Lord Justice Ward :
Introduction.
- This is a father's appeal in care and adoption
proceedings to which a reporting restriction applies relating to his four
children S, who bears the same first name as his father, born on
10th November 1988 so now 16 years old, L (I shall call her "L (the
elder)") who was born on 30th October 1993 now 11 years of age, L
("L (the younger)") born on 4th September 1997, now 7 years of age
and T born on 16th December 2000 now 4 years old. They are the
children of his marriage to the children's mother. He is 42 years old, the
mother is 35.
The nature of the case in the court below.
- The proceedings were heard over 16 days by Her Hon.
Judge Cahill Q.C. in the Leeds County Court. The hearing covered both aspects
of care proceedings, first the fact finding enquiry into whether the care
threshold set by s.31 of the Children's Act 1989 had been crossed and if so,
secondly, the so called disposal aspect of the case concerned with deciding
what orders should be made. Here the fact finding enquiry was given structure
by adopting the commendable practice of the local authority's providing a
"Schedule of Findings sought by the Local Authority (s.31 the Criteria)". It
was settled by Mr John Hayes, junior counsel for the local authority, who made
it plain that it was intended to be a summary of the detailed information
contained in the as then not yet complete statements filed on the local
authority's behalf. To give the flavour of the case I must recite the nature
of the harm alleged:-
"Sexual Harm.
1. Both parents have subjected S, L and L to repeated acts of
sexual abuse including:
a. sexual intercourse;
b. indecent touching;
c. oral sex;
d. exposure to pornography;
e. exposure to an adult sex object;
f. participation in a sex game involving family members
removing all of their clothing.
g. sexual activity between the adults in the children's
presence;
h. sexual abuse of one child in the presence of one or more of
the other children.
2. S has sexually abused his sisters and the parents have failed
to protect L and L from such abuse.
Physical Harm
3. The children have suffered numerous incidents of physical
harm through a combination of:
a. physical assault;
b. neglectful parenting;
c. inter-sibling aggression.
Emotional Harm
4. The children have suffered emotional harm by reason of all
the matters set out above.
5. Further, the children have suffered emotional harm through
exposure to adult conflict. The parents' relationship is characterised by
repeated acts of domestic violence. The father is controlling and physically
aggressive towards the mother and makes excessive sexual demands on her. In
October 2003 the mother reported that she had been raped by three men and
the father's response, when told, was to react with verbal abuse and threats
towards her.
The Children's Presentation.
6. The children have experienced highly dysfunctional and
damaging parenting. Their needs have not been met and they have suffered
delayed development and significant behavioural difficulties as a result of
the parenting that they have received.
7. S presents as a child who has been very severely damaged by
the parenting that he has received. Sexual abuse perpetrated on him by his
parents has caused him to behave in a sexually abusive manner towards his
sisters and other children. He engages in sexualised language and behaviour.
He is [a] physically aggressive child and is isolated from his peers. He has
committed an act of animal cruelty, causing the death of a cat.
8. On their admission to foster care, L and L wore grubby
clothing and their teeth were dirty. They engaged in aggressive and
sexualised play and language. At school L (the older) is a quiet and
withdrawn girl and both girls engage in sexualised behaviour. Both girls
have statements of special educational needs.
9. T has failed to thrive and is behind in his development. The
parents have missed appointments to monitor his health and development. T is
at risk given the abusive experience of his older siblings."
- The parents accepted that S could not be returned to
their care though they wished to have contact with him. They sought the return
of the other three children and, if that were not possible, they asked for
contact as least once a month with L and L. The guardian supported that
proposal for contact with L and L provided, however, that there were no
findings of direct sexual abuse. The parents opposed the plans to free T for
adoption.
The judgment, the orders drawn and the nature of the appeal.
- Judgment was given on 15th September 2004
and the order was drawn in these terms:-
"Upon hearing counsel
And upon the court finding the threshold criteria in s.31 of the
Children Act 1989 satisfied by reason of the facts and matters set out in
the judgment and recorded in the schedule to this order;
It is ordered
1. That the children be placed in the care of Kirklees
Metropolitan District Council;
2. That permission is granted to the Local Authority [to
disclose a copy of the transcript of the judgment to relevant
professionals];
3. That there be no order for costs
"
- The schedule attached to that order was in the terms
set out above save that there is a lesser finding as far as S is concerned.
The schedule now recites that:
"S has been involved in sexual activity with his sisters and the
parents have condoned such activity and failed to protect L and L from
it."
There was no separate order dealing with the parents' contact. No order was
placed before us relating to the freeing of T for adoption but I am told that
such an order was in fact drawn.
- The father now appeals seeking by his appeal to
reverse most of the findings of sexual abuse alleged against him as recited in
the schedule to the order. He asks this court to make an order for defined
contact to the children once a month.
Some observations on procedural matters.
- The first point to make is that under s.16 of the
Supreme Court Act 1991 the Court of Appeal has "jurisdiction to hear and
determine appeals from any judgment or order of the High Court". The terms of
s.27 of the Supreme Court of Judicature (Consolidation) Act, 1925 were to the
same effect. In Lake v Lake [1955] P.337 the headnote records:
"That a judgment or order against which an appeal could be
brought pursuant to s.27 of the Judicature Act, 1925, meant the formal
judgment or order which was drawn up and disposed of the proceedings and
which in appropriate cases the successful party could enforce or execute.
The right of appeal did not extend to a finding or statement in the reasons
given by the court for the conclusion reached."
- Section 77 of the County Courts Act 1984 is in
slightly different terms, namely:-
"
if any party to any proceedings in a County Court is
dissatisfied with the determination of the judge or jury, he may appeal from
it to the Court of Appeal in such a manner and subject to such conditions as
may be provided by the Civil Procedure Rules."
- Although the CPR themselves seem silent on the
point, the form of an appellant's notice requires in section 5 "details of the
order(s) or part(s) of order(s) you want to appeal" and in section 9, in
answer to the question, "What decision are you asking the Appeal Court to
make?" the appellant has to specify either that "the order(s) in section 5 be
set aside" or "the order at section 5 be varied and the following order(s)
substituted". Thus I am in no doubt that the same general principle applies to
appeals from the County Courts as from the High Court. Certainly the notes in
CPR 52.0.13 confirm that the appeal is against orders, not reasoned judgments.
- That presents the appellant with technical
difficulties which we have overlooked but to which I draw attention. He
recognises his children must stay in care and the thrust of his case is that
he should have regular contact to them defined by the court, not contact at
the discretion of the local authority. His problem is that the order is silent
as to contact. No separate contact order has been drawn. The judge dealt with
contact in her judgment as I shall indicate and an order should have been
drawn to reflect that judgment. In my experience judges seldom see what order
is drawn for that is the task of the associate in court. It is for the parties
to ensure that orders are drawn to reflect all matters covered by the
judgment.
- Where fact finding and disposal are dealt with at
one hearing there is no need for any recitation in the order itself or by
attaching a schedule to it of the facts which justify the making of the only
order which needs to be drawn namely the care order or supervision order or
residence order as the case may be. The judgment stands as the record of why
the judge has decided as he or she did. I agree with the observation of Sir
Raymond Evershed M.R. in Lake at p.342 that:-
"To suggest (except, at any rate, in wholly exceptional
circumstances) that an order of this kind should condescend to a detailed
statement of every issue which was raised in the case and of the court's
conclusion upon those issues seriatim would be to make the form of order
altogether too complicated, and, indeed, that it would be an impracticable
and wholly undesirable result."
- The position will be different if there has been a
preliminary fact finding enquiry before final disposal of the case. As I do
less and less family work I am less familiar with current trends and practices
but the little I have seen suggests that there is sometimes a tendency for no
other order to be drawn after the facts have been found than the giving of
directions as to further evidence etc. for the disposal of the case. I have
said previously that that does not seem to me to be good enough. It is not
good enough because it does not provide any order against which the aggrieved
party can appeal. Better, it seems to me, that when the court directs a
preliminary fact finding hearing it adopts the standard procedure in civil
justice by setting out the preliminary issues which are to be determined. A
schedule of the kind prepared in this case can then be framed as questions
which the judge can answer aye or nay, an order can be drawn accordingly and
there will then be a peg upon which this court can hear the appeal. Because
much further investigation will follow, it remains important to remember as
Lord Nicholls said in Re O and N; Re B [2003] UKHL 18 [2003] 1 FLR 1169
at paragraph 35:-
"
transcripts of judgments given at the preliminary hearing
should always be made readily available when required, so that reliance does
not have to be placed on summaries or even bare statements of
conclusions."
- Just how detailed that schedule should be must be
a matter left to the judgment of the local authority's legal team. There is
obvious merit in condescending to as much detail as possible not only to give
the parents notice of the case against them but also to focus the lawyers'
attention on the issues and the evidence needed to establish or rebut those
allegations. On the other hand some restraint may be necessary to prevent the
document becoming too unwieldy.
A prιcis of the background taken from the judgment.
- The parents married in 1990 and continued to live
together though it is a marriage which has had its difficulties. The mother is
said to have an I.Q. of 60 which places her in the extremely low range of
classification. Indeed special arrangements had to be made for her during the
trial to have a 15 minute break at the end of every hour so that she would
have an opportunity of better understanding the case. The father's I.Q. is 72
which is on the borderline range of classification. So these parents start
with grave disadvantages.
- It is no surprise that the Social Services
Department has had a long involvement with this family and, as was fairly
conceded, from time to time has failed it. An early referral to them came from
S's school in 1994 when he was six years old. He had what seemed to be rope
marks around his neck alleging that his father did it to stop him going out.
The judge found this allegation proved against the father and although it
formed part of his appeal, it was not pursued at the oral hearing before us
and so the finding stands.
- There were generalised allegations of domestic
violence but the judge's conclusion was that there were no proven incidents of
direct physical violence by the father to the mother: his behaviour was rather
to keep her and the children in fear through intimidation, aggression and
verbal abuse. He had a tendency to throw things round the house when in
temper. The judge expressed herself satisfied in paragraph 63 of her judgment
that over a long period of time as appears in the records and chronologies the
mother was complaining about the father's treatment of her to a number of
professionals, and the reason she was complaining was because he was treating
her in a manner that was completely unacceptable which included keeping her
and the children in fear. It was the view of Doctor Ward, a well respected
paediatrician, that the domestic violence in this family should be seen as
emotional and verbal and that living in a household where there is
intimidation and threats would cause great harm to these children. For Doctor
Ward there was overall "a global picture of neglect".
- This pen sketch of life is enough to justify the
findings of significant harm sufficient to lead to the making of a care order.
- The care proceedings had commenced in this way. On
12th November 2003 the mother reported that she had been raped by
strangers. She feared she may have caught a sexually transmitted disease. When
she told her husband he "went mad", called her a whore and a dirty bitch. He
agreed in cross-examination that he thought only of himself and not of the
mother at this traumatic time. She was so distressed by it that she refused to
return home and asked for the children to be accommodated by the local
authority. The girls were placed with a foster carer Maggie Wainwright and her
partner Shelley. Their presentation and behaviour was a source of concern to
her. L (the younger) soon began to make disclosure of sexual abuse which led
to the local authority seeking interim care orders early in December 2003.
The evidence of sexual abuse within the family.
- S began exhibiting sexualised behaviour when he
was about nine. The school were concerned that his knowledge of sex was
inappropriate for a child of his age. He made references to his father forcing
his mother to have sex. He himself in April 1998 was seen to put his hand down
a girl's pants. S was also behaving very violently. In October 1999 he hit L
the elder so hard on the head with a brush that she had to go to hospital to
have the bristles removed. In June 2000 he pushed his mother down the stairs.
Mother reported him dragging L (the elder) into his bedroom and hearing her
scream without her intervening. In August 2000 he hit his mother and L (the
elder) with a hockey stick. In September 2001 he held a knife to his mother's
throat. He was at that time exposing himself and "acting like a peeping Tom".
In July 2002 the school were reporting his aggressive behaviour to girls. On a
residential trip S was found in the dormitory on top of a girl. Both, however,
were fully clothed. The social work record at the time notes that S was being
provided with inappropriate videos by his parents. It also reported that L
(the younger) was displaying sexualised behaviour at home and the concerns
were that the children had been witnessing sexual activity between the
parents. In August 2003 the notes record concerns about the girls' acting out
sexual behaviour between their Barbie dolls. At the same time there were
school reports that S had been touching girls inappropriately. On
23rd June 2003 the girls were playing with their Barbie dolls and L
(the younger) was overheard to say, "I am gonna sex you".
- This sexualised play with their Barbie dolls was a
matter of great concern to Mrs Wainwright when the girls came into her home.
On 21st November 2003 when a four year old girl in their care was
having her nappy changed, L (the younger) witnessed it and asked, "Can we play
shagging?" On 25th November L (the younger) told Shelley that a boy
had "shagged her and taken her clothes off at school in the toilets". L (the
elder) heard that and responded by saying, "That's rape then". L (the elder)
made a circle with her thumb and forefinger and inserted her other index
finger in and out of the circle she had made whilst the girls were whispering
together.
- Then on Saturday 29th November after a
shopping expedition L (the younger) alone with Mrs Wainwright in the kitchen
suddenly began talking about boyfriends and shagging. She stated that her
Mummy and S do shagging. She went on to say Mummy drinks beer and sucks S's
dick. In addition she stated that Mummy takes her clothes off and shows her
tits outside the door and "that" (pointing to her genital area). L (the
younger) said, "She had got done by the police for showing her tits and fanny,
and Mummy tries to snog me, but I don't like it. I say "get away". Mummy says
kiss my tits and she tries to shag me". She went on to say that Mummy tells
her to lick her "minge" and L began thrusting her tongue in and out very
quickly. She stated that she watched rude films with "shagging in".
- The following day Maggie Wainwright without making
reference to her disclosures asked L (the younger) whether they should talk
about the previous day. L (the younger) looked at L (the elder) and said, "Sex
and shagging" and L (the elder) made a groaning sound. L (the younger) then
said that Mummy and S do shagging and basically repeated her disclosures of
the previous day. Whilst repeating these L (the elder) told L (the younger)
that she would "go to hell". L (the elder) then said that it was all true,
"Mummy and S do shag. They get drunk, she likes beer, she shows her tits at
the door and her (pointing to her pubic area). Mummy did a poo on the bed,
sicked on the floor and pissed on the floor in her bedroom. Mummy and S got
done by the police for showing their private parts".
- Mrs Wainwright told the judge and the judge
accepted that what was said was spontaneous and that she asked no questions.
- Later that day L (the elder) wrote a letter to Mrs
Wainwright. It is difficult to follow but she seems to be repeating "what L
(the younger) said that Mum and S were shagging in bed and licks each other
private parts". She also referred to them getting drunk when the police came
by and they got told off by the police.
- On the Monday, 1st December, Maggie
Wainwright reported the disclosures to the social worker. Whilst at school L
(the younger) spoke to the classroom support assistant Julie Willett about
playing a game called "slam down". Asked how the game was played L said that
they took all their clothes off but once someone had come to the door and they
had to get dressed again quickly. This was obviously concerning and Ms Willett
reported to the head teacher who encouraged her to seek further information.
That was unwise. She had no training in speaking to children about matters
which could relate to sexual abuse. They had a conversation after lunch and
she made a note of the conversation as it went along:-
"I was asked if I would go and sit with L (the younger) as she
was crying. She said she was missing her Mum and Dad, T and missing her
brother S. She said she missed playing games with S, I asked what she was
missing and she said slam down. I asked how she played this and she said she
had to take her clothes off and they played it on Mum's bed. S picks her up
and throws her around and slams her down on the bed. She then talked about
him playing scream with her where he pretends to kill her with a knife. She
also says he balanced the kitten on top of the door and shook it and also
puts the kitten in a cupboard and puts toys on top of it. Asked L (the
younger) to explain how the game slam down is played. She says you take your
clothes off and show your tits and fadge S shows you his big willy or his
dick and shakes it about, (it has hairs on it) and wee comes out. She said
shit comes out of his arse. Mummy comes in and takes her top off and her
knickers off when she is pissed and wees on the carpet. L (the elder)
sneaked into Mum and Dad's bedroom and saw them shagging. L (the younger)
said she went to get a toy from Mum's bedroom and it was full of piss. Daddy
puts his head up Mum's skirt then licks it. L (the younger) takes her
clothes off. She lays with her arms in the air and opens her legs (L (the
younger) plays this game with Daddy). Daddy takes L (the younger) to the
graveyard when it is dark. Daddy plays with my tits in the graveyard. Then L
(the younger) plays boogie with Daddy. (Boogie is the same as sex). L (the
younger), Dad and S play scary movies. Mummy bought a dick and started to
lick it (L (the younger) showed me how). Then L (the younger) licks it and
started to eat the balls. Daddy got his big dick out and shook it. Daddy
went to someone else's house to shag then Mummy cried. S has made L
suck his dick, he has licked her fadge."
Ms Willett states that throughout that conversation L (the younger) was
acting out sexual actions initially using a small "Tigger" soft toy that was
in the office. She goes on, however, to say that she later collected two dolls
which the child then used to demonstrate what she was saying. The use of
anatomically correct dolls has been frowned upon and although these were
perfectly ordinary toys, the practice using dolls has to be viewed with care.
It is a great pity this untrained, though well meaning, classroom assistant
undertook this exercise. Ms Willett also reveals that at the end of the
interview the child became upset asking her not to reveal what had been
disclosed because "they will think I am dirty and I will go to hell".
- Later that night Mrs Wainwright reported that
while sitting at the table L (the younger) said she had told Mrs Willett at
school about sex and shagging. She then said that L had sucked Daddy's dick. L
said, "I haven't" and went on to say "We're not going home". Shelley asked who
had told her that and asked whether it was a child at school or a teacher and
L (the elder) said, "No, it's me" and then said, "It's because of what Mum has
done, the rude things". Later when L (the elder) had gone for a bath L (the
younger) said that she had told Mrs Willett about "smack down". L (the
younger) then told me "You take all your clothes off, with S and Daddy". She
went on to say that L (the elder) had told her she sucked Daddy's dick when
she got a Barbie. L (the younger) also said S puts his big dick out and shaked
it, two balls stuck together, small ones, pink and a hard dick, you suck it
but you don't bite it.
- The girls were taken for medical examination which
in L (the elder)'s case was supportive but not diagnostic of sexual abuse. In
L (the younger)'s case close inspection of the posterior hymen revealed some
irregularity and a double margin but that did not reach diagnostic
significance although the hymen was not entirely normal.
- On the same day the children were interviewed by
experienced police officers. L (the younger) made no disclosure of any
significance. She was asked if S was a good brother and replied "Yeah". She
conceded sometimes he had been naughty but when asked to tell about when he
was naughty and what he did when he was naughty she replied, "Don't know".
Asked about her father this exchange took place:
"DC Newsome: What kind of things does your Dad do at
home?
L: Don't know.
DC Newsome: You don't know what?
L: I don't know what he does."
- She was asked by DC Newsome whether she spoke to
Maggie [Wainwright] about her Mum and brother. She shook her head. She was
asked, "Can you remember saying anything to Maggie?" and she replied "No".
"DC Newsome: Did you talk to her about your Mummy?
L: No.
DC Newsome: Did you talk to her about S your brother?
L: [Shakes her head].
DC Newsome: Did you talk to her about your Daddy?
L: Yeah.
DC Newsome: Good so tell me what you were talking to Mrs Willett
about.
L: Erm don't know. Don't know. Our S's willy.
DC Newsome: About what?"
- She was asked about Ms Willett. Though she
admitted talking to her she stated she did not know what they had spoken out.
This exchange took place:-
"DC Newsome: So do you want to tell me what you said to Ms
Willett?
A: No.
DC Newsome: OK. Is there anything that you want to talk
about?
L: [Shakes head].
DC Newsome: Do you want to talk about anything that's happened
that you did not like?
L: [Shakes head].
DC Newsome: No?
L: No."
- It seems that DC Newsome had not heard the earlier
remark about S's willy as appears from this exchange at the end of the
interview:-
"DC Newsome: Right. Clare said that when I asked you what you
talked about to Mrs Willett you said about S's Willy?
L: Didn't.
DC Newsome: Did you say anything about that?
L: [Shakes her head].
DC Newsome: No?
L: No
DC Newsome: Do you want to say anything about that?
L: [Shakes her head]. Don't want to."
- L (the elder)'s interview contained these
exchanges:
"DC Newsome: Do you know what you've come to talk
about?
L: No
DC Newsome: Has anything happened at your normal house with your
Mum and Dad which you think you might need to talk about?
L: Fight and argue.
DC Newsome: Right. Tell me about that then.
L: When me Mum spends money on clothes me Dad doesn't like
it.
DC Newsome: Have you seen anything at your Mum and Dad's house,
at your house?
L: No
DC Newsome: Anything you don't like?
L: No.
DC Newsome: Have you spoken to Maggie about anything at
home.
L: Yeah.
DC Newsome: And can you tell me about that then?
L: L (the younger) told Maggie but summat about naughty
words.
DC Newsome: Right. What did she say?
L: Like when me Mum gets drunk, me brother and
me brother and
me Mum's shagging, summat.
DC Newsome: Right. So what do you know about that
then?
L: Cos me sister told me.
DC Newsome: Right what did your sister tell you?
L: That they, me Mum erm, me Mum and brother went up to shop to
get some beer and the police were coming up the road and they erm stuck twos
up at them.
DC Newsome: Who did that?
L: Me Mum and brother when they were drunk.
DC Newsome: And what does it mean, "shagging"?
L: I don't know.
DC Newsome: What's your Mum like when she's drunk
then?
L: She does naughty, rude things.
DC Newsome: Tell me what they are then.
L: Shows her bum out window and her rude parts.
DC Newsome: Does she?
L: Yeah.
DC Newsome: What are her rude parts then?
L: Her fanny and her tits.
DC Newsome: And how many times have you seen your Mum do
that?
L: Quite a few times.
DC Newsome: And what about your S?
L: Fights sometimes.
DC Newsome: Who does he fight with then?
L: Me and L
DC Newsome: What games does he play?
L: Like monsters and things.
DC Newsome: Tell me about that then.
L: Just pretends to bite us.
DC Newsome: Can you tell me anything else like that that happens
in your house?
L: No.
DC Newsome: Right. What's your Dad like with you?
L: Tickles us.
DC Newsome: Does he?
L: Yeah.
DC Newsome: Where does he tickle you?
L: On me belly.
DC Newsome: Right. Whereabouts on your belly?
L: There [points to her stomach]. There.
DC Newsome: There. Right. Does he tickle you anywhere
else?
L: No.
DC Newsome: Have you seen your Mum and S shagging?
L: No.
DC Newsome: No. Have you seen your Mum doing anything like that
with S?
L: No.
DC Newsome: And what about with you?
L: No.
DC Newsome: And what about Laura?
L: No.
DC Newsome: You know when we were, I said about shagging? What,
who does shagging?
L: Mum and Dad.
DC Newsome: Right. Tell me what they do when they
shag?
L: Make love.
DC Newsome: Right have you seen that happen?
L: No.
DC Newsome: No? And have you seen anybody do that?
L: No."
- On 8th December Maggie Wainwright
informed Social Services that L (the elder) had said that when she was at
school her teacher "touched her up" and when asked what she meant by that she
said he had taken her into the toilets and touched her private parts.
- On 11th December L (the elder) alleged
that they had been touched by Leif, a family friend. These allegations were
investigated and it was decided that the police should conduct a further
interview of the children.
- In the course of her interview L (the younger)
said nothing about indecent assaults by Leif, but at the end of the interview
this exchange took place:-
"DC Barnes: That's all you've talked about isn't it?
L: And me Mum she's been naked. She was pissed. She drank all
the beer, then sing, "Tell L (the younger) I love her". She sang that near
to me next to L (the elder). Then says comes and shag me. "Come and shag me,
S".
DC Barnes: Who said that?
L: Me Mum. She were pissed. Then she said kiss me L. She were
thingy. Like, erm, thingy. She were pissed. Then she went outside and then
she smoked, then this is the worst thing she done, she went outside, she
taked her bra off, she showed her boobies off. That were dirty. Then going
like that, that rude. That's why I was taken away for. Is about my Mum doing
that? That's why we were taken away? Then Mum, me, I, Daddy ringed up and
then he shouted and then he went downstairs
DC Barnes: Right. So that's what your Mum did when she was
pissed?
L: Yes. Me Mum did. My Dad got very cross.
DC Barnes: Has that happened before?
L: Yes. Me Dad got very cross.
DC Barnes: Dad got cross did he?
L: Yes. Got cross.
DC Barnes: Right.
L: He shouted. That's it. That's what I want to talk about. I
talked it now that's it."
- In her interview L (the elder) was asked to say in
her own words what she had come there to talk about. She wanted to talk about
Judy and Leif. She said of Leif:
"When I went to toilet and I were having a poo he looked in.
There were a little gap in door and he looked in. And, erm, when I were in
room he touched me up leg and erm and that's it, that's the only thing I can
think of."
- She continued to talk about them saying that Leif
was bad "cos he does all those rude things I think". She later explained how
they were playing a game of hide and seek and were on the floor covered with
cushions when Leif found them and then:-
"He put his hand up and touched me up leg there [indicating the
top of her right thigh]."
- Later she said:-
"S did [the finding] but he didn't touch me up the leg. And Leif
did it but he touched me up the leg."
- This seems to me like inappropriate touching but
it is an allegation not levelled against her brother and her father did not
even get a mention.
- L (the elder) was interviewed by a Guardian on
28th June 2004 when she told him she would only wish to return home
to live with her parents if the problems that existed prior to her leaving the
family home had ended. When pushed on the nature of these problems she told
him that she did not like the swearing, that S scared her with ghost stories
and did "bad things". She added that she did not like her mother and father
arguing, that her brother and mother would kiss and do "rude things" and that
when drunk her mother would hurt her by pulling her ear. L declined to define
"the bad things" and the "rude things" but did talk about her mother exposing
herself when in drink.
The father's evidence.
- In the transcript of Day 1 of his evidence at page
7/8 he denied giving evidence in chief that it was true that he got "his dick"
out and shook it. He volunteered the explanation that:-
"Maybe she's seen me on the toilet or whatever like that, you
know."
He admitted being with her in the graveyard but only because they were
taking a shortcut to the town. He did not know what she meant by "boogie". He
knew of "smack down" as a Play Station wrestling game but he denied ever
having seen S do anything in a sexual way to the girls. He admitted he had
bought inappropriately explicit videos for S and gave this explanation for
it:-
"It was the lesser of two evils, you know. Keep him in and he'll
behave himself and that, get him a game, you know. Basically that was it. If
he couldn't go out then I'd buy him a game. "Well, buy me a game then".
"Well, o.k.". And then it seemed to be that side of the games, the adult
side."
- He was cross-examined at length by Mr Hayes on
behalf of the local authority. He fenced and hedged about forcing his wife to
have sexual intercourse. What he was prepared to concede was that he would
succeed in having sexual intercourse with her even after she had said no. A
typical exchange would be the following with some passages omitted:-
"Q. Did the children see pornographic videos?
A: If they got hold of them, yes they would have done,
yes.
Q: Would you let the children watch pornographic
videos?
A: No.
Q: Why were you leaving them, you say where they could see
them?
A: Just being careless.
Q: Careless. What do you mean by that?
A: Just leave them, you know just leaving them.
Q: Why did you not just put them away?
A: Should have done, yes."
- Here is another unsatisfactory passage:
"Q: Did you ever hear L talking about seeing oral
sex?
A: Seeing oral sex?
Q: Yes.
A:Yes.
Q: You did?
A: Yes.
Q: What did she say about that then?
A: Seeing it, saw it with me and the wife.
Q: How do you know she saw it with you and your wife?
A: Probably just see it when she's walked into the bedroom or
she's stood there in the bedroom."
Dealing with the penis shaped piece of rock, this is a typical
passage:-
"Q: So what is L (the younger) talking about when she is talking
about licking a dick?
A: Maybe that's what she's seen when we've been in the
bedroom.
Q: L is talking about she, L (the younger), doing it Mr
D?
A: No, not L (the younger) doing it, no she's probably seen me
and wife.
Q: L (the younger) is talking about L herself doing
it?
A: No.
Q: She remembers L (the elder) sucking your dick and you gave
her a Barbie. What is that about?
A: No that's not true.
Q: Did you give L (the elder) a Barbie as a reward for doing
that to you?
A: No.
Q: Is that what you were doing?
A: No.
Q: Make her think that if she did things like that she would get
gifts?
A: No.
Q: She remembers a game, and she talks about a game I am
talking about L (the younger) now, where you would all take your clothes off
in the house. What was that?
A: No I don't remember that game.
Q: Are you saying that it's all made up?
A: Yes."
- On the second day of his evidence he dealt with
the specific allegations against him in this way:-
"Then L (the younger) said this to her classroom assistant. "L
takes her clothes off. She lays with her arms in the air and opens her legs.
L plays this game with Daddy." So L calls it a game. Have you ever played a
game with L?
A: No.
Q: Where she takes her clothes off?
A: No.
Q: And lies with her arms in the air.
A: No.
Q: And opens her legs?
A: No.
Q: Or have you told her it's a game?
A: No.
Q: Where in fact what you are doing is having sexual activity
with her?
A: No
Q: That is what you have done, is it not? You have told your
daughter that this is a game?
A: No.
Q: To make her do it.
A: No.
Q: That is why when she is talking to her classroom assistant
she called it a game?
A: No
Q: She can remember you taking her to the graveyard. "Daddy
plays with my tits in the graveyard". Then she plays boogie with her Daddy
and then she is asked what boogie is. "Boogie is the same as sex". What is L
talking about, Mr D?
A: The graveyard, we just take a shortcut through the
shops.
Q: Do you touch her there?
A: No.
Q: You see it is after that I have asked you about this
already that she then describes this incident with the dick. "Mummy bought
a dick and started to lick it". L showed me how. So L showed her classroom
assistant what happened. She saw that happen and she copied it so that the
classroom assistant knew what she was talking about.
A: I haven't seen it.
Q: "And then L licks it and starts to eat the balls". That is
what she is describing there. That is the incident with the novelty toy or
the novelty sweet as you describe it. Then the next thing that L tells her,
"Daddy got his big dick out and shook it".
A: No, not true.
Q: That is what you've done, is it not?
A: No.
Q: She's not talking about you on the toilet there, is
she?
A: No."
The judge's findings.
- The judge recorded the fact that she had seen
videos of the children's interviews. She said of them:-
"55. It is clear from them that they had no evidential value, L
(the younger) in particular struggled to understand what was being said to
her in relation to the truth, and it is my view that they add nothing to
this case either supporting or negating the allegations made
elsewhere."
- She made these findings which I must set out
fully:-
"86. It is not necessary for me to make findings about each and
every allegation in this case; as I have said I adopt the chronology which I
accept is an accurate account of events in this household. I do however find
that the father has, as alleged, been overbearing and intimidating. I am
satisfied that this household was run entirely with his interests first and
foremost and that the children's interests were disregarded. Where there was
a dispute between the evidence of the parents and that of the professionals
I accept the evidence of the professionals. I accept that the mother has
repeatedly with good cause over the years complained of the father's
behaviour and I find that the reason for the mother's upset on
12th November 2003 was not because she had been allegedly raped,
but because of the father's appalling reaction and behaviour towards her. I
am satisfied that that was worse for the mother than the alleged rape
itself. The mother in her evidence tried hard to exculpate the father from
any responsibility. It was in my view an example of what she has done over
the years, namely put him first over the children. I find that the father
has throughout this marriage treated the mother with contempt and sexually
abused her. He has on his own admission demanded sex at all times of the day
and night and has not been concerned whether the children have watched or
not.
87. The mother told me in relation to S [the son], "He says he
cannot help it, I have asked him why he is doing it; he says he has a
problem and cannot control himself". I am satisfied that she was talking
there not of S but of the father.
88. I find that in relation to the incident in 1994, it was as S
recounted at the time, namely, he was restrained by his father putting a
rope round his neck. He has since been used by the father as the scapegoat
should the mother not give into his demands and at times has felt the need
to act as his mother's protector. I accept the submission of the local
authority that there have been numerous profoundly worrying incidents
involving S, and that S's behaviour is a direct result of what he has seen
and experienced in the home. S has shown violence, aggression and sexualised
behaviour towards his sisters, which is a result of witnessing his father
behave in such a manner towards his mother.
89. L (the younger) was still only six and L (the elder) ten
when taken into care. Their descriptions as given to Julie Willett and their
foster carer I have examined with some care. There is no reliable disclosure
interview in this case, however I am satisfied that these girls had a story
to tell, which tell they did when they were in the safe environment of their
foster home. L (the younger's) demeanour at the time she disclosed is in my
view significant. She was relaying in a matter of fact way things that were
to her ordinary day life. She displayed a knowledge that could only have
been learnt. She lived in a household where the father admits the sexual
boundaries were unacceptable. Taking into account all the evidence I am
satisfied that the behaviour of these parents towards their children went
far beyond their admission. I am satisfied that S, L and L have all suffered
sexual abuse, not only by being allowed to watch their parents having sexual
intercourse and oral sex, but also directly as described to Ms Wainwright
and Julie Willett.
90. I am asked to find that S had sexually abused his sisters. I
do not do so. I am satisfied that S has indulged in inappropriate sexual
behaviour with his sisters, however at the least this was condoned by the
parents who failed to protect L and L from it, and I cannot be satisfied
that the parents themselves were not involved on such occasions. I am
therefore not prepared to attribute responsibility for such acts to S. It
seems to me that as he has grown up himself the victim of abuse by his
parents and in a home where sexual activity was daily a part of life, he has
known no other.
91. In relation to the schedule of findings sought by the local
authority
I therefore find the allegations proved
and in relation to two
it should read "S has been involved in sexual activity with his sisters and
the parents have condoned such activity and failed to protect L and L from
it."
92. I am satisfied that all four children have suffered and are
likely to suffer significant harm in the care of their parents, and orders
are necessary to protect them."
The care orders and contact.
- In the light of those findings the judge was
satisfied that the children could not return home and that alternative
arrangements had to be made for their care and she approved the care plans
accordingly.
- Dealing with contact with the girls the judge said
this:-
"In relation to L and L I agree that they should be kept
together. I have listened with concern to the plan for them only because I
accept the difficulty that the local authority is in finding a placement for
them. If at all possible bearing in mind the evidence of Mrs Salter a foster
placement should be found, but I agree with them except that twin track
planning is appropriate and that the placement itself is the most important
and not the nature of the placement. The local authority has a difficult
task ahead of them balancing the need for therapy and the finding of a
placement and the girls' need for some contact. I was pleased that during
the final submissions it was made clear that the local authority will only
slowly reduce the girls' contact to their parents over the next few weeks
such that it will be weekly from 20th September for a month,
fortnightly until 22nd November 2004 and then each school holiday
and half term until placement. Thereafter the local authority and the
children's guardian having differing views, the children's guardian saying
it should remain at this level and the local authority saying it should be
three times a year. It is my view that either view could be right but it is
far too early to say now. Exactly what will be the position of the girls in
say six or twelve months is unknown as is the views of any therapist or
carer. The contact will be reviewed at the statutory reviews and I would
simply urge the local authority to look carefully, as I know they will, at
the arrangements at each review. Subject to the plan being amended to
reflect what was said in submissions I am therefore not going to make an
order for contact to the parents requested by the children's
Guardian."
- She went on to deal with T and held that a
reasonable parent taking into account all the facts as she had found them
would consider that it was best for T that he be adopted and in those
circumstances she dispensed with the consent of the parents and freed him for
adoption accordingly. And there is no appeal against that decision.
Can findings of fact set out in the schedule to the order be
upheld?
- I have spent a long time, regrettably too long a
time, mulling over this question. I am all too well aware of the need for
caution before interfering with the trial judge's assessment of primary facts.
This is an experienced judge who had a long time to view the parties in a
difficult case. Her views command respect and I have been concerned to pay
that deference to the judge's findings. Despite that, I cannot uphold her
conclusions. Before passing to a consideration of the individual findings of
fact contained in the schedule to the order I have three reasons for
concluding that it is not safe for this court to rely upon them.
- The first is this. It was, in my judgment, but
contrary to hers, necessary for the trial judge to make findings about each
and every allegation in the case in relation to sexual harm as particularised
in the schedule because both the guardian and the expert psychologist Mrs
Salter were agreed that absent findings of direct sexual harm, then regular
contact, whether once a fortnight or once a month, should be allowed to these
young girls who love their parents and miss them. Having disclaimed in
paragraph 86 the need to make findings about each and every allegation in the
case, I cannot be sure that the learned judge did properly turn her mind to
the individual incidents of direct sexual harm when finding in paragraph 89
that they suffered sexual abuse directly as described to Ms Wainwright and
Julie Willett. The girls did have "a story to tell" for they have seen and
heard much from which they ought to have been protected but that does not
absolve the need for detailed considerations of the several allegations
levelled against father, and mother, and S.
- The second general reason is that there appear to
me to be two strands of inconsistency running through this judgment. The first
is this. If the disclosure made to Maggie Wainwright and Julie Willett is
accepted as credible as the judge accepted them in paragraph 89, then that had
to lead inevitably to a finding that S was not merely a victim of sexual abuse
of one form or another within the family but a perpetrator of it. She seems to
have declined to do so. Asked to find that S had sexually abused his sisters
she did not do so in paragraph 90 of her judgment. She was satisfied that he
had "indulged in inappropriate sexual behaviour with his sisters" and I am
puzzled as to what is meant by that. The problem that then arises from the
judgment is that it is difficult to see how the evidence can be compelling
enough to convict the father but not the brother. There was abundant evidence
before the court that S was a damaged boy, very much a victim himself. He was
described by Professor Reed, consultant psychiatrist, as posing a risk to his
siblings from his "sexually predatory behaviour" by Mrs Salter as "a potential
danger to vulnerable people" and by Doctor Ward as "a highly vulnerable young
man in terms of his own safety and the safety of others". I do not record
these troubling observations for the sake of denigrating the boy but to make
the point that some judgment had to be made about exactly what he was doing to
his sisters in order to separate out from their account of the happenings in
that household, devoid as it was of normal sexual boundaries, who had done
what to whom. The judgment is not internally consistent when S is exonerated
of sexual abuse and the father is condemned of all of it. If the judgment
lacks logical coherence, it has to be reviewed by the Court of Appeal.
- The second inconsistency lies in the fact that in
order to find that the father had subjected L (the elder) to oral sex then he
had to reject that child's denial that such a thing ever happened. No reasons
are given for preferring L (the younger) to L (the elder). For me this lack of
particular reasoning taints the whole process of reasoning not just on this
part of the case. It permeates the whole judgment and is not simply to be seen
as a reason for upsetting that particular finding.
- The third general ground of concern was her
holding that the interviews with the police "have no evidential value" and
"add nothing to this case either supporting or negating the allegations made
elsewhere". In my judgment that is wrong. True it is, as the judge found, that
L (the younger) may have struggled to understand what was being said to her in
relation to the truth in her first interview which is, as a result,
inconclusive but in her second interview held to investigate Leif's conduct, L
did take the opportunity to talk about her mother's behaviour which clearly
was a matter of concern to her because she felt that was the reason why they
had been taken into care. She was availing of an opportunity to bare her soul
in that disclosure, yet she said nothing about father. Nor can the first
interview be entirely overlooked. L (the younger) may have said nothing but L
(the elder) knew why the interview was being conducted and she repeated what
they had been speaking to Maggie about, namely, the behaviour of her mother
and Stephen. She disclosed nothing adverse about her father's behaviour. In my
judgment those are evidential facts which it was wrong to discount.
- For those reasons I am satisfied that the appeal
has to be allowed and the question for me is whether it should be remitted for
a rehearing. No-one sought that. I see no need for it. This court is now able
to act on the primary findings of fact made by the judge and draw its own
inferences as to what happened applying the high standard of proof which is
required in a case like this. I turn, therefore, to consider the several
matters alleged in the schedule of findings placed before the court.
Sexual intercourse.
- On Saturday L (the younger) spoke of Mummy and S
shagging. She repeated it the next day. L (the elder) agreed Mummy and S do
shag. She confirmed it in her letter. On Monday L (the younger) made the only
reference to sexual intercourse with the father. She said she took her clothes
off and lay with her arms in the air and opened her legs. In parenthesis Julie
Willett noted that she played the game with Daddy. There is no account of his
part in the game. She knows what sexual intercourse is but did not allege it.
Then she said she "plays boogie with Daddy" and Julie Willett again noted in
parenthesis that boogie was the same as sex. We do not know how that link came
to be expressed by L (the younger). She said nothing about it at the police
interview. L (the elder) did refer to her brother and mother shagging.
Although at one point she said she did not know what that meant she later
referred to her mother and father making love when they do it. Doctor Ward
reported of the younger girl that no trauma to the hymen was detected though
there was some irregularity there. The posterior fourchette was intact. In my
judgment this evidence was wholly insufficient to justify a finding that
father had sexual intercourse with L (the younger). To equate boogie with
sexual intercourse based solely on a note taken by an untrained interviewer
without knowing how the question was put and how the answer was given is
totally inadequate. The medical evidence does not support the allegation. It
would be unsafe to find the sexual intercourse on that evidence. There is
absolutely no evidence of sexual intercourse with L (the elder). I did not
understand Miss Hamilton Q.C. who now appears for the local authority to
resist that conclusion.
Indecent touching.
- In her first conversation with Maggie L (the
younger) said that Mummy tried to snog her. She told her teacher that Daddy
played with her tits in the graveyard, a prelude to playing boogie. This was a
six year old child, not a sixteen year old. L (the elder) spoke of father
tickling the children but on the stomach which is not suggestive of any
indecency. She did, however, complain of Leif's indecent assault. I will
consider this allegation further in due course.
Oral sex.
- In the first disclosure to Maggie L (the younger)
spoke of Mummy sucking S's dick and Mummy asking her to suck her minge. In her
letter L (the elder) seems to speak of mother and S licking each other's
private parts. L (the younger) told Julie that Daddy put his head up Mum's
skirt and licked it. Later that night L (the younger) said that L (the elder)
had sucked her father's penis but that met with an instant denial from L (the
elder). It was repeated in her absence with the explanation that it happened
when L (the elder) was given a Barbie doll. There is no assertion by L (the
younger) that she actually saw this happening. For my part I find it
impossible to conclude that the younger child's evidence of something she did
not see is to be preferred to the instant denial of the facts by the elder
child. The evidence does not have that degree of cogency to it which entitles
the court to make the finding.
Exposure to pornography.
- The father admits this. L (the younger) told
Maggie on the Saturday that she had watched rude films showing shagging. She
was only six years old. The parents' failure to protect their children is
lamentable.
Exposure to an adult sex object.
- This is an overdramatic presentation of the facts.
What is established is that the father bought a stick of rock shaped like a
penis. The judge was fully entitled to find that with his knowledge and
possibly his encouragement the mother lasciviously licked this sweet. The
children seemed to have joined in the game. It was thoroughly inappropriate.
There is, however, no other evidence of exposure to "an adult sex object".
Participation in a sex game involving family members removing all of
their clothing.
- There are two aspects to this. The one relates to
mother and S exposing themselves and the other relates to the game slam down.
I shall deal with the former first. That was mentioned in L (the younger)'s
first discussion with Maggie. It was accepted the following day by L (the
elder). Both had referred to the police being involved so did the letter. It
was referred to by L (the elder) in her police interview. Moreover it was
referred to by L (the younger) in her second police interview.
- The game of slam down was not mentioned to Maggie
on either Saturday or Sunday when, as the judge found, L (the younger) was
making spontaneous disclosure. The first mention was to Julie in the
discussion that took place before lunch, namely that they all took their
clothes off and once somebody had come to the door and they had to get dressed
again quickly. It is not clear who the participants in this game were. There
is no express evidence that father was involved. When the interview was
resumed in the afternoon and Julie was probing she asked questions in a way
that are not recorded and in a way that do not enable us to judge the degree
to which she led the child if she did so at all. The progression of the
interview as recorded is interesting. What the child was missing was playing
games with S not with the whole family. The game she was describing was
played between her and S. Asked to explain how the game slam down was played
she again made reference only to S then she referred to her mother but
seemingly in a different context of taking her knickers off when she was under
the influence of drink. In that interview father is not involved in the slam
down game. Her allegation against father is different. She said, as I have
already set out, that she lies with her arms in the air and opens her legs and
she explains that this is the game she plays with Daddy. This is more related
to the allegations of sexual intercourse which I have already rejected. She
also referred to Daddy getting his big dick out and shaking it but that was
not said in the context of any game. The only direct reference to father was
later that night when, questioned by Maggie, she described smack down as being
a game where you take all your clothes off with S and Daddy. I express my
conclusion about it later.
- L (the elder) says nothing about the game. There
was evidence given of her being taken up into S's room and being heard to
scream. There was cross-examination to the effect that S was engaged in some
sexually inappropriate behaviour on those occasions but nothing definite
emerges.
Sexual activity between the adults in the children's presence.
- The father admits that his voracious appetite for
sexual intercourse with his wife was uncontrolled and that he made it
perfectly plain what he wanted and when he wanted it. His wife had to submit
to his demands, however unwillingly. The children were very well aware what
was happening. He admits moreover that there were many occasions when they
actually saw him having sexual intercourse and having oral sex with his wife.
It presents an appalling picture of their family life. The extent to which L
(the younger) actually witnessed this activity is not as clear. In her
conversation with Julie she stated that it was L (the elder) who sneaked into
the parents' bedroom and saw them shagging, although she also says, as if from
direct knowledge, that father put his head up mother's skirt and licked "it".
L (the elder) denied to the police that she had seen her parents having sexual
intercourse or her mother doing anything like that with S. Although,
therefore, the precise detail may not be known, the fact remains that these
children were from a very early age aware of their parents' sexual activity to
a degree far beyond that which could ever be acceptable.
Sexual abuse of one child in the presence of one or more of the other
children.
- There is evidence that the girls were aware of
sexual activity between their mother and S but there is no evidence, apart
from the playing of slam down, of father sexually abusing one child in the
presence of another.
Conclusions.
- I am perfectly satisfied after this careful review
of the evidence that it does not have the cogency to justify findings that
this father had sexual intercourse or oral sex with any of his children. The
case against him for indecent touching and playing the "sex games" is less
clear cut. I repeat my reluctance to interfere with the judge's findings
unless I am quite satisfied that she was wrong. These further features of the
case persuade me that she was.
- Corroboration of this evidence is not essential
but one does have to scrutinise it carefully for its internal coherence and
consistency. It is all too easy to conclude from the all pervasive atmosphere
of inappropriate sexual activity and boundaries in the household that some of
the mud must stick. This troubles me. I cannot be sure of the reliability of
the girls' evidence. Some days before L (the younger)'s disclosure to Maggie
she had complained that a boy at school had taken her clothes off in the
toilets and "shagged her". That complaint does not seem to have been received
with any conviction as to its veracity as to have justified an inquiry by the
school. At least there is no evidence to that effect. It was seemingly treated
as a figment of her imagination. On 8th December L (the elder)
complained that a teacher had taken her into the toilets and touched her
private parts yet that allegation does not appear to have been treated
seriously. A consistent thread in the disclosure was of mother and S behaving
badly and the police having to intervene. There is no confirmation from the
police that that happened at all. It is difficult to act on some evidence but
not on other parts of it.
- At the end of this process, one has to stand back
and look at the whole case and the whole way in which this sorry tale emerges.
What emerges from that overview for me is that the girls were not concerned
about their father's behaviour but their mother's and S's. All the disclosure
on the Saturday and Sunday to Maggie related to her mother and S and when L
(the elder) learns about it she agrees with it. Father is first mentioned to
Julie Willett. Later that night there is the disputed suggestion of L (the
elder) having to suck her father's penis. I am struck by the sadness of L (the
elder)'s response in the course of that conversation that they were not being
allowed to go home, not because of what her father had been doing but because
of the rude things that her mother had done. That is exactly what L (the
younger) says in her second interview in January. She is a bit vague about
what Leif had done at the end of that interview when the girls seems to me
truly to open her heart and start talking about the things that really do seem
to matter to her. I repeat this excerpt:-
"Then she went outside and then she smoked, then, this is the
worst thing she done, she went outside, she taked her bra off, she
showed her boobies off. That were dirty. Then going like that, that rude.
That's why I was taken away for. Is it about my Mum doing that? That's
why we were taken away?" I have added the emphasis.
- It is all of a pattern with L (the elder)'s
expressing her wish to the guardian to return home only if the problems that
existed prior to her leaving had ended. When pushed on the nature of those
problems she referred to S and her mother kissing and doing "rude things" when
she is drunk. She would not expand on the nature of those "rude things".
- It seems to me that there we get closer to the
heart of what troubled these girls. In my judgment it would be unsafe to find
that this father was guilty of any direct sexual abuse of any of his children.
I would allow the appeal accordingly.
What is to happen now?
- I remind myself that this is essentially the
father's appeal against the judge's ruling on contact which he left at the
discretion of the local authority but presumably to be exercised in such a way
that it will rapidly diminish as proposed in the care plan. As both the
guardian and the expert psychologist agreed that there was no reason why
father should not have regular contact if not guilty of direct sexual abuse,
then it is tempting to overturn that part of the judgment also and substitute
a defined contact order. Though tempted, I must resist the temptation. This
court is not in a perfect position to judge what is best for the children
today, months after the children were placed in care. The right course, in my
judgment, is to overturn that part of the judgment and if an order had been
drawn to discharge it. I would remit the matter to the judge and I see no
reason why it should not be to Judge Cahill Q.C. despite our overturning her
findings of fact for her to decide what contact is now appropriate.
Lord Justice Clarke :
- I have read Ward LJ's judgment with care and I
agree with most of it but I have some reservations, which it seems to me that
I am bound to mention, although I appreciate that I am in a minority. As Ward
LJ has indicated, the mother has not sought to appeal against the judge's
order or findings, so that we are concerned only with the findings against the
father. The judge found all the allegations in paragraph 1 of the Schedule of
Findings sought by the Local Authority against the father proved. They were
that both parents (thus including the father) had subjected the children S, L
and L to repeated acts of sexual abuse including: sexual intercourse, indecent
touching, oral sex, exposure to pornography, exposure to an adult sex object,
participation in a sex game involving family members removing all of their
clothing, sexual activity between the adults in the children's presence and
sexual abuse of one child in the presence of one or more of the other
children.
- This case has demonstrated considerable
differences of judicial view. The judge made a number of seriously adverse
findings of fact against the father; Wall LJ refused permission to appeal on
the papers in strong terms; and Ward LJ and Sir William Aldous have held that
the judge was wrong in arriving at a number of her conclusions of fact. For my
part, I have arrived at conclusions which are I think less extreme than any of
those judges who have considered the issues.
- The issues must be considered in their context. No
attempt has been made to appeal against the judge's conclusions that the
threshold criteria in section 31 of the Children Act 1989 are satisfied, that
care orders should be made or that T should be freed for adoption. As Ward LJ
has put it, the pen sketch of family life taken from the judgment is enough to
justify the findings of significant harm sufficient to lead to the making of a
care order.
- Moreover, the findings which are not the subject
of appeal by the father demonstrate at the very least the most unsatisfactory
sexual behaviour on his part. Thus, as Ward LJ has observed under the heading
of exposure to pornography, the father admits this allegation. I entirely
agree with him that the parents' failure to protect their children in this
regard is lamentable. I also agree with him that the evidence of the licking
of the rock, whether rightly or wrongly described as exposure to an adult sex
object, was inappropriate. More importantly, the father does not appeal
against the judge's conclusion that there was sexual activity between the
parents in the children's presence. As Ward LJ has said, the mother had to
submit to the father's sexual demands, however unwillingly, and the children
were very well aware of what was happening. The father admits that there were
many occasions when the children saw him having sexual intercourse and oral
sex with their mother. I agree with Ward LJ that this part of the evidence
presents an appalling picture of family life.
- As to the allegations of direct sexual abuse by
the father, the judge correctly directed herself by reference to Re H &
Others (Minors) (Sexual Abuse: Standard of Proof) [1996] AC 563. The judge
saw the witnesses and had a much better opportunity than we have had to reach
conclusions of fact. This court should in my opinion be very careful before
making its own findings of fact in disagreement with those of the judge.
- However, that said, I agree with Ward LJ that the
findings of sexual intercourse and oral sex which were made against the father
cannot stand. The local authority concedes that the judge should not have held
that he committed sexual intercourse with either daughter. There was no
sufficient evidence that he did, if only because the expression 'boogie', even
if described as 'the same as sex', does not sufficiently describe sexual
intercourse.
- I am less sure that the judge was not justified in
finding the father guilty of oral sex but on balance I agree that the evidence
did not justify such a finding. L (the younger) did not say that her father
had had oral sex with her but that he had had oral sex with L (the elder). The
evidence, while admissible, is weakened by two factors. The first is that L
(the younger) did not say that she had witnessed any such event and, according
to Mrs Wainwright, when she said that "L (the elder) had sucked daddy's dick"
L (the elder) immediately said "I haven't". A little later she said that L
(the elder) had told her that "she sucked daddy's dick when she got a Barbie".
While I see the force of the point made on behalf of the local authority that
L (the elder) would be likely to deny it even if true and that the reference
to the Barbie suggests that L (the younger) was not making it up, I can see
that the evidence is not strong given the denial and the absence of direct
oral evidence. Moreover the judge did not focus on these weaknesses in her
judgment.
- However, those conclusions do not involve holding
that L (the younger) was not telling Mrs Wainwright or Ms Willett the truth.
They simply involve saying that the evidence was not sufficient to satisfy the
standard of proof identified in Re H. I do not think that we can
properly say that the judge should have rejected the account of which L gave to Ms Willett and Mrs Wainwright which supports a finding of indecent
touching against the father.
- The key part of the evidence of Ms Willett as
recorded in her note is this:
"Daddy takes L (the younger) to the graveyard when it is dark.
Daddy plays with my [i.e. L (the younger's)] tits in the graveyard. Then L
(the younger) plays boogie with Daddy. (Boogie is the same as
sex)."
That is clear evidence that L (the younger) told Ms Willett that her father
touched her indecently. As stated earlier, the reason for rejecting the case
that the father had sexual intercourse with L (the younger) is not that L (the
younger) was not telling Ms Willett the truth but that there was no evidence
of penetration. It does not follow that the father did not play boogie, which
on this footing is something short of sexual intercourse but which the judge
was entitled to conclude involved indecent touching, to put it no higher.
- For my part, I see no reason to hold that the
judge was not entitled to hold that indecent touching was proved on this
basis. I do not think that the fact that it is not clear what questions Ms
Willett asked provides such a reason. I see no reason to think that the judge
was not able to evaluate her evidence. While I agree that the judge was wrong
to hold that the police interviews had no evidential value and that she should
have held that they were not supportive of the allegations being made by the
girls, it appears to me that that the contents of the interviews are not
sufficient to undermine the evidence of Mrs Wainwright and Ms Willett or the
truth of what they were told.
- As to 'smack down', Mrs Wainwright said this in
paragraph 14 of her statement:
"Later when L (the elder) had gone for a bath, L (the younger)
said that she had told Mrs Willett about "smack down". I had heard the girls
mention this previously, however, had not thought anything of about it. L
(the younger) then told me "you take all your clothes off, with Stephen and
Daddy."
While I suppose that it is just possible that the game of smack down did
not involve indecent touching of L (the younger), it seems to me that the
judge was entitled to find both that it did and that it involved her father.
- The judge had available evidence from a number of
sources, including of course the parents. She saw both parents give evidence.
She was much better able to judge what went on than we possibly could. Wall LJ
was surely right to say that the father was a highly significant person in a
profoundly abusive household. Moreover, having heard the father's evidence,
which (as Ward LJ has demonstrated) was very unsatisfactory in a number of
respects, the judge was entitled to hold that he had only told the court as
much as he felt necessary and that there was a great deal more than he could
yet tell. In short she was entitled to reject his evidence and accept the
evidence of what the girls told Mrs Wainwright and Ms Willett as true.
- I have already given my reasons for concluding
that the findings of sexual intercourse and oral sex cannot stand but, as
already stated, they do not depend upon any lack of credibility on the part of
the girls. It appears to me that, having regard to the nature of the
allegations and the evidence, the judge made sufficient findings on the other
issues. As to the judge's refusal in paragraph 90 to find that S sexually
abused his sisters, it seems clear to me that the judge there intended to be
merciful to S because of the parents' responsibility. If there is any
illogicality between the contents of paragraph 90 and the findings against the
father, it is to my mind some of the findings in paragraph 90 which should be
reversed and not the finding of indecent touching against the father. It would
not, however, be appropriate for us in fact to reverse those findings, any
more than the findings against the mother, because we have not been asked to
do so. As to the police interviews, I have already expressed my view that,
while relevant, they are not by themselves sufficient to reverse the findings
of the judge, either as to indecent touching or as to slam down. I do,
however, agree with Ward LJ that, while there is evidence that the girls were
aware of sexual activity between their mother and S, there is no evidence,
apart from the playing of slam down, of the father sexually abusing one child
in the presence of the other.
- For these reasons my conclusions are in some
respects different from those of Ward LJ but, since they represent a minority
view, it will serve no useful purpose for me to elaborate them further.
Sir William Aldous :
- At the conclusion of the hearing of this appeal I
believed that the appeal should succeed. Having read the judgment of Ward
L.J., with which I agree, there is nothing that I wish to add.
