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		Neutral Citation Number: [2002] EWCA Civ 978
		Case No:B1/2002/1067 PTA

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM HIS HONOUR JUDGE CLIFFE

		Queen Elizabeth II Law Courts Derby Square, Liverpool, L2 1XA
		19 July 2002

B e f o r e :

MR JUSTICE WALL
____________________

S ( A Child)

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(Transcript of the Handed Down Judgment of
Smith Bernal Reporting Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)

____________________

MR T FINCH (instructed by Messrs Watson Woodhouse,Middlesbrough) appeared for the Applicant
____________________

HTML VERSION OF JUDGMENT
AS APPROVED BY THE COURT
____________________

Crown Copyright ©

Mr Justice Wall:

1. This is an application by Mr P.S. (father) for permission to appeal against findings of fact made by His Honour Judge Cliffe on 3 May 2002 in care proceedings instituted by the North Yorkshire County Council (the local authority) in relation to father’s daughter S, who was born on 20 November 1991, and was thus some 10 years and 5 months old at the date of the hearing. The other parties to the proceedings are A.S., S’s mother, and S herself through her guardian, Sue Smith.
2. The application for permission arises from the first limb of care proceedings being heard by the judge, in which he was being asked to make findings of fact in order to decide whether or not the threshold criteria under section 31 of the Children Act 1989 were satisfied. The judge duly made findings, held that the threshold criteria had been met and gave directions for the second limb of the hearing of the proceedings which, as I understand it, is to be heard in November 2002.
3. Proceedings had been instituted by the local authority in December 1991 following what the judge described as “long standing concerns about S’s behaviour and welfare”. He then proceeded to set out the family history in some detail, and I accordingly summarise it from his judgment.
4. S’s parents married in August 1984. She is their third child. The eldest, P, who gave evidence before the judge, was born in October 1984: their second, B, was born in June 1987.
5. A reference to mother’s medical records in June 1993 indicated that there had been a long standing history of domestic violence between her and father. Furthermore, in 1994, father had been referred to a drug team due to heroin abuse, an addiction which persisted thereafter, interspersed with attempts at detoxification.
6. In July 1994, whilst there were concerns about B’s aggressive and destructive behaviour, there were, it appears, no reported concerns relating to S’s health and development.
7. In August 1995, S’s parents moved to a caravan on the A19, having gained employment at a cafe also situated on the road. In June 1996 they purchased a cafe on the A19 northbound next to the caravan in which the family was living.
8. In September 1996, at the age of 5, S began her education at the local primary school. According to the judge, the first signs of a problem in relation to sexualised behaviour from S came in January 1997, when the school doctor raised concerns with mother about S apparently getting sexual pleasure from “shuffling” on her seat. In the following year, the school doctor raised concerns regarding S’s masturbatory behaviour, and mother confirmed that S was “wiggling” on the edge of her chair for pleasure, and seemed to be pre-occupied by this activity. The school doctor contacted a consultant child psychologist, and a referral was made to an organisation called Brompton House in Northallerton.
9. S was seen by a psychologist at Brompton House. That psychologist referred her on to a consultant paediatrician, who medically examined S on 10 November 1997. The psychologist continued to see S until about April 1998.
10. In the meantime, father, who had been abusing heroin for the past four years but who had begun a detoxification programme in January 1998 relapsed again in March 1998. In July 1998, the local authority became involved with the family following an incident of domestic violence between the parents. Mother had been admitted to the Accident and Emergency Department of the local hospital, alleging that her husband had assaulted her the previous evening. She had an injury to her right foot and human bite marks on her right arm.
11. Nothing then seems to have happened until 1999, when father began another detoxification programme. In May 1999, a further referral was made to Brompton House due to concerns regarding S’s continuing masturbatory behaviour, and Brompton House continued to work with S until December 1999.
12. In September 2000, father and mother separated. Mother moved to Carlisle with B and S. P remained at the caravan on the A19. Although B initially went to Carlisle with his mother, he returned to live with his father some two weeks later.
13. In September 2000, S began to attend a local school in Carlisle. Mother began a relationship with another man, which was continuing at the date of the hearing before the judge. However, in November 2000 Social Services in Carlisle were contacted by the headteacher of S’s school following an allegation made by her that she had been left at home overnight on her own. Carlisle Social Services investigated, but no action was taken.
14. In April 2001, S visited father for the Easter holidays. She made it clear that she did not wish to return to Carlisle and it appears to have been agreed between her parents that she would remain in her father’s care. She accordingly returned to Osmotherley School in April 2001. At this point father had resumed his heroin habit, and in May 2001, requested “a quick detoxification programme”.
15. In July 2001, the headteacher at Osmotherley School raised concerns with the school nurse regarding S’s masturbatory behaviour, and father was given an appointment with Dr James, the paediatrician who had examined S in November 1997. However, father failed to take S to the appointment. Subsequently, Dr James made a referral to the local authority in relation to S.
16. In November 2001 father began yet another detoxification programme due to heroin abuse, and at the beginning of December the new headteacher of Osmotherley School contacted the local authority to raise concerns that S was constantly masturbating at school. The headteacher also raised concerns about S appearing to be rather unkempt.
17. On 10 December 2001, father informed social workers that S had disclosed over the weekend that a family friend had sexually abused her. He gave consent for the social workers to take S to an appointment with Dr James, who medically examined S and found no physical signs of abuse.
18. On 14 December 2001, S was interviewed under the memorandum of good practice by the police in relation to her allegations of sexual abuse. She named one R.G. as having indecently assaulted her. On the same day, the local authority commenced care proceedings, and on 19 December 2001, the local authority obtained an interim care order.
19. Following S’s revelations, both R.G. and father were arrested and interviewed under caution. Both denied any allegations of impropriety, and no criminal proceedings were instituted.
20. On 31 January 2001, the district judge decided that due to the complexity of the family’s background, the case should proceed initially by way of finding of fact hearing. The judge commented, with a legitimate element of criticism, that the local authority had not submitted a schedule of the findings it sought until very shortly before the hearing, and he also commented that the local authority had adjusted its position during the course of the hearing itself. In summary, however, it invited the court to find the threshold criteria satisfied on the following basis:-
21. Firstly, in relation to S’s sexualised behaviour, the local authority alleged that since September 1996 in both her conduct and speech, she had exhibited behaviour that was indicative of and consistent with past or ongoing sexual abuse. By way of example, she had indulged in persistent and obsessive masturbation, used sexually explicit language and involved other children in sexual activity. The local authority invited the judge to find that she was an exhibitionist and performed handstands and cartwheels whilst wearing no underwear.
22. Secondly the local authority asserted that there had been sexual abuse by father. In that regard, the allegation was that father had engaged in inappropriate sexualised behaviour with S. Specific examples given were that S regularly slept with her father; that she and her father had engaged in full or open mouthed kissing; that S had straddled her father and engaged in sexualised behaviour. It was also alleged that S had touched her father inappropriately in a sexualised manner and that her father had touched S inappropriately in the chest and genital areas. It was also said that S had been exposed to inappropriate television viewing whilst in the care of her father, and that she had been concerned that her father should not be blamed for any sexual abuse.
23. Thirdly, under the heading of failure to protect, the local authority’s case was that despite S’s long-standing and persistent sexualised behaviour, her parents had failed to protect S “from the risks of sexual abuse”.
24. The fourth finding sought by the local authority was that S had been neglected and in particular that at the time that the local authority instigated protective measures, she was living in unhygienic and squalid home conditions, and had suffered physical neglect whilst in the care of her father. Reference was made to inappropriate food and clothing, unhygienic conditions, a lack of appropriate bedding and no appropriate washing or toilet facilities.
25. Fifthly, it was said that she had been neglected by her mother in Carlisle, particularly on the occasion when she had been left overnight alone. It was also suggested that whilst in her father’s care she had been on occasions responsible for her own care or had her care delegated to her elder brother.
26. Finally, the local authority sought findings in relation to father’s long -standing abuse of illegal drugs. The local authority sought findings in relation to his failure to maintain abstinence over a lengthy period; that his friends and associates visited the cafe on the A19; that father had made S lie for him whilst he bought heroin and that generally his drug abuse had had a detrimental effect on his ability to provide for S’s basic needs, including her need for protection.
27. The local authority also sought other findings against the mother, which are not the subject of this application for permission. Although Mr Finch, who appeared for father before the judge and on the application for permission, was critical of certain findings made by the judge, he accepted that, overall, the threshold criteria under section 31 of the Act were met in relation to S, and that it was appropriate for the court to move on in November 2002 to the “welfare” stage of the hearing. His case, however, was that certain findings of fact made in relation to the father were not properly open to the judge, and that accordingly, unless these errors were corrected, the father would be assessed by the local authority in the period leading up to November 2002 on a false basis. The judge’s findings of fact must inevitably inform the assessment made by the local authority and others of father’s capacity to care for S, and if that assessment was based on an inaccurate premise, father’s case would, inevitably, be prejudiced.
28. A difficulty for the local authority before the judge was that, for its allegation that S had been sexually abused, it relied principally upon the statements which she made in the memorandum interview against R.G. R.G. was called to give evidence, and a transcript of his evidence is available. R.G. vigorously denied any form of sexual impropriety with S, and when R G. himself gave evidence, in the judge’s words

“it was immediately clear that R.G. is a respectable hard working family man of impeccable character. Being called to give evidence was clearly a great ordeal for him, but he gave plausible explanations of all matters that were put to him. He denied vehemently any impropriety with the child. He was an impressive witness in every respect, and the local authority having heard his evidence quite properly abandoned its request for any findings against him. He was released from the proceedings”.

29. In the light of R.G.’s evidence the judge discounted S’s account in her video interview. He said in terms that it would be “clearly dangerous” to rely upon any matter of significance in the accounts given by S herself.
30. The judge then went on to consider the cause of S’s obvious sexualised behaviour, and in particular the persistent and obsessive masturbation. Was that shown to be the result of past or ongoing sexual abuse? The judge reviewed the evidence of the experienced clinical psychologist who had treated S and the consultant paediatrician who had examined her. The psychologist’s opinion was that S had been sexually abused, but that opinion depended, in large measure, upon the fact that S had now made a disclosure of sexual abuse. Since that disclosure was unreliable, the value of the psychological evidence was plainly substantially reduced.
31. Having considered the therapeutic nature of the psychologist’s relationship with S and the case of Re B (Sexual Abuse: Expert’s Report) [2000] 1 FLR 871 and the appropriate standard of proof set out in Re H and R (Minors: Sexual Abuse Standard of Proof) [1996] 1 FCR the judge came to the conclusion that it was not possible to make a specific finding that S had been sexually abused by her father or by anybody else. The only complaint which S had made had been the wholly incredible one against R G., and there had never been any physical signs of abuse.
32. The judge continued with this paragraph:-

However what is clear beyond doubt in this case is that the mother and the father, sometimes together and sometimes individually, had to cope with a child exhibiting very sexualised behaviour. That is confirmed not only by them but by the doctor, the psychologist and members of the school staff. The local authority alleges that at different times both mother and father have failed to protect S from the risks of sexual abuse.

33. In support of this latter proposition the judge relied upon evidence from a lady called G.P., who had formerly worked for father in his cafe, and from R.G. and Sue Smethurst, the social worker. He had also seen a video interview with G.P.’s daughter E.P. and another girl called S. C.
34. G.P. described working for father in the cafe from about September 2000. She spoke of S using inappropriate language for a child of her age without father correcting her. She described father and S as indulging in full open-mouthed kissing, accompanied by the child moaning. She said she saw S rub her chest in a sexually provocative way after catching her father’s attention. She described S lifting her skirt whilst wearing no knickers. On one notable occasion, she said she recalled S holding up a pair of boxer shorts and saying to her father: “do you remember when P got these all covered in spunk”? She said that father’s reaction had been to laugh this off, whilst G.P. said that she had herself been mortified.
35. It was after that she heard of S’s allegations against R.G. that G.P. asked her own daughter E.P. if anything strange had happened when she stayed with S in the caravan, and it was what E.P. and later S.C. said which caused the police to become involved.
36. The judge was plainly impressed with G.P.who, whilst she “may have been uncertain as to some dates..........appeared to be an essentially truthful witness, who obviously did not relish the prospect of appearing in court and who insisted that she had nothing to gain, but had come to court to tell what she had seen”. As against that, R.G. had not seen any inappropriate behaviour, although both S and father had told him that they were sleeping in the same bed, something which R.G. said instinctively he did not think was right.
37. The judge had read transcripts of the evidence of E.P. and S.C., which he said contained more graphic detail of the relationship between father and S during their stay in the caravan. However, he excluded that material from his mind, on the basis that it would be dangerous and possibly unfair to father to rely upon specific allegations made by the girls in the video interview, apart from E.P.’s assertion that she slept in the same bed as father and S.
38. Father denied any form of sexual impropriety with S, and was supported in his denial by his elder son P. Father appears to have acknowledged that S slept in his bed, but as to the other allegations his case was lying, and prejudiced against him, possibly because he had not employed her in the cafe in the latter part of 2001.
39. P.S.Junior gave evidence that he had never witnessed in his time in the caravan any inappropriate sexual behaviour between his father and S, nor any sexualised behaviour by S, although, as the judge commented, the sexualised behaviour was obvious to many other people. The judge’s assessment of P.S.Junior was that he was trying to be helpful to the court, but that he had not been in the caravan for much of the relevant period.
40. The judge dismissed as fanciful father’s assertion that G.P. had for some reason manufactured evidence against him, and in any conflict between their evidence preferred G.P.’s account.
41. The judge’s findings about the father were in these terms:-

I am satisfied that the father failed to deal responsibly with the child of S’s traits, temperament and precocity and thereby failed to protect her from the risk of sexual abuse. Examples of his failure are that he allowed S to sleep regularly in his bed, he allowed her to kiss and straddle him in an unnatural way and he allowed her to use sexually explicit language without admonishing or correcting her.

42. The judge then went on to make specific findings of fact about the condition of the caravan. He rejected father’s denials of Ms Smethurst’s description as “littered with rubbish and food”. He also rejected father’s denials about S’s unkempt appearance and inappropriate clothes, which derived from both her school and R.G.. The judge found that the local authority had proved conclusively that when the proceedings were commenced S was living in quite unacceptable conditions, and was not being properly fed or clothed.
43. The judge also found that father had been a heroin user from the mid nineteen-nineties; that the longest period he had gone without taking drugs was eight or nine months at the end of 1995 and the beginning of 1996; that he had tested positive for opiates on two occasions during the currency of the proceedings, and that his habit was deep seated. The judge also found that he had tried to persuade S to deceive mother as to where they had been on one occasion when he was collecting drugs. The judge further found that father had taken drugs to the caravan, and that they were found by P, who also saw father smoking heroin on one occasion.
44. On this analysis of the family history, it is hardly surprising that the judge found the threshold criteria established. However, he went on to reiterate that the second stage of the proceedings would be based on the findings which I have already summarised. Thus whilst finding that S had not been sexually abused she had, nonetheless, since September 1996 exhibited sexualised behaviour, the main example of which had been her persistent and obsessive masturbation. The judge repeated the phrase that in failing to deal responsibly with a child of S’s traits, temperament and precocity father had “failed to protect her from the risk of sexual abuse”.
45. Against this background, Mr Finch, in my judgment, has a very difficult task in seeking to persuade the court to grant permission to appeal the judge’s findings of fact. His fire, however, is essentially directed at the apparent contradiction between the judge finding as a fact that S had not been sexually abused whilst, at the same time, finding that father had failed to protect her from the risk of sexual abuse. In addition, Mr Finch criticised the judge for accepting G.P.’s evidence and failing to give proper credence to father’s evidence when, he submitted, G.P.was demonstrably unreliable. He pointed to what he described as fourteen issues which he had placed before the judge in his closing written submissions to the judge. Having rejected S’s evidence against R.G.as unreliable, Mr Finch criticised the judge for failing to follow through the unreliability of S’s allegations.
46. In relation to G.P., Mr Finch emphasised the inherent improbability of what E.P. alleged given that her mother had permitted her to stay overnight in the caravan in spite of allegedly witnessing inappropriate conduct and simply wishing to ignore it. He also pointed out that she had apparently witnessed inappropriate conduct over a lengthy period of time, but had never spoken of her concerns. He pointed to other areas of her evidence in which, he submitted, she was either inconsistent or contradicted by others.
47. Despite Mr Finch’s efforts, I am not persuaded that G.P.’s credibility was so damaged by the matters to which he referred that the judge was not entitled to rely on her basic evidence of observation. I have read the transcript of her cross examination. As is invariably the case, the bald words on the paper give no impression of the demeanour of the witness, or the impression which the witness makes on the judge of first instance. On the issues material to his findings, the judge plainly believed G.P., and in my judgment he was entitled to do so.
48. I am, I have to say, more troubled by the judge’s repeated use of the phrase “failed to protect her from the risk of sexual abuse”. The judge’s finding was that S had not been sexually abused. However, as Thorpe LJ pointed out when refusing permission to appeal on the papers, what I think the judge meant by his finding of failure to protect, was that the child’s sexualised behaviour and father’s response to it compelled the conclusion that he failed to set proper sexual boundaries.
49. I agree with that analysis, and in my judgment this is the basis upon which the judge intended the second limb of the hearing to take place. This should therefore constitute the finding upon which father is assessed in relation to the question of S’s sexualised behaviour. .
50. That said, this is a much more complex case than a straightforward allegation of failure to set appropriate sexual boundaries. Father will also have to address his drug taking, and the judge’s findings of neglect. Accordingly, whilst I understand an attempt to appeal individual findings of fact in order to avoid an unfair assessment on an incorrect premise, I am not satisfied that the judge fell into any error when reaching his findings, and my only comment, in agreement with Thorpe LJ, is that the finding he did make in relation to failure to protect from the risk of sexual abuse should be interpreted in the manner which I have just described.
51. In these circumstances, I entirely agree with Thorpe LJ in his written reasons for refusing permission to appeal that the judge was entitled to make the factual findings which he did, particularly given his rejection of father’s oral evidence. I therefore see no prospect of a successful appeal against those findings, and the application to appeal will be refused.
52. Although much of this judgment is repetition of the judgment at first instance by His Honour Judge Cliffe, I propose to direct that Thorpe LJ’s reasons for refusing permission and a copy of this judgment be released to each of the parties to the case and, of course, to the judge.
53. The application is refused.
The court has made an order in this case restricting disclosure, or reporting, of information in this judgment. Anyone to whom a copy of this judgment is supplied, or who reads it in whatever circumstances, is bound by that order, details of which may be obtained from the clerk of the court.