CD (A Child), Re [2016] EWHC 3286 (Fam)

[2016] EWHC 3286 (Fam)

Case No LS16C00456

IN THE HIGH COURT OF JUSTICE

FAMILY DIVISION

Venue LEEDS DISTRICT REGISTRY, Royal Courts of Justice, Strand, London, WC2A 2LL

Date 07/12/2016

Before

MR JUSTICE HAYDEN

Between

Leeds City CouncilApplicant

A1 st Respondent

B2 nd Respondent

CD (By her Children's guardian)3 rd Respondent

Ms S Anning (instructed by Leeds City Council) for Local Authority

Ms J Astbury (instructed by Chambers solicitors) for 1 st respondent

Ms C Garnham (instructed by Liberty solicitors) for 2 nd respondent

Ms Aldred Switalskis Solicitors for child

Hearing Hearing dates: 5 th to 7 th December 2016.

Judgment Approved

This judgment was delivered in private. The judge has given leave for this version of the judgment to be published on condition that (irrespective of what is contained in the judgment) in any published version of the judgment the anonymity of the children and members of their family must be strictly preserved. All persons, including representatives of the media, must ensure that this condition is strictly complied with. Failure to do so will be a contempt of court.

[1]I am concerned, in these proceedings, with a 5 months old girl CD. CD is the only child of Mr and Mrs A. Mrs A is aged 25 years and was born and raised in Leeds. Her husband arrived from Pakistan to the UK in May 2006. Mr A was 14 years of age, at that stage. In 2006 Mr A obtained indefinite leave to remain from the Home Office. The couple are first cousins; they were married in August 2015.

[2]These proceedings commenced in consequence of a referral received by Leeds City Council from the West Yorkshire Police, following allegations of sexual assault and rape made against Mr A by his 14 year old niece EF. EF had complained to a teacher that she had been sexually abused and raped by her uncle (Mr A) over a period of approximately 9 years. Thus, it was alleged, the abuse began when she was only 4 years old. Following these allegations a referral was made to the Social Services at Bradford Metropolitan District Council (BMDC). EF had been interviewed by the Police, pursuant to the Achieving Best Evidence Guidance (ABE) on the 3rd February 2016.

[3]Having considered the allegations made within that interview, Ms Sara Anning, counsel for the Local Authority, distils the following allegations, which I have marginally refined: i) EF first began to be sexually abused by Mr A between the ages of 3 and 5 years (2005-2007); ii) The sexual abuse stopped in August 2015; iii) Accordingly, the abuse took place over approximately 8 years; iv) It occurred when Mr A was ‘babysitting for EF’; v) In this period the abuse included the following assaults and on numerous occasions; a) Penile penetration per vaginam; b) Penile penetration per anum; c) Sexualised touching of EF’s body, in particular her genital area under her clothes; d) Sexualised touching of EF’s breasts under her clothes.

[4]EF’s allegations became known to her Head of Year in consequence of his being told by another student what EF had been saying. EF participated in an ABE interview which took place on the 3rd February 2016, as I have mentioned, at around 6 O’clock in the evening. The interview lasted for 1 hour and 10 minutes. It has been transcribed, in full, and filed within these proceedings. EF also undertook an intimate medical examination the following day at around 2pm in the afternoon. The Consultant Paediatrician described EF as ‘understandably nervous and quite tense’. The short report records that it required a couple of attempts for EF to be comfortable enough to be able to cooperate with colposcopic examination.

[5]The examination of the hymen revealed ‘an appearance of a defect at around 7 to 8 O’clock’. There were no abnormalities of the anus and no evidence of reflex anal dilatation when examined in the left lateral position. Swabs were obtained for microbiology, STD investigation and there was also a urine sample taken. None of these tests revealed anything of clinical significance. The pregnancy test was negative.

[6]The colposcopic video recording was viewed by a second designated doctor whose responsibility is for safeguarding. That second doctor agreed that there were apparent defects to the hymen (as I have set out above) but concluded that, without the use of a swab to see if the defect opens more clearly, it would be difficult accurately to conclude that there was a defect present. Consideration was given to a further examination which was not ultimately pursued. It is perhaps important to record that despite her discomfort it is noted that EF was ‘happy to be liaised with for this arrangement to be made’. The ultimate conclusion of the two doctors was that ‘the colposcopic examination of the hymen findings was not clear…examination can be repeated but should be borne in mind that the examination findings on colposcopy can be normal despite sexual abuse’. The medical evidence was disclosed into these proceedings by the Police and, in accordance with practice, had been redacted. The names of the doctors have been deleted, they remain unknown these proceedings otherwise it is likely they would have been identified in this judgment.

[7]On the 26th February 2016 EF signed a statement in which she confirmed that she did not wish to proceed with a prosecution. That led to a decision by the Crown Prosecution Service not to pursue a case. It is notable, as the Local Authority emphasises, that EF did not retract her allegations. She stated simply that she did not want to give evidence at a criminal trial. For the avoidance of doubt EF has never retracted her complaint.

[8]The allegations faced by Mr A are profoundly serious. To be clear they involve allegations of rape and buggery over a period of 7 to 9 years, commencing when the alleged victim was still of primary school age. It is also alleged that these violations took place with great frequency, approximately every month. With this in mind, concerns quickly arose in relation to the children within the wider family as well as in relation to Mr A’s own child when she was born in June 2016. What is described as ‘a Contract of Expectations’ was drawn up, which had the objective of preventing Mr A residing in any property where children under the age of 18 were living.

[9]The range of the enquiry in this case has not extended to any detailed scrutiny of the safeguards put in place for the children in this extensive family. However, it is clear that Mr A has had wide and effectively unmonitored contact with a significant number of children during the course of these proceedings, all of which has been known to the Applicant. A senior representative of the relevant Local Authority attempted, in a somewhat perfunctory manner, to justify the approach. There is, in my judgement, no cogent rationalisation or extenuation here. I was told that the Local Authority had taken the view that maintaining the stability of this wide and seemingly cohesive family was considered to be important. No doubt it is, but it provides no coherent explanation for exposing these children to risk of harm of the gravity contemplated here. It is a clear example of woolly and confused thinking. It falls far short of what these children, in particular and society more generally, is entitled to expect from the agencies charged with child protection. It is an extremely serious safeguarding failure.

[10]Proceedings commenced by this Local Authority were predicated on the allegations made by EF. Accordingly, those allegations were set down to be heard before me at a discrete fact finding hearing. In October the parents, through their counsel, made an application that EF should be required by the Court to give oral evidence, in order that Mr A’s case could be put to her. The parties agreed between themselves that this was a ‘single issue case’ in which the veracity of the complaint was crucial, both to the findings the Court might make and the reach of the subsequent orders if such findings were made.

[11]There is, of course, no doubt that a competent child is a compellable witness in civil proceedings and that a witness summons could have been issued under section 31 G of the ‘Matrimonial and Family Proceeding Act 1994’ see also: Re S

[2016] EWCA 83

. The leading case providing guidance on these applications remains Re W (children)

[2010] 1 FLR 1485

. Central to the issue is the advantages that requiring the child to give evidence might bring to the determination of the truth on the one hand and, on the other, the potential harm to the welfare of the child in that process. I rejected the application primarily on the grounds that EF was expressing a strong wish not to be required to give evidence, articulated via her solicitor. As Baroness Hale indicated in Re W ‘an unwilling child should rarely, if ever, be obliged to give evidence’.

[12]In addition it seemed to me that the nature of the challenge advanced by the parents was at best a generalised accusation of lying. It struck me as entirely within the range of cases contemplated in Re W and described by Baroness Hale at para 25:

“The Court is unlikely to be helped by generalised accusations of lying, or by fishing expedition in which the child is taken slowly through the story yet again in the hope that something will turn up, or by a cross examination which is designed to intimidate the child and pave the way for accusations of inconsistency”

[13]Though I did not place very much weight on it at the time, I have become aware, during this hearing, of the poor quality of support that EF has within her family. This, I have concluded, is based not in their inability to help her but in their resolve not to, directly in consequence of the allegations themselves and their impact on the wider family. This serves to reinforce my earlier conclusion, which no party has sought to revisit.

The ABE interview

[14]Ms Garnham, on behalf of the father, has made a number of insinuations to the effect that EF’s interview fell short of the standards set by the guidelines. However, as Ms Anning rightly emphasises, none of those has crystallised into any actual criticism. There was, she effectively contends, a war cry but, on this point, no actual battle. I agree. This does not absolve me from evaluating the quality of the ABE interview. I considered that it was strikingly direct in both content and tone. Unlike many interviews of this kind the questioner eschewed offers of support or displays of reassurance to the Complainant. Many interviewers, I have noticed, find this difficult when confronted with a distressed child. Here however, the approach was, in my judgement, both professional and effective. In addition the interview, without being forced or becoming stilted, followed the graduated approach advised by the ABE guidance. In particular, there was an easy but un-patronising rapport building stage, open questioning and leading questions asked only at the end and for clarification (which, perhaps predictably, were unproductive).

[15]I say at once that I found EF’s complaints to be entirely compelling. Indeed, I am bound to say that rarely have I seen a more coherent and self evidently reliable interview of this kind. EF gave her account without anger, self pity or bitterness. She responded to direct, sometimes blunt questions in an equally direct manner. Conspicuously, her account was fretted with spontaneous detail e.g. her abuse first took place when she “was watching Scooby Doo” on the sofa “I was just lying down, I was like four, five”. When asked how she knew how old she was at the time she responded “I just remember being really little… Ms S in year one or my reception teacher, Ms K. On another occasion she recalled playing in her room with a Bratz doll which had ‘a wig.. where you do the hair’. She describes how this particular incident began:

“and then he said what you doing , I help you, said no its ok I can do it by myself and he goes like oh like, let me help you and I says no I can do it by myself, I was like no I can do it and he was like let me help you and then he just, I said ok then and he said ok I wont help you and he just grabbed me and put me on the bed and just…”

. By this stageEF was physically stronger, a little older and beginning to resist. The significance of her recall is that this was the first occasion when Mr A was “more like aggressive…I was kicking and he was just holding me down like and pinning me down”

[16]Ms Anning and Ms Aldred, the child’s solicitor, both point to what they describe as a fluency in EF’s narrative. They are right to do so, but what is also striking is the progression that she outlines from touching her when she ‘didn’t know what he was doing’ to undressing her and eventually raping her. This follows a pattern which is recognised as ‘grooming’ and would have been, manifestly, beyond EF’s knowledge. Similarly, she describes how Mr A told her “it’s nothing, its nothing, everyone does it”. Againthis reinforces, to my mind, her account of a dominant and persuasive adult in terms which are characteristic of the techniques of a predatory abuser. In similar vein, EF described how “his time he likes finishes, he used to get up and goes you cant tell anyone about this or you’ll get in trouble”. This is a recognisable strategy by which abusers control their victims and would not be known to EF.

[17]There are other features of the evidence which also point strongly to its reliability:

Presentation in interview:

[18]Throughout her interview EF endeavoured directly to engage with the questions asked of her. Her body language was entirely consistent with the content of her complaints. When discussing explicit sexual matters she was uncomfortable, embarrassed, plainly struggling with the emotions they evoked.

Language and description

[19]EF’s use of language was straightforward and spontaneous in her interview but when addressing issues in the sexual sphere, her vocabulary was limited but, in my assessment, in a way that was consistent with her age and, from what I have heard, her otherwise sheltered childhood. For example, she did not understand the word ‘erection’ or ‘hard on”, as the Police Officer put it to her. However she described Mr A’s penis as “hard” and “dry”. She continued ‘when it was wet it just went in and you could feel that it was wet’ causing him to go to the bathroom to ‘make it wet’ as she put it. When Mr A’s attention was drawn to this passage, during the course of his evidence, he agreed that his description was so clear and graphic as strongly to indicate an actual experience. Even he could not contemplate that EF might have fabricated this description. This led the Mr A to accede to the hypothesis that if it was not with him EF must have had sexual experiences with somebody else. I make it clear there is no other person with whom EF has that kind of trusted and unmonitored contact.

Evidence of LZ’s parents

[20]I found both EF’s parents to be unimpressive. Though her mother (Mrs B) professed to want to ‘analyse’ and “assess” (I emphasise that these are her words) her daughter’s allegations, the reality is that she and her husband have persistently tried to disengage with this investigative process. They did not file statements as ordered, only finally complying under judicial pressure and late in the day. The statements were themselves entirely superficial. Though purporting to be motivated to get to the truth of the allegations they had never even asked to watch their daughter’s interview. Ultimately, I had to order a witness summons compelling them to attend Court.

[21]On the first day of this hearing I was met with a request for EF’s parents be released from attending. I was told the father wished to return to work in his taxi. That struck me as an odd priority at a hearing where his daughter’s allegations of sexual abuse made against her uncle (his brother) were finally to be determined. Though, at least initially, no counsel had required them to give evidence. I indicated that I would like to hear from them, if only better to understand why EF, who began her complaint confidently had subsequently recoiled from both the criminal and family law process. In order that they were not disadvantaged in the witness box I encouraged them to watch their daughter’s interview in court with me. In her evidence Mrs B told me that having watched the interview she “still had questions” and “was still not sure”. When she was pressed as to her uncertainty she said that her daughter “was not very clear about how old she was” when she claims the abuse began.

[22]By contrast on 3 February 2016 contrast Mrs B had told social workers that she ‘believed her daughter, as she would not lie about something like this’. She also told the social worker that EF ‘used to tell her that she hated it when Mr A babysat’..

[23]I do not know whether the mother was being truthful in February or whether she was manipulating the social workers. It occurs to me that both could be true. In any event Mrs B now prevaricates about what was said. It also requires to be stated that, in the same conversation, Mrs B asserted that she wanted ‘to support her daughter through this difficult time and will ensure that her children have no contact with [Mr A] ever again’. In this she has woefully failed, albeit with the apparent acquiescence of the relevant Local Authority whose intervention has been supine to the point of irresponsibility. I should clarify that whilst it is not this applicant Local Authority, they too have been aware of the situation, which extends to children in their own area, and have done absolutely nothing to address it.

[24]EF has told the social workers that she feels her parent’s attitude towards her has changed since she made her allegations. That she loved her family greatly and her father, in particular, is obvious and acknowledged by everybody. She was, from the start, concerned about how her parents would react ‘if anything happened, I don’t want my family to split up’. The Police Officer identified this as her ‘big worry’, EF agreed that it was. All this militates against a false allegation because it establishes a powerful disincentive to make a complaint.

[25]Independent facts i) EF’s mother told me in her evidence that Mr A attended the home approximately once per month to babysit her children. Given what I find is her clear determination to undermine her daughter’s allegation this evidence is significant. Mr A strongly resists the contention that he babysat once a month. I reject his evidence preferring that of Mrs B and EF on this point; ii) Mr A disputes that he continued to babysit EF after starting university. Mrs B, in my view unwittingly, was clear that it continued even after Mr A went to college. Again, for similar reasons, I reject Mr A’s evidence; iii) Mr A entered the United Kingdom in 2006, which is precisely the point EF claims her abuse began; iv) As I have recorded above, EF told her mother that she ‘hated’ it when Mr A was babysitting; v) EF has recently been self harming by cutting herself with a blade that she keeps under her mattress.

[26]I find EF’s allegations to be entirely reliable. They lack embellishment; she was resistant to leading questions; she used language which was both graphic and precise. She concluded her interview with this phrase ‘I felt like I wasn’t in my body’. This, I am bound to say was consistent with her lack of bitterness towards Mr A as well as explaining her resistance to be drawn on any physical pain. It is clear that she coped with this systematic, prolonged and very serious sexual abuse by somehow finding a way to displace herself from it.

[27]By contrast, I found Mr A to be entirely unconvincing. He described himself as having become ‘an outsider to his family’. This not only revealed an egocentric perspective on this case but it happened also to be entirely untrue. Unlike EF who has been marginalised, Mr A remains in the bosom of this family, still attending monthly gatherings with them and still having unfettered access to approximately 10 children. The family plainly consider Mr A unfairly accused.

[28]In evidence, Mr A was assertive as to his version of facts but unable to suggest any reason why EF hated him babysitting her or why she should be motivated to make allegations of such gravity and in such detail against him. He agreed with Mrs B (EF’s mother) that her daughter was hard working, conscientious in her studies and did not tell lies either habitually or convincingly. His preparedness to blame an unknown person when confronted with the explicit details disclosed by EF reflected his own desperation.

[29]Many of the questions asked by the Police in interview were factual in content, enquiring about the structure of the family, practical arrangements, routines etc. Such questions, by their nature, permit ambivalent replies. However, the officer asked two questions, rather obliquely in the context of the whole, which were of a very different complexion: Question: What is your sexual preference? Mr A: Do I have to answer that? PC: No. Mr A: That’s fine then, I won’t. Question; Have you any interest in children? Mr A: I don’t have to answer that. PC: You don’t have to answer any of the questions, we’re just asking. These are very unusual responses to questions of this nature. Whilst I do not place significant weight upon them they do form part of a broader evidential canvass which points to the reliability of the allegations. The responses at least permit an inference of some ambivalent sexuality. Beyond this I am not prepared to go. In particular I am not prepared to accede to Ms Anning’s submission that they are relevant to credibility.

[30]I find Mr A brutally abused his niece over a period of approximately 9 years, repeatedly raping her both vaginally and anally. He has shown neither empathy nor remorse. He remains a very significant threat to the sexual and emotional security of children of either gender. He should have no access to children in any circumstances without vigilant adult supervision. Such supervision where it is deemed necessary should only be by adults who have a complete and unambivalent understanding of the risk he represents.

Post script

[31]I can understand that EF’s parents are motivated to keep this wide and supportive family together. Given the genetic interrelationship of the two sides of the family, their bond is particularly complex. They should however know that their daughter’s disclosure, as I find it to be, took tremendous courage and bravery, they should be proud of her and forever ashamed that they have failed to give her the support and care she needs. Most importantly, EF may have prevented another child, at some point in the future, from being subject to abuse of a similar kind. I should like to pay tribute to her for her courage. I should appreciate it if her Guardian would discuss with her, to whatever extent she considers appropriate, my findings in this judgment. I should also appreciate it if her solicitor Ms McNally could be present at this meeting.