Family Law Hub

A (A Child) [2012] EWCC 4 (Fam)

A case involving cross-applications for residence and which led to a fact finding hearing as to whether or not C's father had sexually abused her

  • CASE No BH10PO0683

    IN THE COVENTRY COUNTY COURT

    Date: 13 June 2012

    Before

    His Honour Judge Clifford Bellamy

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    Re A (A Child)

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    Miss Elizabeth Hepworth for the Applicant Father

    Miss Moira Walsh for the Respondent Mother

    Mr Timothy Lewis (solicitor) for the child

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    JUDGMENT

    This judgment is being distributed on the strict understanding that in any report no person other than the advocates (and other persons identified by name in the judgment itself) may be identified by name or location and that in particular the anonymity of the children and the adult members of their family must be strictly preserved.

    1. These proceedings concern A. A is now aged five. Her parents are KS ('the mother') and RN ('the father'). The proceedings come before me for a finding of fact hearing.

    Background history

    2. The mother is aged 39. The father is aged 43. Both are university graduates. Their relationship began in the autumn of 2005. The mother was then working as a prostitute. The father first met her as a client. Soon after, they formed a relationship.

    3. The parents began to cohabit when the mother was pregnant. She moved in to live with the father. Their cohabitation was short-lived. They separated in February 2008. Although the mother owned her own home she had rented it out. She and A therefore moved in to live with the mother's parents. In October 2008 the mother and A were able to move into their own home. The father had regular contact with A including staying contact.

    4. Both parents are recovering alcoholics. Although both are currently abstinent, in April 2010 the mother was still drinking heavily. On 25th April she asked the father to care for A. He agreed. The mother says that she had only intended this as a temporary arrangement.

    5. On 4th May 2010, upon leaving an Alcoholics Anonymous ('AA') meeting, the mother assaulted the father. The police were called. The mother was cautioned. By this time the father had a new partner, CA. She, too, is a recovering alcoholic. She was present when this incident took place.

    6. On 6th May 2010 the father issued an application in the Coventry County Court for a residence order and prohibited steps order. That same day, at a without notice hearing, District Judge Sanghera made an interim prohibited steps order prohibiting the mother from removing A from the father's care. He transferred the proceedings to the Warwickshire Family Proceedings Court ('the FPC').

    7. On 12th May 2010 the mother issued a cross-application, also seeking a residence order.

    8. A directions hearing took place on 17th May. An agreed order was made permitting the mother to have contact with A, to be supervised by maternal grandmother ('MGM').

    9. A further directions hearing took place on 9th June. The Justices ordered that a report be prepared by Coventry Cafcass pursuant to s.7 Children Act 1989. The report was to be filed by 1st September. Although the date for filing was subsequently extended to 15th September no report was ever filed.

    10. Shortly after that hearing the mother learned that the father intended to relocate to Dorset to be close to his family. On 24th June she issued an application for a prohibited steps order to prevent the move. That application came before the Justices on 20th July. The mother withdrew her application. A recital to the order acknowledged the father's intention to relocate to Dorset. In the interim, the Justices made a residence order in his favour.

    11. On 16th September 2010 the Justices transferred the proceedings to the father's local Family Proceedings Court from whence, on 18th November, they were transferred to the father's local County Court.

    12. On 27th March 2011 the mother sent an e-mail to the allocated Cafcass officer, in which she said that she had 'some concerns regarding A's behaviour over the past few weeks...' In particular she was concerned that A appeared to be displaying sexualised behaviour and making comments which suggested inappropriate touching by the father.

    13. The Cafcass officer made a referral to Social Services. A social worker, EF, was allocated to undertake an initial assessment. The assessment was undertaken very quickly. On 11th April the social worker visited the father and A at their home in Dorset. On 12th April he spoke to the mother by telephone (his only contact with the mother) and made a second visit to speak to A. On 13th April he completed an Initial Assessment Record. The assessment recommended that the local authority should take no further action and that its case file should be closed.

    14. The mother was not reassured by the local authority's investigation. On 3rd May she reported her concerns to the police. The next day, two police officers visited her home. They spoke to A. They took the decision to undertake an Achieving Best Evidence ('ABE') interview. They also made a referral to Coventry Social Care. On 5th May, Coventry Social Care allocated the case to social worker ST.

    15. On 6th May, the father was arrested and interviewed. A number of laptops, mobile phones, memory sticks and a hard drive were removed from the father's two homes and taken away for analysis.

    16. The parents' cross-applications under the Children Act were listed for final hearing in the father's local County Court on 17th May 2011. In light of the ongoing police investigation the judge was unable to proceed with the hearing as a final hearing. He gave case management directions for a finding of fact hearing. In the interim, he made a residence order in favour of the mother.

    17. A underwent an ABE interview on 25th May. She repeatedly stated that the father 'rubs my bum and tickles my fairy'. The police decided to re-interview the father. That interview took place on 1st June.

    18. At the conclusion of the police investigation a report was sent to the Crown Prosecution Service ('the CPS'). The report ends by stating that the case,

    'relates to an allegation of sexual assault on a four year old child by her father. An ABE interview has been completed and the suspect has been arrested and interviewed, denying the offence. There are no forensic opportunities and no independant (sic) witnesses to the allegation itself. For a charging decision please.'

    19. On 19th July 2011 the CPS wrote to the mother. The letter informed her that the senior Crown Prosecutor had considered the papers and had 'decided that there is insufficient evidence to proceed further with this matter'.

    20. As for the laptops and other devices, in their report to the CPS the police stated that,

    'The suspects (sic) computers have been examined by means of a cursory search and there is nothing of an illegal nature present on them. There is legal pornographic material.'

    21. On 18th August the Children Act proceedings were transferred back to the Coventry County Court. The first hearing in Coventry took place on 15th September. That hearing was conducted by District Judge Sanghera, the judge who had conducted the very first hearing in these proceedings sixteen months earlier on 6th May 2010. District Judge Sanghera gave a direction that A be made a party to the proceedings and that pursuant to rule 16.4 of the Family Procedure Rules 2010 an officer of Cafcass be appointed as Children's Guardian for her. He also listed the case for a finding of fact hearing on 30th January 2012. That hearing was subsequently vacated and relisted for hearing before me on 8th May.

    22. These proceedings have now been ongoing for a little over two years. The father has had no direct contact with A since 4th May 2011. It is highly regrettable that it has taken so long to get to this point.

    Alcoholism

    23. As I have already noted, both parents are recovering alcoholics. In April 2011 both parents underwent hair strand testing. In the mother's case the results were stated as 'strongly suggesting that the hair belongs to a subject that was not a regular alcohol abuser'. In the father's case the results were stated to 'strongly suggest that the hair belongs to a subject that has abstained from alcohol consumption within the last six to nine months'.

    24. In addition to the hair strand testing the mother also submitted to a psychiatric assessment. The psychiatric report is dated 14th February. In interview the mother gave a history of her increasing dependency on alcohol. She had become an alcoholic before meeting the father. She was still abusing alcohol when she met him. She occasionally attended AA. She had a three year period of abstinence until relapsing in 2009. She recognised that her abuse of alcohol was compromising her care of A. That insight did not lead to a change in behaviour. It was only after the father had taken over care of A that the light had dawned. Apart from a brief relapse in October 2010, which she attributes to anxiety relating to a forthcoming court hearing, she has been abstinent since April 2010.

    25. The psychiatrist expressed the opinion that the mother suffers from alcohol dependence syndrome and that at the date of examination she was 'currently abstinent'. She goes on to say that in her opinion the mother,

    'fully accepts that she has suffered from problematic alcohol misuse. Her GP records also confirm that she has actively engaged in treatment from her GP and specialist alcohol services...She attends the Community Alcohol Service in Coventry once per fortnight. She also attends a specialist counselling service...[the mother] has a substantial and appropriate treatment program that covers a range of supportive and specialised therapies to help maintain her abstinence from alcohol'

    26. As a recovering alcoholic it is plain that the mother is at risk of further relapse. As for that risk, the psychiatrist advises that,

    'there is therefore a possibility that should she experience acute triggers or possibly without any particular trigger she may experience further episodes of relapse of alcohol dependence syndrome. In my opinion such relapses are likely to be amenable to treatment in that she has demonstrated an ability to achieve abstinence from alcohol for long periods of time.'

    27. It is appropriate to mention in passing that the father alleges that the mother also has a shopping addiction. It is his belief that the mother suffers from Obsessive Compulsive Disorder ('OCD'). The psychiatrist was asked to address this issue too. In her report, the psychiatrist expresses the opinion that,

    'there is no evidence to suggest that [the mother] suffers from Obsessive Compulsive Disorder...She does not describe recurrent intrusive thoughts that are indicative of obsessions. There is no evidence of any repeated ritualistic compulsions consistent with this disorder...'

    28. There has been no expert assessment of the father. He says he has been abstinent from alcohol since December 2006. He attends AA several times a week.

    Prostitution

    29. The mother has worked as a prostitute.

    30. On 26th April 2010, the day after she had asked the father to take over A's care, the mother took part in a radio phone-in programme. She said that she had been working as a prostitute for nine years. She explained that,

    'I got into this because uhm unfortunately I got addicted to alcohol and uhm any kind of addiction whether its drugs or alcohol or whatever it is uhm you know you need to fund that addiction and err unfortunately for myself uhm I also got into a bit of a shopping addiction as well...'

    31. The mother says that she ceased working as a prostitute in October 2009. The father claims that she was continuing to work as a prostitute at the time he began these proceedings. Her profile still appeared on the website www.adultwork.com stating that she was available for work. The mother says that she did not work as a prostitute at all in 2010. She said that she had given it up because it was 'not intellectually stimulating'.

    32. The father claims that the mother has entertained clients in her own home. If true, in light of her responsibilities in caring for A, this would be a matter of concern. The mother is adamant that she has never entertained clients in her own home.

    33. In court, the father conceded that his belief that the mother has entertained clients at home is based on information given to him by third parties, none of whom have filed witness statements or attended this hearing to give oral evidence. Notwithstanding his belief, the father accepted that he is unable to prove that the mother did in fact entertain clients at her home.

    The findings sought by the father

    34. The father seeks three findings against the mother:

    (1) That until at least April 2010 the mother was working as a prostitute and had been for some 9 years to fund her alcohol and shopping addictions.

    (2) That the mother's level of judgment had deteriorated to a level where working as a prostitute in her own home had become normal and acceptable to her even taking into account the risks to the mother and A.

    (3) The mother's level of drinking was such that prior to the father taking over care of A, A's safety and welfare were at risk.

    Discussion and conclusions

    35. I have noted the dispute between the parents as to the date when the mother ceased to work as a prostitute. There is no evidence to gainsay her claim not to have worked since October 2009. On this issue I accept her evidence.

    36. Although the mother accepts that there was a period of time when she shopped to excess, I am satisfied that it would be wrong to describe this as an addiction. The psychiatric evidence states clearly that the mother does not suffer from OCD.

    37. Subject to those two points, I am satisfied (and indeed the mother concedes) that the first finding sought by the father is made out.

    38. As for the second finding, I have already noted that in his oral evidence the father accepted that there is no evidence that would support a finding that the mother had worked as a prostitute in her own home. On this issue I accept the mother's evidence. I find this allegation not proved.

    39. As for the third finding, this is not challenged by the mother. Her status as a recovering alcoholic is not disputed. The mother accepts that until April 2010 A's safety and welfare were put at risk by her excessive drinking. I am satisfied that this allegation is made out.

    Pornography

    40. The eleven findings sought by the mother are much more contentious. Before I turn to those issues there is a preliminary issue that needs to be addressed and that relates to the father's use of pornography and his expressed sexual preferences. I am satisfied that this issue provides relevant contextual background in respect of the mother's allegations and is an issue in respect of which I must make findings.

    41. This issue was explored in depth in the first of the father's police interviews. He was asked what the police could expect to find on his computers. He said,

    'You will find - you will find anal sex, you will find various - various other things, but you won't find anything with children...'

    This was followed up a little later in the interview:

    Q: You made - you made a point of anal sex, is that something that you're quite interested in?

    A: You know, yes, there are - there are sexual fantasies and then there's reality. Now, and - and the two are very different things.

    Q: Is the sexual fantasy - a fantasy of yours, anal sex?

    A: Yes

    42. Later, the father was asked more specific questions about his interest in pornography:

    A: You'll find...male/female, female and female, you know, normal internet pornography.

    Q: Okay

    A: You know, perhaps group sex.

    Q: What would you -

    A: Perhaps some bondage

    Q: Okay. Some bondage, okay. So what kind of search terms would you use for your pornography that you would be interested in?

    A: Oh, 'sex, throated', just - just - and what - you know, it's more a case of finding something and then clicking on a link to something that takes you to a link to something else...

    Q: Okay. When you - when you say 'throated', what's that mean?

    A: A woman performing oral sex on a man.

    Q: Okay. Any other - any other search terms that you would nor - use on a normal basis?

    A: 'Gagging' maybe

    Q: Okay. How often do you look at pornography?

    A: Quite a lot. Probably - probably every day

    43. Though not pursued further in the police interviews, in his oral evidence the father explained that in this context 'gagging' means oral sex in which the woman takes the man's penis to the back of her throat, in some cases leading to the woman vomiting.

    44. The father was asked about the format in which he viewed pornography:

    Q: Okay. You - you are talking about searching on the internet for porn. How do you store any porn that you obtain from the internet?

    A: I don't. I tend to watch video streaming

    Q: Okay. Have you got any stored pornographic images, videos, anything that would come under the umbrella of pornography, stored within any of the computers?

    A: There may be - there may be some stuff there, but it may be a case of it's been downloaded, but I don't - I don't think so

    45. At the end of the interview the father went on to volunteer

    A: That you may - you may find some more extreme pornography on my laptop, but again it's just - it's just something that I look at

    Q: What do you mean by 'extreme'?

    A: Well, in the gagging, there may be a couple of women that - that while they're gagging, they've been sick, that sort of stuff, but that's it

    46. During their search of his home the police found a riding whip under the father's bed. The father told the police that he 'had a girlfriend ten years ago that liked to be spanked a little bit'. He said that the riding whip 'got shoved under the bed, and that's where it's lived since'. He had completely forgotten that it was there.

    47. The police having removed all of the computers and other devices, in June the father purchased a new laptop. He said that he used his laptop for online banking and that he therefore needed a replacement for the ones removed by the police. I asked him whether he had used his new laptop to watch pornography. He confirmed that he had.

    48. Within these proceedings the father has made three witness statements in addition to the statement contained within his original Children Act application form C100. The first two statements pre-date the police investigation. It is perhaps unsurprising, therefore, that in those statements the father makes no reference to his interest in pornography. His silence on this issue in his final statement dated 5th October 2011 is rather more surprising.

    49. The mother has produced seven pages of a Google search which appear to list pornographic websites visited by the father. The results of the search are linked to the father by his user name and password, both of which are known to the mother. The father accepts that those are the user name and password he uses to access pornographic websites. He nonetheless denies having visited all of the sites listed. He suggested that someone (the mother, perhaps) had misused his user name and password to create the impression that he had visited those sites. The mother denies this.

    50. Although the titles of many of the sites suggest that they relate to adult pornography, the titles of two sites (lil mixxx and lesbyteens) raise at least a suspicion that they may involve child pornography. The father was not able to shed any light on that issue. However, he did accept that he has visited pornographic sites involving teenage girls aged 18 and 19. He could see nothing wrong in this. He made the point that 'we send 17 year old men to war'.

    51. The father confirmed that he has watched pornography at both of his homes. He admits that he has watched pornography whilst A has been in his care though says that it has always been when she has been in bed. She has never been exposed to it. He confirmed that when he is not in a relationship he watches pornography daily. He was last in a relationship in December 2010. His interest in pornography is current and ongoing. When asked how long he spends watching pornography each day he said 'I watch it until I am satisfied'.

    52. The father admits that in the past he has paid for sex. He says that whilst he was a dependent alcoholic he used prostitutes extensively, perhaps once a fortnight, over a period of several years. The last person he paid for sex was the mother. He had only paid her once. They had then formed a relationship.

    53. The father accepted that he fantasises about anal sex. He said that anal sex 'has at some point interested me' and that he has 'occasionally fantasised about anal sex'. He 'categorically' denied having had anal intercourse with the mother though he confessed that he had had anal intercourse with a former girlfriend around a decade ago. This had been consensual. This admission does not appear in his police interview. The mother told the police that on one occasion during their relationship she had woken during the night to find that the father was having anal sex with her. The father denied this. On this issue I prefer the mother's evidence.

    54. To her first Children Act application the mother appends a print-out of the father's profile as it appears on the website www.s... . The mother told the police that this is a 'swingers' website. Under the heading 'drinks' the profile states 'Regularly'. I note in passing that that appears to conflict with the father's evidence that his last alcoholic drink was almost five and a half years ago.

    55. Although the profile appears to be two years out of date (it states his age as 41) the father admits that his profile still appears on this website. He accepts that within days of the police investigation beginning he had closed some of the accounts which used his username. He had not closed down his profile on www.s... , claiming that he had forgotten his password for that site and so had been unable to close that account. Given the father's IT competency (a key skill required in his employment) I found that explanation improbable.

    56. The father described this website as a place to meet likeminded people for chat and/or sex. Although he said that he had not used this site to chat to a woman since meeting the mother eight years ago he admitted that he has visited other websites for chatting.

    57. The father admits that he watches pornography on a very regular basis. He admits that some of the material he watches is, to use his own word, 'extreme'. His interest in pornography involving teenagers aged 18 and 19 is disturbing. His attempt to make this sound quite reasonable by saying that 'we send 17 year old men to war' was misjudged and wholly inappropriate. His obsession with pornography is in my judgment unhealthy and disturbing and is, by itself, sufficient to warrant a direction that he should undergo a psychological assessment before his application for contact can be finally determined.

    The findings sought by the mother

    58. I turn now to the findings sought by the mother. There are eleven in total. The essence of the findings sought is an overarching finding that the father has sexually abused A by inappropriate touching and/or by encouraging her to act in a sexualised manner and/or by failing to maintain appropriate sexual boundaries whilst she was in his care. The father denies having sexually abused A.

    First and fifth findings

    59. The first and fifth findings sought are identical: that there is a lack of sexual boundaries in place in father's home.

    60. The mother alleges that in December 2010 A informed her that she had seen CA's tattoo of a star on her bottom. She goes on to allege that the father walks around the house completely naked in the presence of A.

    61. The father accepts that CA has a tattoo on the bottom of her hip. The tattoo is of a 'little devil' and not of a star. He accepts that A may well have seen this when CA has been getting changed. A may have seen them both 'in various states of undress' though she had never seen them naked together. A has never seen them engaged in sexual activity.

    62. The father accepts that it is likely that A may have seen him naked. He accepts that there have been times when he has walked from the bathroom to his bedroom and that very occasionally he may have gone downstairs naked in order to collect something. There have been many times when A has come into the bathroom when he has been using the toilet. He did not think it would have been appropriate to lock the door whilst he was at the toilet, leaving A unattended. The father did not accept that there had been a lack of appropriate sexual boundaries when A had been in his care.

    Second, sixth and ninth findings

    63. The second, sixth and ninth findings sought by the mother also have a common theme. The mother alleges that since January 2011 A has consistently exposed herself and demonstrated sexual behaviour suggesting, on occasions, that it was what she did with her father.

    64. The mother's first detailed account of her concerns about A's behaviour is set out in her witness statement dated 6th May 2011. So far as is material, the mother says that:

    '15. Shortly after the Christmas period in 2010, I noticed a disturbing change in A's behaviour. This shift in A's behaviour coincided with the breakdown in the Applicant's relationship with CA and the subsequent lack of female influence whilst in the Applicant's care. A started requesting that I rubbed her bottom "like Daddy does". On the first few occasions A requested this, I did not have any initial concerns and merely cast aside these comments excusing them for childish remarks. It was not until January that I considered that they were not just childish remarks. A's behaviour then became more alarming when on one occasion whilst playing a game with A, she pulled her tights down and lay on the bed with her legs bent right over her head attempting to remove her pants stating "Daddy does it". I was very shocked and concerned over this behaviour and subsequently called [my solicitors]...

    18. ...I was very alarmed to discover A on more than one occasion proceeding to pull her trousers down and bend over...A has also on another occasion laid on all fours on top of her bed and requested that I "rub her bum and fairy". I was extremely shocked and disgusted by this and enquired of A who rubs her bum and fairy to which she responded "No-one, No-one just Daddy". I find it of great concern that A freely volunteers this information and appears to assume that it is normal for her "bum and fairy" to be rubbed. Of grave concern is the fact that A repeats the phrase "I do it when Daddy tickles me. Daddy shows me what to do.'

    65. Three weeks later, on 27th May, the mother completed her third witness statement. In it she repeats some of the material to which I have just referred. She also adds new material. She refers to an incident in mid January 2011 when A lay on her back, threw her legs over her head, and pulled down her pants and tights. MGM was present when this happened. MGM says that she saw this happen a number of times 'with my own two eyes'.

    66. The mother refers to an incident in April 2011 which she had recorded on her mobile phone. She says that,

    '11. In or around April 2011, I recall on one occasion, A came into my bedroom at about 6.30am. She crawled into my bed for a cuddle. After just a few seconds she pulled down her pyjama bottoms and said to me, "rub my bum and fairy". I said, "what A?". She said, "rub my bum" I said "why do you want me to rub your bum?" She said "because I like it". At this point I discreetly reached for my mobile phone, switched it on and placed it on the pillow on record.'

    The transcript of this recording is as follows:

    M: Do you want me to tickle you

    B: I just fell over

    M: Just want a cuddle

    B: No rub my bum

    M: What do you want me to rub your bum for

    B: It feels nice

    M: Have you pulled your trousers down

    B: Yes

    Whispering which is unclear

    B: My bum, I want you to rub my bum

    M: But I haven't rubbed your bum before who else rubs bum

    B: Daddy

    M: Who else

    B: No one

    B: Im going back to my own bed

    67. The mother says that some of A's behaviour was reminiscent of her own sexual relationship with the father. For example, she says that the father would lie on his back with his knees up touching his head. He enjoyed masturbation in this position.

    68. The father denies any similarity between A's behaviour as described by the mother and his own sexual relationship with the mother. He denies ever having touched A inappropriately. He says that he has not encouraged A to display her bottom in the way described by the mother. He denies ever having tickled her in a sexual way.

    Third finding

    69. The third finding sought by the mother is that in February 2011 A informed her maternal grandmother that 'Daddy has been looking at my fairy'.

    70. MGM has given evidence on this issue. In her written statement MGM says that,

    '5. During my police interview I informed Police of A's disclosures and perturbing behaviour to include A lying on the floor with her legs over her head with her pants pulled down. I also observed the same behaviour from A whilst lying on the sofa and stating "this is what I do when Daddy tickles me"...

    6. In March 2011, I recall having returned from collecting A from the Applicant's house...and we were preparing breakfast in the kitchen. Whilst A was playing with her dolls in the kitchen, she took me by surprise and stated "Daddy was looking at my fairy". I continued what I was doing and said to her, "Was Daddy cleaning your bottom?" A very determined "no" came back to me. I then said to her "Did you do a wee and Daddy was drying your bottom?" Again the same determined "no" came back to me. Finally I asked A "Did you have a sore bottom sweetheart and Daddy was making it well?" To my horror, A again firmly replied "no" then further added "he was just looking at my fairy".'

    71. MGM stood by this account in her oral evidence. Notwithstanding rigorous but entirely appropriate cross-examination by Miss Hepworth on behalf of the father, MGM was unmoved. She was adamant that the account given in her written statement was true. MGM said that she had never witnessed such behaviour in her own three daughters when they were A's age.

    72. Although he believes MGM to be very angry with him the father accepted that she is fundamentally an honest lady. He accepts MGM's evidence concerning this incident. He could understand why MGM found it concerning. However, he was adamant that whatever A may or may not have done or said there must be an innocent explanation for it. He said, 'I haven't done anything to my little girl'.

    Fourth finding

    73. The fourth finding sought by the mother is that at the end of February/early March 2011 A, in front of her mother, bent her knees up and pulled her tights down and placed her thumb inside her anus stating "Daddy shows me what to do when he tickles me".

    74. In her second witness statement the mother said that,

    '18. ... On one occasion I recall lying with A on a couch. Whilst we were playing a tickling game A put her hands down to remove her pants, flipped her legs over her head and put a finger from her right hand inside her anus. I was totally appalled by this behaviour and reported this to CAFCASS.'

    75. Three weeks later, in her third witness statement, the mother gave a slightly different account of that incident.

    '9. In or around late February or early March 2011, A and I were at her maternal grandmother's house. We had just collected A from the Applicant's house...My mother was cooking breakfast in the kitchen and I was in the living room with a very excited A. A jumped on my lap for a cuddle. I was sitting on the sofa at the time. I started to tickle A and she wriggled over on to her back, lying across my legs. Her knees were bent up to her chest. I was so concentrated on tickling under her arms that I had not noticed that she was slowly (she always pulls her bottom half down slowly she finds this funny), pulling her skirt and tights down to her knees. At that moment I noticed, which would have been mere seconds, she was giggling away and had her hand in an unusual position very near her bottom area. I said to her, "A what are you doing?" She said "daddy shows me". A had placed the thumb of her right hand just inside her anus. I was totally shocked and lost for words. She removed her thumb. She had stopped laughing then. I think this was because I had stopped tickling her and was now looking shocked.'

    76. There is some discrepancy between the mother's various accounts of this incident. In her second statement she said that A put a finger up her bottom. In her third statement she says that it was her thumb. In an e-mail to the Cafcass officer on 27th March 2011 she suggests that this has happened more than once and that MGM had seen it happen. She now accepts that it happened only once and that though in the house at the time MGM did not personally witness this incident. The father is unable to gainsay the mother's account of this incident.

    77. Though unrelated to the allegation that A put her thumb up her anus it is appropriate at this point to record the detail of an incident that happened long before the mother became concerned that the father may have sexually abused A. The mother describes an incident when the father had used a paperclip to remove impacted faeces from A's anus. She says that she screamed at the father to 'stop it' and he then shouted at her, 'get out, I know what I'm doing'.

    78. The father accepts that this incident occurred but does not fully accept the mother's description of it. He says that he had had A staying with him for the weekend. When he returned her to her mother she was constipated. He checked her nappy. He could see that her bottom was sore. He had used a pen top (not a paperclip) to remove hard faeces from her bottom. He had also filled a syringe with a mixture of lukewarm water and KY jelly and discharged the contents of the syringe into her anus. She had then had a bowel movement within a matter of minutes. For the guardian, Mr Lewis suggested to the father that he appeared to have undertaken this procedure 'confidently'. The father said that what he had done was very simple, though something he had never done before. He does not accept that the mother screamed at him to stop. He does not accept that he told the mother to leave and had said, 'I know what I am doing'. He accepted, with hindsight, that what he did had been foolish.

    79. There is no clear evidence as to the dating of this incident though the fact that the father says that it happened when he returned A to her mother following weekend contact suggests that it must have happened before May 2010.

    80. The father accepted that he had not mentioned this incident to the police. He also accepted that he had been economical with the truth in his police interview in that he had not accepted that he had ever had anal sex.

    Seventh finding

    81. The seventh finding sought by the mother is that the father visits web sites the titles of which are suggestive of an interest in underage sex.

    82. I have already considered in detail the father's interest in pornography and his sexual fantasies, particularly those concerning anal sex. The fact that the names of two of the websites the father appears to have visited suggest that the participants in those films may have been children is not proof that the participants were in fact children.

    83. It is also appropriate to make the point that given that the police describe their analysis of the material removed from the father having been a 'cursory' analysis, the fact that no illegal images were found should not necessarily be regarded as conclusive on the point.

    Eighth finding

    84. The eighth finding sought by the mother is that A has become 'entrenched' in open mouth kissing and poking mother's bottom.

    85. In her third witness statement the mother describes a catalogue of what she considered to be concerning behaviour. She says that,

    '7. A continued to show me her bottom, asking me to "rub her bum"; give her a 'poke hug'; asking if she could have a baby in her tummy; telling me she wanted a baby in her tummy; and asking me to put my hand down her trousers, pants, or tights; to rub her...'

    86. According to the mother A had a habit of coming up behind her and poking her on her bottom. This is always on the cheeks of her buttocks and not between her buttocks. A calls this a 'poke hug'. She did not know why A had used this expression. At the time, she had been concerned about this but now accepts that A's reference to a 'poke hug' was quite innocent.

    87. In that same statement the mother goes on to say that since reporting her concerns to the police on 4th May 2011,

    '12. ...A has displayed other behaviour such as open mouth kissing and poking at my bottom. Some of this behaviour is going to be childhood curiosity. However, there was enough behaviour coming from A for me to be concerned that it was not age appropriate.'

    MGM expressed concern about the fact that on several occasions A had 'open-mouth kissed me'. This had happened between January and April 2011. She says that it doesn't happen now.

    88. The father was unable to gainsay that evidence. He was unable offer any explanation for A's behaviour. He said he seemed to remember that A had once given an open mouthed kiss to him and he had told her not to. He denied having shown A how to give an open mouth kiss saying, as he said many times during his evidence, 'categorically not'.

    Tenth finding

    89. The tenth finding sought by the mother is that on 27th May 2011 A grabbed her hand and pushed it between her (A's) legs. In her final witness statement the mother says that,

    '2. On 27th May 2011, A grabbed my hand and pushed it between her legs. I recall this incident having taken place whilst A and I were engaged in a 'fun tickle' session in the living room. A was sitting on the sofa with her legs apart when she grabbed my hand and placed it in her groin area. I removed my hand instantly. She was wearing her pink leggings at the time. A was asking me to tickle her 'fairy'. I did not respond to her requests and casually walked out of the room so that A would not suspect that I had any concerns with what she was saying.'

    90. In her oral evidence MGM said that there have been times when A had tried to use her (the grandmother's) hand to tickle or rub vagina but she had always managed to distract her.

    91. The father said he could not think why A should have behaved like this with her mother but not with him.

    Eleventh finding

    92. The eleventh and final finding sought by the mother is that on 28th May 2011 A attempted to force her big toe on her right foot inside her 'fairy'.

    93. In her fourth and final witness statement dated 8th March 2012, the mother says that

    '3. On 28th May 2011, A attempted to force her big toe on her right foot inside her 'fairy'. I was in the kitchen preparing a night time drink for A whilst she was sitting on the sofa in the living room. Upon entering the living room, I saw A in a serious facial mood attempting to push her big toe into her 'fairy'. She was doing this with some concentration to see if her big toe would fit into her 'fairy'. At the time of this incident, A was wearing her night dress with no pants on.'

    94. The father was not there when this is said to have happened. He could not understand it and was unable to comment. He was adamant that A had not been mimicking anything he had done.

    The father's response to the findings sought

    95. With respect to almost all of the findings sought by the mother it is difficult for the father to gainsay the evidence from the mother and grandmother. He was not present when A's concerning behaviour is said to have taken place. It is for the court to determine whether the mother and grandmother are reliable historians. If they are reliable, and if A did behave in that way, then it is for the court to determine how that behaviour is to be interpreted. The father's position is that he has never sexually abused A, he has never engaged in inappropriate sexual touching or encouraged A to do so.

    96. The father says that when A was living with him there were times when she would wake during the night and come into his bed for comfort. She would lie on top of him and cuddle him. He would encourage her to go back to sleep. More often than not he would settle her back down in her own bed. He accepted that sometimes he would rub A's back and the upper part of her buttocks but never her anus. He had only rubbed her in this way in order to comfort her. He was adamant that he had never touched A in a sexual way, whether for his own sexual gratification or to teach her about sexual activity.

    97. Given her age, the father had had to provide some assistance to A in toileting and bathing. When bathing her he would use a sponge to wipe her, not his hand. When she went to the toilet he would use toilet paper to wipe her. He denied that he had ever tickled her vagina. He could think of no reason why she should say that he tickled her 'fairy'. He accepted that in play he had tickled her in the groin but not near to her vagina.

    98. The use of the word 'fairy' is a word the father had grown up with. It is a word used by his family when referring to the vagina. He did not believe that A understood the difference between her vagina and her urinary meatus. A does not know what a vagina is. Her understanding of 'fairy' is 'where she would do a wee'.

    99. The father called evidence from his mother GN, and his sister, FN. They are in no better position than the father to contradict the evidence concerning A's behaviour. Neither of them has seen or heard such behaviour. In their oral evidence both said that they had seen the father give A what they described as a 'full on tickle' at the top of her legs, high up on her groin but never near her vagina.

    100. The evidence of GN and FN is mostly directed towards the mother's credibility. GN, for example, says that she is 'concerned that A has informed us that she has "lots of secrets with mummy". On occasions she has started to tell us things and then stop and say "oh no I can't tell you that".' FN says that she last saw A on 24th April 2011. She asked her how her mummy was. She says that 'A told me that her mummy hadn't been very well but was better now and then said "I'm going to be with her for 14 weeks". The inference I am invited to draw from this evidence is that the allegations of sexual abuse have been contrived by the mother as a means of securing A's return to her care.

    101. To his first witness statement the father attaches the transcripts of text messages passing between the mother and himself between November 2009 and May 2010. In a text from the mother to the father dated 7th March 2010 the mother said,

    '...I am struggling with a complete mantal (sic) and physical breakdown. Have been in the caludon centre all last week very ill...'

    In a subsequent message sent that same day, the mother wrote,

    '...Uncontainable anger at the mess you have caused me, drank myself into that cauladon (sic) centre (Coventry Mental Health Unit) last week...'

    102. In her oral evidence the mother accepted that she has never been a patient at the Caludon Centre. The father invites me to find that the mother is an unreliable witness.

    Achieving Best Evidence interview

    National guidance

    103. Guidance on interviewing children can be found in Achieving Best Evidence in Criminal Proceedings - Guidance on interviewing victims and witnesses, and guidance on using special measures ('the ABE guidance'). The current version of this guidance, produced jointly by the Crown Prosecution Service, the Department for Education, the Department of Health and the Welsh Assembly Government, was published in March 2011.

    104. Section 2 of the guidance is headed 'Planning and preparation'. The ABE guidance makes the point that,

    2.1 The purpose of an investigative interview is to ascertain the witness's account of the alleged event(s) and any other information that would assist the investigation. A well-conducted interview will only occur if appropriate planning has taken place. The importance of planning cannot be overstated. The success of an interview and, thus, an investigation could hinge on it.

    This point is repeated elsewhere in the guidance.

    105. It is also important that the planning process is properly recorded. The ABE guidance advises that,

    2.222 A full written record should be kept of the decisions made during the planning process and of the information and rationale underpinning them. This record should be referred to in the body of the Criminal Justice Act 1967 statement subsequently made by the interviewer in relation to the planning, preparation and conduct of the interview...

    106. As part of the planning process there should be an assessment of the child prior to the interview. The ABE guidance states that,

    2.53 Interviewers may decide that the needs of the child and the needs of criminal justice are best served by an assessment of the child prior to the interview taking place, particularly if the child has not had previous or current involvement with the local children's services authority or other public services...

    2.54 Interviewers must be careful to balance the need to ensure that the child is ready and informed about the interview process against the possibility of any suggestion of coaching or...

    2.55 A full written record of any such assessment(s) must be kept and must be referred to in the body of the Section 9 of the Criminal Justice Act 1967 statement that reports on the planning and conduct of the interview...

    2.56 Interviewers must have clear objectives for assessment(s) prior to interview and should apply this guidance on talking with children during such assessment(s) (e.g. they should avoid encouraging a child to talk about the alleged offence and should not interrupt them if they freely recall significant events). The interviewer must make a full written record of any discussion, making a note of the timing and personnel present, as well as what was said and in what order. The interviewer should begin by explaining the objectives of the interview to the child...

    107. The ABE guidance makes it clear that children's social care should normally be involved prior to the interview, and as part of the planning stage, and that there should be a strategy discussion. The guidance states that,

    2.20 At a minimum, such as instances in which the child has experienced no previous contact with the public services, the investigating team in child protection cases should include representatives from both the police and the local children's services authority.

    2.21 Whenever suspicion has arisen that a child has suffered, or is likely to suffer, significant harm, there will be a strategy discussion or meeting involving the local children's services authority, the police and other professionals as appropriate, e.g. paediatrician, child and adolescent mental health services (Working Together to Safeguard Children (Department for Children, Schools and Families, March 2010)...

    108. Section 3 of the ABE guidance is headed 'Conducting the interview'. It begins with the general statement that,

    3.1 The basic goal of an interview with a witness is to obtain an accurate and reliable account in a way which is fair, is in the witness's interests and is acceptable to the court...

    109. The guidance recommends that there should be four stages to the interview:

    3.3 For all witnesses, interviews should normally consist of the following four main phases:

    * Establishing rapport;

    * Initiating and supporting a free narrative account;

    * Questioning; and

    * Closure.

    110. So far as concerns the rapport stage, the guidance makes it clear that this 'should not be regarded as something that is confined to the first phase of an interview; it begins when the interviewer first meets the witness and continues throughout the interview'. (para. 3.11).

    111. It is the court's responsibility, ultimately, to determine whether the child's account is reliable. The ABE guidance advises that,

    3.18 Toward the end of the rapport phase of an interview with a child witness, when ground rules have been explained to the child, the interviewer should advise the witness to give a truthful and accurate account of any incident they describe. There is no legal requirement to do this, but since the video may be used as evidence, it is helpful to the court to know that the child was made aware of the importance of telling the truth. This should be done in the rapport phase and not later in the interview because this might run the risk of the child concluding that the interviewer had not believed what they had said up to that point.

    112. Phase two, the free narrative stage, is intended to give the witness the opportunity to give their own account of the events in question. The guidance advises that,

    3.24 In this phase of the interview the interviewer should initiate an uninterrupted free narrative account of the incident/event(s) from the witness by means of an open-ended invitation...

    3.26 It is essential not to interrupt the witness during their narration to ask questions; these should be kept for later.

    3.27 In the free narrative phase, the interviewer should encourage witnesses to provide an account in their own words by the use of non-specific prompts such as 'did anything else happen?', 'is there more you can tell me?' and 'can you put it another way to help me understand better?' Verbs like 'tell' and 'explain' are likely to be useful. The prompts used at this stage should not include information known to the interviewer concerning relevant events that have not yet been communicated by the witness.

    113. With respect to phase 3 of the interview, the questioning stage, the ABE guidelines make it clear that open-ended questions are to be preferred and that forced-choice questions, multiple questions and leading questions (all of which are clearly defined) are to be avoided. That guidance is followed by a section headed 'Special Considerations: Children and Vulnerable Adults'. The following paragraphs are of particular note:

    3.69 It is important that the interviewer asks only one question at a time, and allows the witness enough time to complete their answer before asking a further question. Patience is always required when asking questions, particularly with developmentally younger children... Interviewers should not be tempted to fill pauses by asking additional questions or making irrelevant comments... It is important also that the interviewer does not interrupt the witness when they are still speaking. Interrupting the witness may suggest to them that only short answers are required...

    3.72 Many children and vulnerable witnesses will have difficulty with questions unless they are simple, contain only one point per question, do not contain abstract words or double negatives, and lack suggestion and jargon...

    3.74 The information requested in questions should always take account of a child's stage of development. Many concepts that are taken for granted in adult conversation are only acquired gradually as children develop. Therefore, questions that rely upon the grasp of such concepts may produce misleading and unreliable responses from children, which can damage the overall credibility of their statements in the interview...

    3.79 The questioning of children and vulnerable adult witnesses requires extensive skill and understanding on the part of interviewers. Incompetent interviewers can cause children and vulnerable adult witnesses to provide unreliable accounts. However, interviewers who are able to put into practice the guidance on questioning contained in this document will provide witnesses with much better opportunities to present their own accounts of what really happened.

    114. Section 3 of the ABE guidance ends with guidance on the 'closure' stage of the interview:

    3.80 If appropriate, interviewers should in this final main phase consider briefly summarising what the witness has said, using the words and phrases used by the witness as far as possible. This allows the witness to check the interviewer's recall for accuracy. The interviewer must explicitly tell the witness to correct them if they have missed anything out or have got something wrong.

    3.81 Summarising the interview can lead to further retrieval. The witness should be told that they can add new information at this point in the interview; otherwise they are unlikely to stop an interviewer in the full flow of recapitulating.

    3.82 Interviewers should not attempt to summarise what the witness has said where the witness is fatigued, in an emotional condition or otherwise distracted because they may not be in position to listen properly to the summary. Similar issues may arise where the witness appears to have a short attention span (as may be the case, for example, with young children and some adults with a learning disability).

    3.83 If there is a second interviewer/monitor present, the lead interviewer should also check with them whether they have missed anything.

    Closure

    3.84 The interviewer should always try to ensure that the interview ends appropriately...

    3.85 In this phase, regardless of the outcome of the interview, every effort should be made to ensure that the witness is not distressed but is in a positive frame of mind. Even if the witness has provided little or no information, they should not be made to feel that they have failed or disappointed the interviewer. However, praise or congratulations for providing information should not be given...

    3.87 Finally, the interviewers should report the end time of the interview on the video/audio-recording.

    115. In this case the investigating officers considered whether it may be appropriate to engage the services of an intermediary to assist their interview of A. In the event, an intermediary was not used. For the father, Miss Hepworth criticises that decision.

    116. The ABE guidance addresses the question of when it may be appropriate to use an intermediary when interviewing a child. The guidance advises that,

    '...as a general rule of thumb, an intermediary may be able to help improve the quality of evidence of any child who is unable to detect and cope with misunderstanding... i.e. if a child seems unlikely to be able to recognise a problematic question or tell the questioner that they have not understood, assessment by an intermediary should be considered...'

    117. Miss Hepworth also criticises the decision of the interviewing officers to permit the mother to be present in the monitoring room during the course of the interview. Although the ABE guidance highlights the importance of the monitoring role it provides no guidance as to those who should not be present observing the interview. The guidance advises that,

    2.184 The presence of an interview monitor is desirable because they can help to ensure that the interview is conducted in a professional manner, can assist in identifying any gaps in the witness's account that emerge, and can ensure that the witness's needs are kept paramount. Careful consideration needs to be made with regard to whether the interview monitor is present in the interviewing room itself (in the event of which they might effectively be regarded as being a 'second interviewer'), or in the adjoining room with the monitoring equipment (in which case they might effectively be regarded as being an 'observer')...

    2.185 Regardless of who takes the lead, the interviewing team should have a clear and shared remit for the role of the interview monitor...the interview monitor has a vital role in observing the lead interviewer's questioning and the witness's demeanour. The interview monitor should be alert to interviewer errors and apparent confusions in the communication between the lead interviewer and the witness. The interview monitor can reflect back to the planning discussions and communicate with the lead interviewer as necessary...'

    Local Guidance

    118. In February 2011 the seven local authorities in the West Midlands area (Birmingham, Coventry, Dudley, Sandwell, Solihull, Walsall and Wolverhampton) and the West Midlands Police signed The West Midlands Protocol - Child Protection Enquiries and Related Criminal Investigations. The Protocol begins with a very clear statement of commitment:

    'This protocol has been agreed...as a framework for joint agency working in child protection and safeguarding. Staff that are or may be involved in the protection of children need to have a working knowledge of this document. They should refer to the relevant sections as required and are expected to adhere to this protocol in their working practice.

    To achieve effective working together and support the delivery of this protocol all agencies will adopt a joint approach at a strategic level and participate in joint training.

    Each agency signing up to this joint protocol is expected to generate local procedures that will reinforce this protocol or incorporate it into existing procedures.'

    119. Section 10 of the protocol is headed 'Achieving Best Evidence (ABE) Interviews with Children'. So far as is material, it advises that,

    '...When it is necessary to ABE interview children, each interview must be subject of careful planning and include an assessment of whether the interview is likely to be completed over one session or if multiple sessions will be required.

    The role and responsibility of each agency should be discussed and agreed in a planning meeting prior to the interview of the child. Roles should be decided in order to ensure the child is provided with the most valuable opportunity to give their evidence...

    Where communication with a child for whatever reason may be complex, early consideration must be given to use of an intermediary.'

    120. Section 13 of the protocol is headed 'Strategy Discussions'. So far as is material, it advises that,

    'The strategy discussion is the primary mechanism through which professionals can discuss and determine the best course of action for a child.

    All Section 47 referrals and any Section 17 referral that involves the suspicion of a criminal offence, will be subject of an early strategy discussion/meeting between the police and children's social care. The discussion will involve a minimum of a detective sergeant from the PPU and a manager from children's social care.

    In all cases of alleged sexual abuse a paediatrician should be invited to attend the strategy meeting or be part of the strategy discussion and where this is not possible their views established and used to inform the discussion and agreed actions...

    Where a joint investigation takes place, the strategy discussion/meeting will also determine the role the social worker will play in the ABE interview...'

    Dorset Children's Social Care

    121. I referred earlier to the referral made by Cafcass to Dorset Social Care and to their decision, following an initial assessment, to take no further action and to close their case file. In light of the findings I am invited to make, it is appropriate to set out the social worker's analysis in full. He says that,

    'A referral has been received from a CAFCASS officer after she had received information from A's Mother, that A has been displaying sexualised behaviour both verbally and physically, which she appeared to be indicating, is associated with some sexual behaviours/preferences of [the father].

    [The mother] was clear that A had not made any specific allegations against [the father] and that during the 7 or 8 months [the mother] and [the father] lived together, she never saw any evidence to suggest [the father] had any sexual interest in Children.

    CAFCASS have checked Police Records, there is no information to indicate [the father] is a sexual risk in any way to either children or adults.

    Neither Maternal or Paternal Grandparents have seen any concerning verbal or physical behaviour by A. Maternal Grandmother partially supported [the mother's] claims but has not observed any behaviour which raises my concerns.

    Neither Health or the nursery have noted A to exhibit any concerning verbal or physical behaviour.

    Health, the nursery and the Social Worker have all observed positive interaction between A and [the father].

    The Social Worker undertook a direct work keep safe session with A. A did not disclose anything to raise the concerns of the Social Worker. Her body language indicated embarrassment at times but this was wholly appropriate.

    [The father] and [the mother] currently appear to have an acrimonious relationship and are in the latter stages of a custody dispute within the family court system. Both parents have made allegations and counter allegations against each other.

    A's needs appear to be met appropriately by both parents. There is evidence of emotional upset post change of contact but this is to be expected in the circumstances.

    A presents as a polite little girl with advance cognitive development for he age, she was a pleasure to interact with.

    [The mother] is the only adult who is alleging to have witnessed any concerning behaviour by A. Although I am not dismissing [the mother's] allegation's (sic) there is no evidence to indicate that A is at risk in any way sexually from [the father] or indeed herself. If further evidence or concerns were to be raised by other agencies/family members there may be a need for further assessment.

    At this time I recommend this case close with no further action taken.'

    122. On 5th May 2011 EF notified Coventry children's social care that Dorset Social Care was closing its file.

    Coventry Children's Social Care

    123. The allocated Coventry social worker is ST. ST has prepared one written statement dated 10th June 2011. She was not called to give oral evidence. I therefore proceed on the basis that there is no challenge to the history she records in her statement.

    124. Coventry social care's first involvement in this case was on 18th April when a referral was received from the mother's GP. According to ST the doctor,

    '3.3 ...advised that she was concerned for A as [the mother] had been to see her and asked if it was normal childhood behaviour for children to put their thumbs up their anus as this is what A was doing. [The doctor] said that [the mother] also told her that A has said she does this when daddy tickles her fairy. [The doctor] did not see or examine A.'

    125. On 4th May 2011 Coventry children's social care received a referral from Detective Sergeant Clare Arden at the Child Abuse Investigation Unit. Once it became clear that Dorset Children's Social Care had an open case file it was agreed that Coventry children's social care did not need to take any action at that point in time. The next day, 5th May, Coventry children's social care was informed by EF that Dorset Social Care would be closing its case file.

    126. There can be no doubt that the police were well aware of the fact that ST was the allocated social worker long before the ABE interview on 25th May. ST notes that on 10th May she had a telephone conversation with DC Boon. On 12th May she had a telephone conversation with DC Thompson. So far as that conversation is concerned, ST records that,

    '4.10 On 12/05/11 I had a conversation with DC Rachel Thompson...Rachel said that the police planned to interview A under guidelines for Achieving Best Evidence...I advised that social care would not visit A until such time that she has been interviewed, she agreed.'

    127. It appears from ST's statement that she had no further dialogue with the investigating officers DC Boon and DC Thompson until after the ABE interview on 25th May. She was not involved in the planning for the ABE interview.

    128. A strategy meeting had been held on 6th June. DC Boon and A's health visitor attended. ST reports that,

    '4.33 ...The outcome of this meeting was that [the mother] was taking appropriate action to protect A; she had enrolled A in a nursery which she was attending. [the mother] has stated that she was willing to work with agencies. There was no evidence to suggest that [the mother] had relapsed in her alcohol dependency issues.'

    The police investigation

    129. The police investigation in this case has been unsatisfactory.

    130. Detective Constable Rachel Thompson and Detective Constable Georgina Foster (now Gray) are West Midlands Police officers assigned to the Child Abuse Investigation Unit. They met with A at the mother's home on 4th May 2011, the day after the mother had reported her concerns to the police.

    131. The police Vulnerable/Intimidated Witness Investigation Log states that this first visit on 4th May was a joint visit. DC Thompson concedes that the expression 'joint visit' usually refers to a visit made jointly by the police and a social worker. No such joint visit has taken place in this case. An entry in the police log for 4th May reads,

    'Call to WX [Coventry children's social care] they cannot conduct a [joint visit] as the case is open to Dorset, unless Dorset request them to...Call from EF [Dorset social worker]. He is happy for us to revisit A - he will contact WX and ask her to attend.'

    132. DC Thompson says that she made a second visit to the mother's home and spoke to A again. This time she went alone. She could not recall the date of that second visit. An entry in the police log on 10th May records that a telephone call was made to the mother to arrange a visit the next day. On 11th May a further entry in the log suggests that that visit did not take place until 12th May. The record of that visit states,

    '...again appeared a very confident child, ahead of her age...A showed me some of her toys and stated she was staying with mummy for a few days and she hadn't seen daddy. She then stated "You know what I said about daddy rubbing my bum, mummy got it wrong, he rubs my bum and tickles my fairy". I explained that A had told me daddy tickles her all over. A stated "its different when he tickles my fairy"...'

    133. As I noted earlier, it is clear that DC Thompson knew of ST's involvement more than two weeks before the ABE interview. An entry in the police log on 10th May, in DC Thompson's hand, notes that a telephone call had been received from Coventry social worker, ST. There was sufficient time for the police to have actively involved ST in planning the ABE interview and to have invited her to attend the interview. They did neither. An entry in the police log on 17th May refers to a telephone call to ST and records that 'she is happy that we are leading this matter...'.

    134. By way of explanation for the failure to involve ST, DC Thompson says that it was her understanding that the case was, as she put it, 'between' two different local authorities in Dorset and Coventry. She was 'pretty certain' that a call had been made to social services. She was also 'pretty certain' that no Coventry social worker had been allocated. These comments do not sit easily with the entries in the police logs concerning contact with Coventry children's social care. I found DC Thompson's explanation for the lack of inter-agency involvement to be less than convincing.

    135. That is the background which led up to A's ABE interview. That interview was unsatisfactory in a number of respects. The rapport stage of the interview was extremely brief. One would normally expect the rapport stage to involve some discussion with the child to establish that the child understands the difference between truth and lies. In this case, that was completely absent. DC Thompson says that this had been dealt with in the Family Room immediately before the interview began. She conceded that this should have been recorded in the police log. It wasn't. She did not accept that her failure to deal with truth and lies on camera amounted to a deficit in the interview. I am in no doubt that is was a deficit.

    136. DC Thompson said that the training she had received indicated that if a parent had already provided a written statement before the ABE interview took place then there was no reason why that parent could not sit in the monitoring room during the interview. The mother had already made a Criminal Justice Act statement. DC Thompson could therefore see no reason why the mother should not have been present in the monitoring room during A's ABE interview. She made no reference to the fact that the mother had made a second Criminal Justice Act statement on 7th June.

    137. DC Thompson was unable to offer a convincing explanation for the mother and A having been present in the monitoring room when she checked with the monitor (DC Boon) whether she had missed anything (ABE guidelines paragraph 3.83). It is clear that the mother herself had pointed out that DC Thompson had not asked A about 'poke hugs'. DC Thompson accepted such conversations should not normally happen within earshot of the subject child.

    138. I asked the officer about the planning for the ABE interview. She told me she had met with the officer in charge of the investigation, DC Boon, to discuss how the interview should be conducted. That discussion was not recorded in the police log.

    139. All of these failings raise issues of training. DC Thompson said that she has been a member of the Child Abuse Investigation Unit since around 2006. She received ABE training in 2009. Notwithstanding the updating of the ABE guidance in 2011 she has not received any refresher training on conducting ABE interviews.

    140. I noted earlier that by 19th July the Crown Prosecution Service had decided not to prosecute the father. By that point the police investigation had come to an end. It is surprising, therefore, to find that it was not until 24th November 2011 that DC Thompson completed her Criminal Justice Act witness statement.

    141. DC Thompson's witness statement is brief. It reads,

    'On Wednesday 4th May, I attended 21 Beaconsfield Road, Stoke, Coventry in company with DC 9945 Foster. The purpose of the visit was to speak to a child by the name of A...to assess whether A would be able to take part in a video interview as she had made disclosures to her Mother...in relation to sexual abuse from her father.

    Whilst speaking to A in the prescence (sic) of her mother she seemed relaxed and happy to talk about general things regarding her favourite toys, and her family makeup - ie who she lives with. A came across as a very intelligent child for her age who was able to understand and hold a conversation. She was able to correct DC Foster and myself if we got something wrong and her vocabulary exceeded that of most 3 year children I have had dealings with. During the visit, when asked any specific questions in relation to her allegations, As (sic) persona changed and she appeared quiet and withdrawn, she appeared to want to change the direction of the conversation in order to avoid speaking about it, this led us to the conclusion something may have happened to A. As (sic) mother was present and did not prompt A in any way when speaking to us.

    During the visit, I left the room in order to speak with As (sic) mother, I left DC Foster speaking with A as she seemed comfortable. I was later informed by DC Foster that A had told her 'Daddy had rubbed her bottom'. A decision was made that A was capable of giving a video interview which she did at Coventry Central Police station, and was consistent throughout.'

    142. DC Foster confirms DC Thompson's account of the home visit made on 4th May. As was the case with DC Thomspon, DC Foster's Criminal Justice Act witness statement was not prepared until four months after the police investigation was closed. Her statement is dated 16th November 2011. In it, she says that,

    'As soon as A became a bit more comfortable with me [the mother] and DC Thompson went downstairs and I remained with A, it was sometime after [the mother] had left the room that A informed me that "Daddy had rubbed her bottom".'

    143. Although the initial home visit had been made by DC Thompson and DC Foster, it was Detective Constable Melanie Boon who was officer in charge of the investigation. DC Boon has made a Criminal Justice Act witness statement. Her statement is dated 21st November 2011. Her only encounter with A was on the day of the ABE interview. In her statement, she says that,

    'On 15th May 2011 A was interviewed by means of Achieving Best Evidence Interview, by DC Thompson. I was present in the monitor room taking notes. This was the first occasion that I met A. She gave a clear and consice (sic) account which remained consistant (sic) throughout. She was a confident child and her vocabulary was of a high level for her age. Throughout the investigation A remained consistant (sic) with her account.'

    As I noted earlier, it is clear that there was more than sufficient time for the police to have notified Coventry children's social care of the arrangements for the interview.

    144. DC Boon said that this had been a joint investigation together with social care. She said she had been in constant contact with Dorset Social Care and with Coventry Social Care. She could not remember whether she had informed Coventry Social Care about the date of the ABE interview. The police logs provide no help on these issues. The logs do, though, contain an entry on 21st May in DC Boon's hand stating,

    'I have arranged the ABE interview for Wed 25th May at 1100 hours in line with DC Thompson's shifts and [the mother's] availability.'

    The ABE interview

    145. The ABE interview took place on 25th May. The interview did not contain any confirmation of date, time, location or persons present. The rapport stage of the interview was minimal. There was no discussion about truth and lies. There was a very brief discussion about a watch A had received as a birthday present on her fourth birthday a few days earlier. The interview then immediately goes into a discussion about A's disclosure:

    Q: Four, so you're four again aren't you. I remember, keep forgetting. Ok, do you remember what we've come here to speak about today? Ok, can you tell me what that is? What is it we've come here to talk about? What is it you've come to tell me today?

    A: About daddy rubbing my bum.

    Q: About daddy rubbing your bum.

    A: And tickling my fairy

    Q: And ticking my fairy. You've got a good memory haven't you. I see. And can you tell me then what daddy does? What does he do?

    A: He rubs my bum and tickles my fairy.

    Q: Rubs your bum and tickles your fairy, does he? Ok...

    146. This pattern of A saying what the father does to her and the interviewing officer immediately repeating her words is a pattern that continues throughout the interview. The interview continues,

    Q: ...So you were telling me about your dad. Tell me about what does he do then? How does he do it? Don't need to show me, just need you to tell me A, how does he do it?

    A: He

    Q: Can you remember?

    A: He just does little strokes

    Q: He does little strokes. What does he use to do little strokes?

    A: His hand

    Q: His hand. Does he? And you say, he does, and does, and does he do that on your fairy and your bun?

    A: No he tickles my fairy.

    Q: Does he?

    A: See, and he rubs my bum

    Q: He rubs it, ok. And do you have any clothes on when he does this?

    A: Yeah but he puts my hand down my bum

    Q: He puts your hand down your bum?

    A: No his hand

    Q: Oh silly me. He puts his hand down your bum, oh ok. So what are you normally wearing then?

    A: Pyjamas

    147. The interview then moves away to other topics before returning to further discussion about the father:

    Q: ...So lets think about what you were saying about daddy, shall we just carry on talking about daddy so I understand, 'cause otherwise, you know, I'll forget.

    A: Yeah

    Q: I know. So let's say, so what were we saying? You tell me what we were saying, I can't remember. Let's see how good your memory is. What were we saying about daddy

    A: He rubs my bum and tickles my fairy

    Q: Ok. Where were we saying that that happened sorry?

    A: At daddy's

    Q: At daddy's...

    ...

    Q: And whereabouts in the house then does that happen?

    A: In his bedroom, 'cause I come in his bedroom in the night

    Q: Do you? So you go in his bedroom in the night. Why do you do that then?

    A: I don't know

    Q: You don't know. But you do, you go in his bedroom in the night

    A: I think it's 'cause I, I, I, I sometimes wide awake

    148. As the interview progresses A clearly loses concentration and goes on to talk about other things. DC Thompson tries to bring her back to the central issue:

    Q: ...Do you wear knickers A when daddy rubs your bum and tickles your fairy?
    A: No

    Q: You're not, ok. And does daddy say anything when he does it? No. Has daddy ever said anything while he's done it?

    ...

    Q: ...you know when daddy rubs your bum and tickles your fairy

    A: Yeah

    Q: What does that feel like to you?

    A: It's tickly

    Q: It feels tickly does it? OK, and does it make you happy or sad, or how does make you feel?

    A: Happy

    Q: Happy, ok

    A: And it makes me laugh

    Q: It makes you laugh...

    ...

    Q: ...So does daddy tickle you anywhere else? No?

    A: Just rubs my bum and tickles my fairy

    Q: Just rubs your bum and tickles your fairy, ok, alright. Shall we go and speak to your mum for five minutes and just have a little chat with Mel and see if they're ok?

    149. At that point the first section of the interview ends. DC Thompson and A went into the monitoring room. DC Boon and the mother were there. After some conversation DC Thompson and A return to the interview room and the interview continues.

    150. This time, A took a large doll into the interview room with her. She announces to DC Thompson that the doll is to be called A and that she is to be called Rosie. DC Thompson went along with this imaginative play, addressing A as Rosie:

    Q: Hello Rosie. What I'd like to speak to you about now is a little bit like what you're doing. Your mummy keeps telling me that you lie backwards and you life your legs up.

    A: I do this

    A then proceeded to give a demonstration. It is clear that as part of the demonstration A was about to pull her trousers down until DC Thompson told her that that wasn't necessary. DC Thompson then asks,

    Q: ...What does daddy do then?

    A: He rubs my bum and tickles my fairy

    Q: Ok. What about when you lift your legs up and you roll backwards, why do you only do that at daddy's?

    A: Because mummy doesn't do it. Mummy don't do it, but daddies do

    Q: And what does daddy do? Tell me what daddy does

    A: He rubs my bum and tickles my fairy

    Q: While you lie backwards when you lift your legs up he does that?

    A: No, I just do that and then and then I do that when he's...my fairy

    151. Again A lost concentration. DC Thompson later tries to bring A back to the discussion about the father's behaviour:

    Q: Oh I see. You know when, 'cause we're here to talk about daddy aren't we, and you know when you said about lying down and lifting your legs up, what does daddy do when you're lifting your legs up?

    A: He rubs my bum and tickles my fairy

    Q: Ok

    A: You never remember do you Rachel

    Q: Where does that happen then, when you're lying down?

    A: At daddy's

    Q: At daddy's, we've said at daddy's. But when you lie back and you lift your legs up, where in the house are you when that happens?

    A: In the bedroom. You never, ever learn

    Q: Oh is it at the same time?

    A: Yeah

    152. I noted earlier that during the break in the interview the mother reminded the police officers that they had not discussed the 'poke-hug' with A. DC Thompson raised this with A during the closing part of the interview:

    Q: ...Your mummy's told me something else about you, 'cause me and your mummy have had a little chat, she tells me that you've mentioned something called a poke hug. Do you know what that is? No. Have you ever said that before? No. Oh ok, maybe I've got that wrong then, if you've not said that. I thought you had. You haven't...

    Psychological evidence

    153. Dr Robyn Holliday is a chartered forensic psychologist. She is a senior lecturer in psychology in the University of Leicester. She has published journal articles concerned with the forensic interviewing of young children aged 4 to 5.

    154. Dr Holliday has read the relevant background papers to this case. She has also watched the DVDs A's ABE interviews. In her written report Dr Holliday highlights some of the deficiencies in the ABE interview to which I have already referred. She says that,

    'Some aspects of the ABE interview protocol were missing. Specifically, the truth and lies ceremony was not conducted at the beginning of the interview session. This is a crucial omission, and as a result we cannot know whether A understood that she must tell the truth...

    An important part of the beginning phase of an ABE interview also is the establishment of rapport between the interviewer and the interviewee. There is no evidence in the transcripts of establishment of rapport. However, on one of the DVDs I did hear the interviewer state to A that they had chatted outside the interview room in the presence of [the mother] prior to the interview. I am unable to determine what the content of this discussion were.

    Interviewers who conduct ABE interviews with children should use age-appropriate questions. Part of the rapport phase of an ABE interview is to assess the child's level of cognitive development to ensure that the questions they ask are understandable by that particular child.

    It is my opinion that the questions asked of A in the two interviews were at times too complex for a child just 4 years old. For example, there is evidence of multi-part questions...and leading questions...'

    155. Dr Holliday describes some features of the interviewing process that may undermine the reliability of the evidence given by the child in interview. She refers in particular to the problems that can arise from interviewer bias and repeated questions:

    'One particular form of suggestive questioning is interviewer bias - blind pursuit of a single hypothesis of what an interviewer thinks happened to the child without considering alternative hypotheses. Such interviewers mould the interview accordingly to fit their apriori beliefs about what happened.

    Another factor that can impact negatively on very young children's memories is repeated questioning of the child, that is asking the child to relate the details of an alleged assault on a number of occasions before and after the forensic interview or within the forensic interview.'

    156. So far as concerns this last point, in her oral evidence Dr Holliday made the point that the mother's concerns go back several weeks prior to the ABE interview and that that, together with the mother's covert recording of a conversation between herself and A, does tend to suggest that A has been questioned repeatedly.

    157. Dr Holliday then goes on to say that,

    'It is my opinion that the interviewer who conducted the two ABE interviews with A was doing so with the explicit purpose of getting A to disclose more information about [her father] rubbing her bottom and tickling her fairy. Indeed, she states this at the beginning of the interview and returns to this frequently throughout both interviews. In so doing, the interviewer repeats her questions and repeats what A has said throughout. A however, sticks to her declaration that Daddy rubs her bottom and tickles her fairy...

    When a young child is asked the same question on a number of occasions both within interviews/sessions and between interviews/sessions [sometimes] they will change their responses to fit what they think the adult wants them to say. If a question is repeated the child may think that their first response must have been wrong and they change their response accordingly.

    It is my opinion that the interviewer used authority bias in the last statement on p155 of the interview to pressure A to give more information. She said, "Mummy's told me something else about you, 'cause me and your mummy have had a little chat, she tells me you have mentioned something called a poke hug." However, A denied this.'

    158. In her oral evidence Dr Holliday again made the point that repetition of questions put to a very young child usually results in the child changing her responses. Such a child acquiesces and tries to give the responses which she thinks are being requested. Dr Holliday agreed that that in the light of that general proposition it is striking that in this case A does not change her answers despite the police officer's repetition of questions. A's position remained the same throughout the interview, that the father 'rubs my bum and tickles my fairy'.

    159. Dr Holliday also gave evidence concerning the psycho-sexual development of young children. In her report, she says,

    'Although I cannot determine whether A's behaviours and statements are true or false, and indeed it is not my place to do so, it is important, given the nature of the allegations to give a brief account of what is considered to be normal psychosexual development. The scientific literature agrees that the following behaviours are typically displayed by young children. Namely: exhibitionism and voyeurism with other children and adults is common in 4-6 year olds, undressing, showing bottom, or sexual exploration games in boys and girls by the age of 4 years, and asking about sex by boys and girls by the age of 5 years; genital interest increases in the 2-5 year period and genital play is common; flirtatious and seductive behaviours, impersonating mannerisms of parents, older siblings, TV characters; and masturbation is very common between 3 and 6 years (Friedrich et al, 1991, Pediatrics). I note that A spent some time with an older male child of EC.'

    160. Dr Holliday said that it is not unusual for a child of this age to pull their pants down and display their genitals. Research shows that 35.8% of boys aged between 2 and 6 will show their genitals in public.

    161. Dr Holliday was scrupulously clear that it is not her role to determine whether the apparent disclosures made by A in her ABE interview are true. However, she was equally clear that despite the shortcomings in the way the interview was undertaken there was nothing in the interview that enabled the conclusion to be drawn that A was not telling the truth.

    The law

    162. The mother seeks eleven findings against the father. With respect to each finding, the burden of proof rests upon the mother. The standard of proof is the balance of probability standard.

    163. The balance of probability standard as it applies to family proceedings was clarified by the House of Lords in In Re B (Children)(Fc) [2008] UKHL 35. Baroness Hale said

    '31. ...Day after day, up and down the country, on issues large and small, judges are making up their minds whom to believe. They are guided by many things, including the inherent probabilities, any contemporaneous documentation or records, any circumstantial evidence tending to support one account rather than the other, and their overall impression of the characters and motivations of the witnesses. The task is a difficult one. It must be performed without prejudice and preconceived ideas. But it is the task which we are paid to perform to the best of our ability...

    70. ...I would...announce loud and clear that the standard of proof in finding the facts necessary to establish the threshold under section 31(2) or the welfare considerations in section 1 of the 1989 Act is the simple balance of probabilities, neither more nor less. Neither the seriousness of the allegation nor the seriousness of the consequences should make any difference to the standard of proof to be applied in determining the facts. The inherent probabilities are simply something to be taken into account, where relevant, in deciding where the truth lies.'

    164. It was also made clear in Re B that with respect to any particular finding of fact sought, the court is not entitled to come to the conclusion that, on the one hand, the party seeking that finding has failed to establish that fact on the balance of probability but that, on the other hand, the court cannot discount completely the possibility that the circumstances may be as alleged by the party seeking that finding. As Lord Hoffman put it

    '2. If a legal rule requires a fact to be proved (a "fact in issue"), a judge or jury must decide whether or not it happened. There is no room for a finding that it might have happened. The law operates a binary system in which the only values are 0 and 1. The fact either happened or it did not. If the tribunal is left in doubt, the doubt is resolved by a rule that one party or the other carries the burden of proof. If the party who bears the burden of proof fails to discharge it, a value of 0 is returned and the fact is treated as not having happened. If he does discharge it, a value of 1 is returned and the fact is treated as having happened.'

    165. In a case such as this, where I have found that at times both parents have been economical with the truth, it is also appropriate that I should remind myself of what is often referred to in criminal proceedings as a 'Lucas direction'. In A County Council v K, D and L [2005] 1 FLR 851 Mr Justice Charles said that,

    '[28]...in determining the facts, a court should have regard to the guidance given in R v Lucas (Ruth) [1981] QB 720 and R v Middleton [2000] TLR 203. As appears therefrom, a conclusion that a person is lying or telling the truth about point A does not mean that he is lying or telling the truth about point B. Also I accept that there can be many reasons why a person might not tell the truth to a court concerned with the future upbringing of a child. Further, I of course recognise that witnesses can believe that their evidence contains a correct account of relevant events, but be mistaken because, for example, they misinterpreted the relevant events at the time or because they have over time convinced themselves of the account they now give.'

    166. A particular concern that arises in this case is the weight to be attached to the ABE interview. My attention has been drawn to two recent decisions of the Court of Appeal. TW v A City Council and others [2011] EWCA Civ 17 concerned a four and a half year old girl, LR, who, it was alleged, had been sexually abused by TW, a twenty-four year old man. The allegation was of inappropriate touching of LR's genitalia. After making her disclosure LR took part in an ABE interview. TW was charged with one count of sexually touching LR contrary to section 7(1) of the Sexual Offences Act 2003. He was acquitted. He had to face the same allegation within care proceedings relating to LR. The first instance judge found the allegation proved.

    167. In granting permission to appeal, Black LJ described the ABE interview as 'significantly flawed'. The flaws in the process included a lack of information as to the planning for the interview (if, indeed, there had been any planning), the use of leading questions, the giving of inappropriate prompts and the use of what the Court of Appeal described as 'confusing questions'.

    168. In giving the leading judgment, Sir Nicholas Wall P. said,

    43. We think it fair to say, however, that the principal basis upon which the judge reached her decision of fact on whether LR was abused by TW was LR's ABE interview. In paragraph 77 of the second version of the judgment she says she has weighed all the evidence very carefully and noted the deficiencies in the interview, "But", she adds:

    "I remain impressed by what (LR) said and the way she presented. She was not a "yes" girl agreeing to everything that was put to her and she clearly followed and thought about the questions asked of her."

    49. ...We deal first with the ABE interview. We have cited substantial extracts from the Guidance because, in our view, the ABE interview has no evidential value...

    50. In our view the inadequacies of the ABE interview are manifest. Even allowing for a broad margin of latitude to anyone conducting such an interview, the departures from the Guidance are self-evident and glaring. There is, on the face of the interview (1) an inadequate establishment of rapport; (2) absolutely no free narrative recall by the child; (3) an abundance of leading questions, and (4) no closure. Everything is led by the officer, and nothing is introduced into the interview by the child.

    51. We are prepared to leave the first item in the preceding paragraph on one side, as there may have been more rapport before the transcript begins. There may equally have been some planning; although - given the dates and the rapid sequence of events - we think it unlikely. However most importantly, and as is apparent from the extracts we have cited, every proposition either resulted from a suggestion made by the officer...or from a leading question...

    52. As we have already pointed out, the Guidance makes it clear that the interviewer has to keep an open mind and that the object of the exercise is not simply to get the child to repeat on camera what she has said earlier to somebody else. We regret to say that we were left with the clear impression from the interview that the officer was using it purely for what she perceived to be an evidence-gathering exercise and, in particular, to make LR repeat on camera what she had said to her mother. That, emphatically is not what ABE interviews are about and we have come to the view that we can place no evidential weight on it.

    53. Against this background, the judge's assessment that LR was a forthright child capable of standing up to and overcoming incompetent interviewing does not, in our judgment, stand up to analysis. Of course it is open to a circuit judge to reach a different conclusion on the balance of probabilities from a jury applying the criminal standard of proof. But if this is to happen, it seems to us that it is not sufficient for a judge to rely primarily on the fact that the child is able, when being interviewed in a thoroughly unsatisfactory manner and contrary to the Guidance, to make a number of inculpatory statements. A clear analysis of all the evidence is required, and the child's interview must be assessed in that context. The judge needs to explain how and why the criminal trial came to the opposite conclusion, and to look carefully at the evidence available in each set of proceedings.

    169. The second case is In the matter of R (Children) [2011] EWCA Civ 1795. In this case a local authority brought care proceedings in respect of two girls aged 6 and 3. An allegation was made that both children had been sexually abused by their father with the knowledge of their mother. At a finding of fact hearing, that allegation was found to have been proved. As in the earlier case, there were acknowledged deficiencies in the ABE interviews of these children. In particular, the trial judge noted that the ABE interview had been conducted without adequate preparation and contrary to the ABE guidelines particularly in asking some closed questions and some leading questions. Notwithstanding the deficiencies in the interview, the hearing judge found that the father had sexually abused his children. Giving the leading judgment in the Court of Appeal, Hedley J said this:

    17. Then, secondly, Mr Geekie [counsel for the father] concentrates on the question of the ABE interview. It is accepted to be deficient; it is accepted that for that reason alone it is not necessarily to be treated as valueless, but the deficiencies should excite specific caution in anyone seeking to use those ABE interviews which have further to be seen in the context of the difficulties that arise from the influences operating on the child at the time; and thus drawing those matters together, says Mr Geekie, the learned judge was simply not entitled to go beyond the elucidation of those difficulties and reach a finding based on his impression of the child in the ABE interview...

    26. I have...reached the clear conclusion that the judge was entitled to make the findings that he did and that there is simply no basis on which this court can legitimately interfere with those findings. My principal reasons for reaching that conclusion would be these. First, the judge has clearly set out [in] his judgment and has clearly kept in mind all the issues which required the exercise of very considerable caution. Secondly, none of those issues, including the deficiencies in the ABE, are of themselves sufficient to prevent reliance on the statements of the child in the ABE. It is apparent that the learned judge had all those matters in mind when he reached the decisive moment of balancing the reasons for caution against the compelling effect that the ABE had had on him at a time when he was viewing it not for the first time but for the second, it having been viewed in court on the first occasion with all parties present.

    170. These two appeals were heard by different constitutions of the Court of Appeal. It is not apparent that the decision in TW v A City Council was drawn to the attention of the court at the hearing of In the matter of R (Children). However, when the court is called upon to determine whether a child has been sexually abused a number of principles do appear to emerge from these two authorities:

    (1) Achieving Best Evidence sets out clear guidance on the process of preparing for and undertaking an interview of a child. As a matter of good practice, and in order to ensure that the child is enabled to disclose her story, that guidance should be followed in all cases.

    (2) Where an ABE interview is significantly flawed such that it is of no evidential value, it is not possible to make a finding of sexual abuse based on that interview.

    (3) An ABE interview is not to be deemed to be of no evidential value merely because the ABE guidance has not been followed to the letter. Whether failure to comply with that guidance renders an ABE interview of no evidential value will depend upon the nature and extent of any non-compliance with the guidance.

    (4) The fact that an ABE interview is of no evidential value does not prevent the court from making a finding of sexual abuse if there is other evidence of sufficient cogency to enable the court to be satisfied on the balance of probability that abuse has taken place.

    Discussion

    171. The context in which this finding of fact hearing takes place is a longstanding (two year) dispute between these parents concerning issues of residence and contact. The father's position, put briefly, is that the mother's allegations of sexual abuse are false and have been raised by her in order to further her application.

    172. Earlier in this judgment I noted that the mother accepted that it is appropriate for the court to make the first and third findings sought by the father. I concluded, on the evidence, that the father has not made out his case in respect of his second proposed finding.

    173. The mother's allegations against the father are the more serious. I have reviewed the evidence in considerable detail. Before I consider what, if any, findings can be made I must first say something about A's ABE interview.

    174. My concerns about the police investigation are not confined to the ABE interview itself. I am concerned about all of the failures to comply with the ABE guidance identified earlier in this judgment - that is failures before, during and after the interview. I am concerned about the lack of appropriate inter-agency co-operation. I am concerned about the fact that the Criminal Justice Act statements of the officers were not prepared until some four months after the Crown Prosecution Service had informed the mother that the father would not be charged. As I indicated earlier in this judgment, there are a significant number of training issues arising from this case. It is with that in mind that I direct that a copy of this judgment be made available to the Chief Constable of the West Midlands Police and to the officer in charge of the Coventry Child Abuse Investigation Unit.

    175. Having made those points, what weight, if any, should be attached to this ABE interview? Despite its manifest shortcomings there are some positives which actually arise directly because of the shortcomings. As Dr Holliday accepted, during interview A was steadfast in her repetition of her claim that the father 'rubs my bum and tickles my fairy'. Research suggests that faced with repeated questioning on a particular issue many children will change their story believing that that is what the interviewer requires. A did not change her story. She repeatedly said that daddy 'rubs my bum and tickles my fairy'. She did not deviate. She was not distressed. She was not reticent.

    176. The story A told during interview is consistent with evidence given by the mother and MGM. It is not only the story she told but also A's behaviour during interview that resonate with the evidence given by mother and grandmother. When talking about what her father did to her A lay on her back on the sofa in the interview room, lifted her feet over her head and was about to take her pants down when stopped by the officer. When asked to demonstrate where daddy tickles her A points not to a position high up in her groin (as the father did) but clearly points to her vagina.

    177. I noted earlier that in In the matter of R (Children) Hedley J made that point that the ABE interview was not necessarily to be treated as valueless notwithstanding the fact that the interview was accepted to be deficient. As he put it, the deficiencies should, though, 'excite specific caution in anyone seeking to use those ABE interview'.

    178. In the case with which I am concerned, notwithstanding the deficiencies in the ABE interview, I do not regard the interview as valueless. I accept that if the ABE interview were the only evidence available to the court then it would not be possible for a finding of abuse to be made. However, it is not the only evidence. Though I accept that the interview needs to be treated with caution, it is in my judgment both permissible and appropriate for me to consider the ABE interview along with the other evidence in the case.

    179. Apart from A's ABE interview, MGM provides support for some of the mother's evidence. Although the father believes that MGM is angry towards him (a possible motive for being untruthful or exaggerating the truth) he also conceded that she is an honest woman. I found her to be an impressive witness. I am satisfied she was telling me the truth on those issues to which she is a first-hand witness. I am satisfied that she is a reliable historian. She corroborates some of the mother's evidence. On those issues I can therefore be satisfied that the mother's evidence is also reliable. If the mother's evidence on those issues is reliable then I must consider whether it is safe to regard her as a reliable witness on those issues where she is the only witness. Notwithstanding that there is some evidence of the mother being untruthful to the father (for example, her text message claiming she had been admitted to the Caludon Centre) I am satisfied that it is safe for me to regard her as an essentially reliable witness. As between the mother and the father I am in no doubt that the mother is the more reliable and honest witness.

    180. I am now able to turn to my findings in respect of the eleven allegations contained in the mother's Scott schedule. I propose to group them together in the same way that I grouped them together for the purpose of my review of the evidence.

    First and fifth findings

    181. The mother seeks a finding that A has seen a tattoo on CA's bottom. It matters not whether the tattoo was of a 'star' or a 'little devil' or whether the tattoo was on CA's bottom or 'on the top of her bottom near her hip' as the father suggests. I am satisfied that A has seen this tattoo.

    182. The father accepts that A has seen him naked. He also accepts that when she has been in his sole care there have been times when A has seen him at the toilet.

    183. Notwithstanding those findings, I am unable to conclude that this amounts to of a lack of sexual boundaries in the father's home. Seeing a parent naked is not of itself an indication of lack of sexual boundaries.

    Second, sixth and ninth findings

    184. The mother seeks a finding that since January 2011 A has consistently exposed herself suggesting that it was what she did when with her father; that A has asked her mother to 'rub her bum and fairy', saying that she likes it; that one evening at bedtime A pulled down her pyjamas and asked her mother to 'rub her bum'; that A states that no-one touches this area by Daddy; that A has alleged that the father 'rubs my bum and tickles my fairy' and that this is 'different to a normal tickle'.

    185. The father is unable to gainsay any of this evidence. The mother's evidence is in part corroborated by her mother, MGM. It is also in part supported by comments made by A during her ABE interview. I am satisfied that on these issues the mother is a reliable historian. I make each of the findings sought.

    Fourth finding

    186. The mother alleges that in February or March 2011 A bent her knees up and pulled her tights down and placed her thumb inside her anus stating 'Daddy shows me what to do when he tickles me'.

    187. Leaving to one side for the moment the claim that A put her thumb inside her anus, I am satisfied that on this issue the mother's evidence is reliable. This behaviour is consistent with the 'demonstration' A gave in interview.

    188. However, the mother's allegation that A put her thumb inside her anus is more difficult. As I noted earlier, at one point the mother said that A used her finger then changed this to thumb. At one point the mother gave the impression that this had happened more than once but now it is clear that she says it happened only once. At one point she said that her mother had seen it happen but now she accepts that MGM did not see it happen. In that the mother alleges that when A put her thumb into her anus, the claim that A said that 'Daddy shows me what to do when he tickles me' this is serious. There is no corroborative evidence. It is not something mentioned or even alluded to by A in her ABE interview. I have given this issue careful reflection. I conclude on balance that the inconsistencies in the mother's evidence on this issue should not be interpreted as a sign of untruthfulness. I find that A did put her thumb into her anus as the mother describes and that she did say that 'Daddy shows me what to do when he tickles me.'

    Seventh finding

    189. The mother seeks a finding that the father visits websites the titles of which are suggestive of an interest in underage sex.

    190. A finding that the father has visited websites 'suggestive of an interest in under age sex' would, in my judgment, be meaningless. Either the father has visited websites containing sexual activity involving children or he hasn't. The evidence does not justify a finding that he has. However, although the evidence does not justify the finding sought by the mother, that does not mean that there are no issues here which are a cause for real concerns in the context of the father's relationship with A. I am concerned about the possible implications of the father's apparent obsession with pornography.

    Eighth finding

    191. The mother seeks a finding that A has 'become entrenched in open mouth kissing and poking mother's bottom'. The mother now accepts that she overreacted to A's use of the expression 'poke hug'. She accepts that it is likely to have an innocent explanation.

    192. As for the allegation about open-mouth kissing, it is not only the mother and MR who have experienced this but also the father. I am unsure what the mother seeks to imply by the use of the word 'entrenched'. I am satisfied that A has engaged in open mouth kissing of adults close to her. I am not satisfied that it has happened frequently.

    Tenth finding

    193. The tenth finding sought by the mother is that on 27th May 2011 A grabbed the mother's hand and pushed it between her (A's) legs. I have already noted that MGM describes a similar experience. I accept the mother's evidence on this issue. I make the finding sought.

    Eleventh finding

    194. Finally, the mother states that on 28th May 2011 A attempted to force her big toe on her firth foot inside her 'fairy'. This allegation is not dissimilar to the allegation that A put her thumb into her anus. That was an allegation which, on balance, I was prepared to accept. I accept this allegation too. I make the finding sought.

    Has A been sexually abused?

    195. The overarching finding sought by the mother is that the father has sexually abused A by inappropriate touching and/or by encouraging her to act in a sexualised manner and/or by failing to maintain appropriate sexual boundaries whilst she was in his care.

    196. I have already declined to make the finding sought by the mother that the father has failed to maintain appropriate sexual boundaries whilst A was in his care. I am not satisfied that the findings I have made support a conclusion that the father has encouraged A to act in a sexualised matter. The narrow yet important question which remains, therefore, is whether the father has sexually abused A by inappropriate touching.

    197. In closing submissions on behalf of the father, Miss Hepworth makes the point that for these parents, sex has played a big part in both their lives; the mother has sold it; the father has bought it; that is the background into which A came into the world. The undisputed sexual history of these two parents is of adult sexual activity. Miss Hepworth submits that the mother's case appears to be that absent an adult sexual partner the father has directed his sexual urges towards A. The mother has conflated her sexual knowledge of the father with what A has disclosed and has deduced from this that the father has paedophilic tendencies. She is wrong to do so.

    198. Though she adduced no evidence in support, Miss Hepworth submitted that men in heterosexual relationships rarely abuse their children following the breakdown of the adult relationship. Although the father has a high sex drive that does not mean that he is likely to engage in sexual abuse. Miss Hepworth concedes that the father admits to watching pornographic videos involving 18 and 19 year old girls. However, that, too, does not mean that he has sexual proclivities aimed towards young children. The father is driven by eroticism. He enjoys erotic behaviour. Miss Hepworth submits, again without any evidence in support, that sex with young children rarely arises from eroticism.

    199. Miss Hepworth described the father's evidence as quiet, composed, thoughtful and reflective. He is clearly a very concerned and loving father. Both parents are loving parents. There is no evidence from which it would be proper to deduce that the father has sexually abused his daughter.

    200. For the mother, Miss Walsh makes the point that in her cross-examination of the mother Miss Hepworth had repeatedly tried to goad the mother into saying that she believed that the father has sexually abused A. In reality, the mother was simply laying her concerns before the court. As a responsible parent she could not properly ignore A's behaviour. It is for the court to determine how A's behaviour should be interpreted and whether it amounts to evidence of sexual abuse.

    201. A's statement in her ABE interview that daddy 'rubs my bum and tickles my fairy' runs like a leitmotif throughout the whole of the evidence in this case. She said it repeatedly during her police interview. She said it to her mother. She said it to her grandmother. The fact that she does not appear to have been distressed by it - indeed, the fact that she may even have found it pleasurable - does not mean that it was not inappropriate and sexually motivated. When taken together, I am satisfied that the findings I have made not only justify a finding that A's statement that daddy 'rubs my bum and tickles my fairy' is true but that when seen in context it justifies a finding the father's behaviour in rubbing her 'bum' and tickling her 'fairy' was inappropriate and sexually motivated. I find that A has been sexually abused by her father.

Judgment, published: 10/07/2012


Published: 10/07/2012

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