] from that abuse and [the sister] from the risk of abuse by: a. Not acknowledging the behaviour that [the child] has displayed is sexualised and denying it happens in the home b. Arranging for [the child] and [the sister] to stay at the home of the grandmother despite having concerns about the boyfriend in the home c. Not complying with advice that [the child] or [the sister] should not stay overnight at the [grandmother’s] home d. Not complying with advice against house guests staying overnight at the home e. Not ensuring [the child] or [the sister] are supervised when with other people.

[6][The sister] was likely to suffer significant harm through sexual abuse by:a. Being exposed to the person who has abused [the child]; or

b. seeing [the child] behave sexually towards others.

The proceedings

[22]A detailed account of the proceedings can be found in section B of the hearing bundle. I note the key procedural points: · The proceedings commenced on 15 December 2025 and were allocated to District Judge tier · On 17 December 2025 an interim care order was made with regards to both children. They have remained together in foster care throughout the proceedings · At that hearing the existing private law proceedings between the mother and subject-child father were stayed · The case came before me for the first time on 9 January 2026 and has remained listed before me since. At that hearing the applicant was seeking for there to be an assessment of ability to protect against sexual risk. I questioned as to how that could effectively proceed whilst there remained a dispute as to whether there had in fact been any sexual abuse. I directed full assessments, final evidence and an IRH. At that point the applicant was not clear as to whether it would be seeking the findings now before me and I directed further consideration of the threshold findings sought · Following a delayed child medical on 19 January 2026 the applicant sought further time to refine its case. By a C2 dated 17 February 2026 the applicant made clear it would be pursuing the issues now before the Court. In the light of its position I listed a case management hearing · On 20 March 2026 I joined the intervenors and fixed both a PTR and this fact-finding hearing. In that order I invited the parties to raise further questions of the expert but noted ‘as a minimum…she must be requested to provide the research which she relies upon in her report to support her conclusions that [the child] has likely been sexually abused’ · On 15 May 2026 I conducted the PTR. Disappointingly the expert had not answered the questions posed. I refused a late application for mobile phone data extraction as being akin to a ‘fishing exercise’ with the additional risk of impacting on the fact-finding hearing timetable. I set a timetable for the fact-finding hearing.

An overview of the lay evidence

[23]Each of the lay witnesses were asked in terms as to whether they had abused the child or exposed her to sexual material or had witnessed or were aware of any other person doing so. Each denied any such behaviour. None of the witnesses sought to pass responsibility onto the shoulders of another albeit some limited points were made that permitted the applicant to at times focus its attention on particular individuals. An example of this was the suggestion that the boyfriend had joined the household at about the same time the behaviour started to be observed. In evidence no witness suggested this to be anything other than a coincidence.

[24]On the facts of the case the applicant had little evidential material beyond the reported behaviour patterns of the child and was unable to mount a direct positive case against any individual. It could however seek to show that individuals had access to the child and the opportunity to abuse should they have been minded doing so. Given the limited evidence each of the witnesses gave evidence for little more than an hour. Nonetheless there were areas of further examination and some limited features which were considered with additional care.

[25]The mother, auntie and grandmother each accepted in their evidence that they had extensive and significant sole care of the child. As such they implicitly, if not expressly accepted they had the opportunity to have abused the child if they had wished to do so.

[26]The position with regards to the boyfriend was different. There seemed a consensus that his role in the family home, which commenced at about the time that the behaviours were first noted, was highly limited. He spent most of his time when in the home with the auntie in their bedroom. He was working and leaving home late returning in the evening. No one suggested he ever had sole care of the child. Indeed I heard no evidence of him having any sustained real interaction with the child. There was one report, from the grandmother, that she had seen him returning the child to her cot during the night but no more than this. That piece of evidence had to be seen in the light of uncontested evidence of the child waking during the night and leaving her cot.

[27]The position with regards to the non-subject father was materially different. It was suggested on his behalf and agreed by the mother that he had only the most limited sole care of the child but at the same time it was accepted he co-parented both children with the mother during most if not all of the period in question. They shared a home together, although it seems he was not always living with the mother. There were significant periods when she and the child(ren) were staying at the grandmother’s home and it appeared he was not present during these periods. The evidence of the mother and non-subject father was that his role was most focused on the sister with the mother taking primary care and being involved in the intimate care needs of the children. Nonetheless if I have material doubts as to the evidence I have received in this regard it would place him much closer to the daily routine of the child.

[28]There is no suggestion of there being time when the subject father has opportunity to abuse the child. This principally flows from the pre-existing private law dispute between the child’s parents which meant that contact between the child and her father either did not happen or occurred within a supervised setting.

[29]The main factual dispute within the family was as to whether the child had exhibited any of the reported behaviours within the home environment. Both the mother and grandmother had reported no such behaviour and indeed the mother’s position was that much of the behaviour was only shared later in the chronology. There was agreement of some associated behaviour with the child putting her hand down into the rear of her nappy but this was explained in the context of a dirty nappy rather than anything of the nature described in the allegations. However, the auntie reported the child exhibiting such behaviours in the home with a report of the child attempting to touch her own child (‘the cousin’) who shared a bedroom with the child. She reported this was a reasonably regular event which had upset the cousin happening every few weeks over the space of a year or so. My note of the evidence was that this was attempted touching towards the genital area of the child (when clothed) rather than actual touching but little turns on the distinction. It is said to be significant the auntie reported informing both the mother and the grandmother of this behaviour. They both deny any such reports and the applicant argues the mother/grandmother have deliberately lied about this and that this is a lie told to distance them from the behaviour with only one explanation, that it is told to hide guilt.

[30]This evidence was challenged on behalf of the mother and grandmother and I was asked to note the relevant statement from the auntie did not include this suggestion. The response was that as a litigant in person she had not been confident as to what needed to be included and had been doing her best.

[31]A second dispute is linked to the auntie reporting the cousin would knock on her door at night complaining the child was out of bed and keeping him awake. She reported telling him to report this to the mother or grandmother. Both denied being approached by the cousin as a result. I note though that it was agreed the child would get out of bed in the early hours of the morning causing some obvious disruption. No-one suggested there was any behaviour of the form comprised within the allegations in these moments.

[32]The final factual point related to the installation of a camera in the child’s room which was focused upon the child’s cot. That this was installed is not in dispute. Both the mother and grandmother led this evidence. The rationale for the camera was either because a new unknown adult (the boyfriend) had entered the home and this was installed as a safety measure and/or that it was used to monitor the child to safeguard her against attempting to access the window in her room. There was no suggestion the device had recorded anything untoward but there was questioning as to the real reason for the installation with the implicit suggestion it may have been installed as a result of or for some reason associated with the reported behaviours. It was contended this could have only been done due to a material concern as to some risk to the child of sexual abuse in some form. As such, and as with the report of the auntie, it is contended this supports the applicant’s case.

[33]Linked to the above points was a level of questioning as to whether it was plausible that the reported behaviours occurred entirely out of the home. The suggestion was put that this was not likely to be the case and that the denial of the same (including the denial of the reports of the auntie as above) was to shift focus from what was or may have been taking place in the home.

The expert evidence

[34]The expert in this case is a consultant counselling psychologist with a therapeutic practice (‘the expert’). She entered this case in pre-proceedings at the instigation of the applicant to provide a psychological perspective on the family functioning. It is the conclusions she has drawn as to the behaviour of the child which drive the allegations in this case.

[35]It is a matter of record that at the time of her initial report the concerns whilst including these behaviours were, it seems to me, viewed within the context of a broader neglectful home environment (see summary above). This may explain why the applicant did not instruct an individual with a more focused practice concerning cases in which sexual abuse arose as a concern.

[36]Nonetheless the expert was asked within the questions posed to her to provide comment on what was described as the ‘hypothesised sexual harm’. In regard to this she concluded [§9.31-2]: Please refer to body of report whereby I clearly say that the sexualised behaviours are not something that I would expect to see in children who were never exposed to sexual abuse...[T]hus, whilst it is impossible to say conclusively, it is likely that [the child] suffered sexual abuse. Please see research evidence cited within the body of the report that supports this hypothesis. At §7.7 the expert opines it would be unusual to see these behaviours without there having been sexual abuse.

[37]On my reading of the report the key research referenced with regards to the question of abuse is Cascciatore, R., Korteniemi-Poikela, E., & Katiala, R. (2019). The steps of Sexuality- A Developmental, Emotion-Focused, Child-Centred Model of Sexual Development and Sexuality Education from Birth to Adulthood. International Journal of Sexual Health, 31(3), 319-338.

[38]In her report the expert makes clear that in expressing these opinions she is ‘agreeing with’ the views of un-named others [§2.3]. It appears this relates to the professionals within the school environment and/or the social workers with whom she met. This flows from §4.14: According to background information and conversations with head teacher and safeguard lead at primary school….and social worker…[the child] displayed sexualised behaviours… Indeed at §4.38 the behaviours are referred to by the social worker as being ‘sexualised’ when in conversation with the expert. The quote from the social worker is:

‘I am very worried…[T]he main thing I am really worried about is [the child]’s sexualised behaviours, I personally feel [the child] was sexually abused because of sexualised behaviours.’

Following this at §4.40 the expert ‘agreed’: …that this is very unusual and is likely to indicate experience of sexual abuse, but it is difficult to say how and by whom.

[39]The expert recognised the child had cognitive delay. During the hearing I was told she had global developmental delay. The expert noted research which notes the potential overlap between cognitive delay and trauma and the difficulty this posed in distinguishing as to whether behaviours identified arose out of trauma or consequent upon developmental matters.

[40]The expert confirmed her assessment of the child was based on observing her with school staff and with her mother and father, speaking with professionals and using evidence-based research regarding concerns raised by local authority [§5.11]. In her live evidence she reinforced her conclusions derived from these three areas:(1) Clinical experience;

(2) Reports from professionals and;

(3) Research.

[41]The expert was probed as to other possible explanations for the behaviours including by reference to the child’s developmental delay and also by reference to the suggestion that it may have derived from nappy rash soreness and irritation leading to scratching or other stimulation which was then continued due to sensory pleasure. These points had been raised within further questions to the expert put following the PTR. She responded that ‘neurodevelopmental delay and sensory needs cannot explain the behaviours outlined in the revised threshold section’ and that in her experience ‘neurodevelopment delay is expressed in limited communication skills, limited eye contact and overall cognitive difficulties.’

[42]In relation to the innocent stimulation point the expert responded: This is speculating, answering this question is outside of my expertise. I am unable to say if nappy rashes can lead to stimulating pleasurable feelings and then result in [the child] displaying sexualised behaviours.

[43]When asked whether her conclusions had changed and when asked to provide the research on which she relied on to reach a conclusion of sexual abuse she gave the following response: Please note I did not conclude (expert’s own emphasis) that [the child] was sexually abused. That means I have no way to say for certain if [the child] was sexually abused or not. My opinion is that sexualised behaviours at such young age are likely to suggest sexual abuse…My opinion is based on three factors:a. clinical practice

b. conversations with [the child]’s system such as school staff and social worker and

c. psychological research. However, I am clear in my report that this is not a factual comment, I have no way to tell if sexual abuse took place or not.

[44]The expert’s evidence was central to the applicant’s case and was the main focus of the hearing. The applicant had conceded without this it would not be able to establish the findings sought. The expert had consistently referenced being unable to be certain and it was explained to her that this was not the threshold set by the family court. When the balance of probability test was put to her she told me sexual abuse was more likely than not. She was clear the behaviour was concerning and referenced it as being sexualised. She was additionally concerned to hear it continued within the foster care environment now more than 6 months after removal.

[45]The expert was challenged as to her actual expertise to provide such guidance. She spoke of a period working in the NHS where she would be engaged with children who had been abused. She is currently engaged in counselling which to some extent includes patients with a history of such abuse. She accepts she has had no role clinically in diagnosing whether abuse has occurred and has no clinical medical training on which to rely. She talked in terms of 20-30 cases or experience over a 10-year period in the NHS although the exact details remained somewhat vague on probing.

[46]It is unclear to me why the expert was not also asked to reflect on the report from the Haven when answering the further questions. This is not a referenced item in the questions although it was available at the time having been produced on 26 January 2026 with the updating answers from the expert being dated 19 May 2026. The Haven is a specialist team dealing with cases involving reports of sexual abuse including abuse of children. In their report the specialist clinician concluded, when considering concern as to sexual abuse following observations of sexualised behaviour: [The child]…has displayed some concerning sexualised behaviours. It is, however, important to note that there are alternative possible explanations for these behaviours. It is possible that the behaviour reflects normal exploration of her body or that the documented nappy rashes resulted in an increased awareness and touching of her genitals and subsequent discovery of pleasurable feelings…[H]owever it is also possible that [the child] has experienced wither non-contact or contact sexual abuse.

Analysis

[47]I would start by expressing concern as to the usage of the word ‘sexualised’ when considering the concerning behaviours in this case. I consider the inclusion of this word ‘loads’ the sentence impermissibly pending the facts being found. I am concerned a clear analogy can be drawn with the usage of the word ‘disclosures’ when considering ‘allegations.’ There is clear guidance as to the impropriety of slipping into using the phrase disclosure because it implies the existence of the facts before they have been ascertained. After all one can only disclose what has actually happened whereas to allege something is not to make a statement as to the truth of the matter in dispute.

[48]I consider the addition of ‘sexualised’ to ‘behaviours’ in whatever format has a parallel difficulty. After all if it were established there had been no sexual abuse in this case then no-one would be describing the behaviour as ‘sexual’, no-one is or would be claiming the child was behaving sexually. The gaining of pleasure from stimulation in this context would be entirely sensory and would not justify or deserve the affix of being sexual. In my assessment by adding the word ‘sexualised’ one is presupposing a state of affairs before it has been established. In my assessment the approach of the Havens makes this clear. The unit references ‘concerning sexualised behaviours’ because this is the concern that has been raised before the unit proceed to caution there are other explanations for the behaviours (note not sexualised behaviours). I consider the dropping of the word in the latter part of the paragraph supports my view in this regard.

[49]The danger of the alternative approach is that it conditions the questioning and has the distinct risk of conditioning the responses. To be asked to comment on a disclosure is dangerous as it impliedly suggests to the responder that the event happened and as such may limit the ability to counter effectively. This is not so far from the tag questions which advocates are regularly encouraged to avoid because they supply a suggested answer and as such may lead to unreliable answers particularly from a vulnerable witness.

[50]I consider the risks are increased when one adds ‘sexualised’ to the comment. This by definition places the behaviour into a certain compartment of concerning behaviour. The result is that I have unsophisticated witnesses having to agree this is very concerning – as after all who could say sexualised behaviour on the part of a 6-year-old is not very concerning. But this closes off a more open and helpful investigation.

[51]I consider the loading of such behaviour with the notion of being ‘sexualised’ should be avoided and should instead be approached simply as ‘concerning behaviour’ until such time as the factual matrix is resolved. At that point it may justify the addition of the additional descriptor.

[52]I have considered the evidence as to the suggested reporting of the auntie to the mother and grandmother and have reached the conclusion it is more likely than not to be true. I found the auntie entirely plausible in this regard. She had nothing to gain in giving this evidence. It had no impact in distancing herself from the allegations and had a very clear ring of truth about it. Indeed on my assessment the auntie took no steps to distance herself from the obvious opportunity to abuse the child making clear she cared for the child alone for sustained periods. Furthermore, this very allegation is found within the evidence elsewhere and it seems to me highly likely this could only be the case if such a report had in fact been made. I accept the account as to why it was not contained within the auntie’s statement. That statement is in simple terms and appears to have solely addressed the points identified in the court’s direction without reflecting on ‘any other evidence that may be relevant’.

[53]Does this mean the mother and grandmother have lied? I want to be clear the report I find to have been made by the auntie will have had a level of vagueness to it in that it was about the child ‘trying to touch the cousin’. I accept the report would have contained the suggestion this was improper touching otherwise it would have made little sense in being reported and I would have expected the recipient to ask what was important about the children simply touching. So I accept the report would have implied impropriety but it would still have fallen short of something of real significance. For a child aged 6 with global developmental delay to act in an unbounded manner is far from unusual evidence for the Court to receive. For my part absent other information I would be surprised if it alone would generate any form of safeguarding report or would carry a high level of resonance for family members.

[54]Nonetheless I am satisfied the mother and grandmother were fixed with this knowledge during the period when the reports from school began to be shared. It is likely the mother had a greater level of understanding as to what was being shared as parent but it seems likely the reports were shared within the wider family and certainly with the grandmother. As such they would have been conscious this fitted with the school reports. This leads me to conclude they have not been as open with the professionals and the court as might be expected and in doing so appear to have distanced behaviour from the home.

[55]But I am far from persuaded this is materially significant to my analysis. I agree a reason for this distancing may be, as alleged by the applicant, an intention on the part of the party to distance themselves and/or the home from being a site of abuse. This suggestion proceeds on the basis the party is aware of abuse being perpetrated and so seeks to distance the associated behaviour from the place in which it was perpetrated to limit the investigation process. But on any reasonable review it is equally plausible that an innocent person fearing being pulled into such a profoundly impactful allegation might underplay what has happened in their close environment or claim it has never happened. Of course this runs the danger of being found to be dishonest with the consequent charges raised in this case. But any realistic assessing tribunal cannot overlook this potential. In this day and age to be alleged to abuse a child is perhaps the most serious allegation to be levelled at an individual. Many people will respond with absolute terror if such an allegation is levelled at them and it is entirely likely in seeking to exculpate themselves that they may act in this manner. When considering the Lucas analysis I have real doubts as to whether there is no other innocent explanation for the lies told. I consider there is an obvious alternative which is of an individual seeking to distance themselves from allegations of this sort.

[56]I am also unsure what to make of the camera evidence. I accept it was placed in situ and that this was done contemporaneously with the arrival of the boyfriend in the home. But there is no evidence to suggest it was warranted as a result of information known about him. Rather it appears to have been based on the simple fact that little was known about him. One of the challenges for the applicant was in relying on this evidence to suggest the mother/grandmother were seeking to safeguard against abuse whilst at the same time seeking to place each of them into a pool of abusers. Whilst of course these suggestions are not mutually inconsistent they do not sit together happily. My sense of the evidence was that this was a form of monitor not particularly different from that used in many homes. I have really struggled to find a sustainable evidential route map under which it was installed to evidence or protect against abuse understood to be happening. I do though accept (given my finding above) that part of the logic may have been to monitor whether the child was acting in the way she had been at school. I bear in mind the room was shared with a cousin and there were concerns about how she might interact with him. For the avoidance of doubt there is no suggestion the cousin is any way responsible for the concerning behaviours.

[57]The most important part of my analysis must be focused on the expert evidence and what it tells me. I have to say I am troubled when considering each of the component parts on which the expert bases her conclusions. I will deal with each in turn.

[58]I start with the research. I have been copied this by counsel. The expert referenced it in the general but not in specific terms. On proper consideration I cannot see how the research actually supports her conclusions. It first has to be understood the research is considering the ‘steps of sexuality’. It is not research which in any way seeks to identify or catalogue patterns of behaviour consequent on abuse.

[59]But even then it seems to contradict the very conclusions said to derive from it. Before setting out some empirical findings from peer research it makes the following observation: Despite the existence of theories of childhood sexuality as long as a century ago, prepubertal children were long regarded as asexual, and any sexual behaviour was assumed to be a sign of pathological sexualization, likely suggesting subjection to sexual abuse (Elkovitch et al., 2009), or even a sex offender in the making (Martin, 2014). The growing amount of empirical research, however, has documented a range of sexual behaviours in prepubertal children from early phases of development that are obviously normative and reflect positive development. The empirical evidence is then discussed and I note: More than a fifth of the children aged 2–5 were observed touching and stimulating their private parts in public and at home, touching mother’s breasts, and attempting to see other people undressing or naked….studied 2- to 6-year-old Swedish children’s sexual behaviours through maternal reports. In broad terms, sexual behaviours were common and increased during this age frame. The most commonly observed (>40%) behaviours were playing doctors’ games, touching their own genitals at home, looking at other children’s genitals during everyday routines (toilet, nappy changing), walking around naked at home, trying to watch others undressing, showing curiosity about the father’s penis, and touching their mother’s breasts. (my emphasis throughout)

[60]It is not for me to mark the research as to its quality of application but that is not the point. This is the research on which the expert relies and it does appear to me to be inconsistent with her views as to the unusual nature of the behaviours in question. I specifically asked the expert whether her assessment of the research included any research that specifically touched on the issue in this case, i.e. behaviours of this nature as evidence of abuse. The answer was no.

[61]I am troubled that I have a witness with limited experience in this field who has significantly relied upon research which(1) appears to be largely irrelevant to the issues under consideration, but

(2) on review appears to be in marked contradiction to the conclusions said to flow from it. I am left doubting the weight that can be placed on the conclusions thereafter reached.

[62]Turning to the second foundation for her conclusion the expert referenced the reports made. Of course this was part of the evidential base on which she was entitled to reach her conclusions but it was important she kept in mind her opinion had been sought on this issue as those engaged with the child were not able or qualified to determine the cause of the behaviours. The difficulty that then follows is the expert expresses herself agreeing with these individuals who have already (see social worker) determined the behaviours to be ‘sexualised’ and thus there is danger of circularity. Indeed this is the very point I make above as to the potential misuse of the word ‘sexualised’. It seems clear the expert has listened to the social worker describe the behaviour as ‘sexualised’ and expresses herself as agreeing. The problem is that this had a muddying impact on the judgment reached and whether this is based on an independent assessment or significantly influenced by the conclusions of others. I bear in mind the applicant has turned to the expert because it is not confident to simply rely on the views of those who have worked with the child. If the expert then allows those views to condition her own analysis she will have defeated the purpose of her assessment.

[63]Thirdly, and the above being the case one has to reflect on the actual clinical experience the expert has and the ability that provides to determine whether such behaviours are the result of abuse or consequent upon other non-abusive factors.

[64]I have been left with a real gap in confidence as to whether the expert does in fact have this expertise required to assist me in this case. I in no way seek to undermine the skill and expertise she brings to counselling those who have experienced trauma but this must be in the context of the facts being accepted or established. I cannot find within the evidence any experience which permits her to ‘diagnose’ abuse. I am less than persuaded her previous history in the NHS has placed her in a position to draw meaningful conclusions from behaviour patterns of developmentally delayed children.

[65]I am not persuaded she has any meaningful expertise with regards to the behaviour patterns of children suffering from developmental delay or other conditions, neurodiverse or otherwise, which may lead to behaviours which do not fall within normally expected boundaries. I have struggled to accept her viewpoint that ‘neurodevelopment delay is expressed in limited communication skills, limited eye contact and overall cognitive difficulties’ with no apparent recognition that such children may interact with others in a manner outside of normal societal boundaries. The Court and professionals have wide ranging experience of children within this category and it is by no means unusual to hear of children behaving in a manner towards other children and adults which would be concerning but for their developmental needs. Indeed the research positively suggests for all children a level of such behaviour is not unusual and it is very easy to see how a child with communication difficulties and an inability to determine otherwise known cues may act without social embarrassment in an uncontained fashion.

[66]However a further problem relates to the ranking of possibilities in this case. I accept the broad premise of the expert’s evidence that behaviour of this sort might be associated with or consequent on abuse. I do not believe anyone in the case suggests otherwise. As such it is one possibility for consideration with the question for me being as to whether it is more likely than not the explanation.

[67]But in addition two if not three further explanations arise. The first is the possibility that some of these behaviours, if not all may be reflective of developmental delay or consequent on the personal characteristics of the child. I have commented above as to my doubts as to the expert’s specific expertise in this regard. The second, is the sensory argument under which the child has over time developed a positive sensory impact when responding to nappy rash. The expert makes clear this is outside of her experience but I need to bear in mind the clinical view from the Havens that it may be an explanation. Thirdly, and whilst not particularly explored within this hearing there is the potential that such behaviours are a response to otherwise neglectful care and the absence of appropriate stimulation otherwise. I bear in mind the applicant argues the child has been generally neglected and there is the possibility that self-soothing is part of the picture under consideration.

[68]For her part the expert appeared to accept that the self-stimulation evidenced by the child may be explained otherwise than by abuse as a function of the points made above. However, what led her ultimately to reach the conclusion she did was the acting out towards third parties which she viewed as being very unusual.

[69]I have ultimately doubted the weight I can put on this opinion. In my judgment the research evidence plainly indicates the potential for a child of this age to evidence interest towards third parties. When one adds to that the child’s issues with social interaction and communication I then struggle to understand how a view can be reached that such behaviour is not a function of these circumstances.

[70]On the facts of this case the child appears to have gained some sensory pleasure from stimulation of her genitalia and this might suggest it is likely she will have a level of curiosity when engaging with other children and adults as to how they experience pleasure. For a child with communication issues and developmental delay is it really surprising to find her seeking to ‘communicate’ by reference to parts of the body that in her own lived experience provide a pleasurable feeling?

[71]I have borne in mind the suggested differential between home and school. It is suggested that this difference reflects an attempt on the part of the family to camouflage the reality of home life. But it is equally possible if, as I heard, the child does receive a high level of affectionate physical attention at home, that she does not need to deploy the same approach to her family members. This may explain why her touching was in the case of another child in the home and one with a clearly less firm bond to her.

[72]In assessing the evidence I have had regard to the wide canvas and I have particularly had regard to the following points: · I bear in mind the absence of supporting medical evidence albeit I do not place significant weight on this in my balancing exercise given the evidence from the Havens, which I accept, that an absence of signs of physical sexual abuse is not conclusive. · I bear in mind the absence of any historic record of abuse relating to the parties in the case. There are no convictions for such behaviour nor are there allegations made which have remained untested. Whilst the latter would create problems for the case in terms of evidence it is noteworthy this is a case without any such allegations arising against those subject to the allegations. · I also bear in mind the child has at no point made any references or observations that directly suggest abuse. For instance there is no record of her saying, whether in simple child language or otherwise, that any adult has in fact touched her, or that she likes it when X or Y does this. In cases of this sort it is very common for there to be some level of reporting, which may be open to question, but which is said to support a complaint against one or more individual. There is nothing of that sort here. I recognise the point made about the child having limited communication skills but I note the child is able to communicate to an extent in simply language (see the allegations).

Conclusions

[73]The parties will know I have actively managed this case since January 2026 and have in the course of such management expressed at times a level of doubt as to whether the applicant has a case which makes out the allegations placed before the Court. Notwithstanding this I have accepted this is a case which needs to be heard and determined on evidence.

[74]Having now heard the evidence I am not persuaded the applicant has made out its case as to the primary allegation of sexual abuse. This is principally due to my assessment of the expert evidence on which the applicant places significant weight. I have concluded the research on which the expert relies does not support her conclusions and that she lacks the real experience required to give appropriate guidance in this case. Furthermore I consider she has permitted the views of others to fix her conclusions rather than reaching wholly independent conclusions. I consider the first two of the above to fatally undermine her evidence whereas the third point adds to my concern.

[75]In such circumstances evidence as to the camera and lies simply does not assist the applicant. For my part I consider each point is potentially or likely related to the concerning behaviours but not as a result of those involved having perpetrated abuse. Opportunity alone is not probative where abuse has not been established.

[76]I recognise the behaviours in this case are of concern to professionals. I can see entirely why they have looked to ascertain whether there is evidence to support the same deriving from abuse. In many ways that is a natural concern to have. However there are and have been for some time obvious alternative explanations and I fear these have been placed to one side in favour of a preferred explanation. That is a shame as I consider an objective assessment by the applicant may have called into question the need for this hearing. I consider this case called for a dispassionate and objective assessment.

[77]I accept the fundamental building blocks for the allegation as set out at §21 above (2a-p) although I do not find (q) established as pleaded preferring an account of attempting to touch. Nothing though turns on that distinction.

[78]I do not find the central allegation at §21 (3) proven. As such the allegation at (4) falls away there being no pool of perpetrators. For related reasons the allegation at (5) is equally not proven. There are circumstances in which a failure to protect could survive the rejection of key allegations but this is not such a case. Allegation (6) falls with the main allegations. I therefore do not make the findings sought and the case will now proceed as expected.

[79]I will send this judgment to all advocates. They can share it with their lay and professional clients in advance of handing down which will be on 3 July 2026 at 10am. In advance of that hearing I would ask the following matters to be addressed: · Any corrections and/or requests for clarification by 4pm on 26 June 2026 · Any proposed additional redactions (other than the front page) for publication by 4pm on 26 June 2026. Any objections to publication by the same date · A draft order and updating position documents to be uploaded by 12 noon on 2 July 2026 HHJ Willans