L (A Child), Re [2015] EWFC B148 (21 July 2015)

JUDGMENT

HER HONOUR JUDGE MOIR:

1. I am concerned with the welfare of A who was born on 18 ^th March 2010, so she is now 5 years of age. She is the daughter of M and F. F has been contacted and stated that he wished to play no part within these proceedings. Z has been joined as an intervener in these proceedings. He was the partner of M at the time that A was accommodated.

2. The Local Authority applied for a care order on 17 ^th July 2014 following upon A making allegations of sexual abuse perpetrated by mother’s partner Z. An interim care order was made on 17 ^th July 2014 before Northumbria Police had carried out an ABE interview. The police requested that no contact be arranged between A and her mother until after the interview which took place on 28 ^th July 2014. Thereafter, contact has taken place. The Local Authority plan is to place A with her maternal aunt MA who was joined into the proceedings. Mother has now separated from Z and wishes to care for A herself.

3. These proceedings have taken far too long. Unfortunately in attempting to accommodate the parties and because of my availability it has meant that the hearing which took place on 5 ^th May over six days has been listed for judgment today. Unfortunately, the pressure of work and other commitments delayed judgment until 29 ^th June and thereafter, it has been very difficult to determine a date suitable for all the parties and for that I apologise.

4. I heard oral evidence, as I have indicated, over six days. I heard from: Y, the head teacher of the nursery that A attended; from Dawn Hodgson and Susan Todd, social workers involved with A; I heard from X, mother’s friend; from MA; M; and Z. I also heard from the police officer Pauline Heads. Unfortunately, because of the length of evidence in the fact finding hearing, there was not time to complete any further consideration of A’s future. Therefore, I have not heard from the guardian, although I have had the benefit of an analysis and position statement from her. Within the position statement, it is set out that the guardian does not urge upon the court any particular factual findings, but awaits the court’s determination of the findings sought by the Local Authority. It is stated on behalf of the Guardian that only when she is assisted by the factual findings made by the court can the Guardian give a final view on mother’s case that A should be returned to her care.

5. That said, the matters admitted to by the mother in her court statements as to the exposure of A to, at the lowest, explicit adult conversation, and the apparent impact on A’s behaviour, is such that the Guardian has significant reservations about mother resuming her role as primary carer without evidence of a significant permanent change on her part. If the court comes to consider a placement other than with mother, then the guardian supports A moving to the care of her maternal aunt, MA. She concludes that the evidence thus far points to the desirability of maintaining A in the family, and the warmth of the relationship between aunt and child is such that the placement should be embarked upon.

6. The burden of proof is upon the Local Authority and the standard of proof is the balance of probability as explained by the House of Lords in Re: B [2008] UKHL 35. Findings of fact must be based on evidence rather than speculation. Re: A (A Child) (Fact Finding Hearing) [2001] EWCA 12; and the court must take into account all the evidence and, furthermore, must consider each piece of the evidence in the context of all the other evidence. In Re: T [2004] EWCA 558; the President, as she then was, Butler-Sloss P stated:

“...evidence cannot be evaluated and assessed in separate compartments. A judge in these difficult cases must have regard to the relevance of each piece of evidence to other evidence and to exercise an overview of the totality of the evidence in order to come to the conclusion whether the case put forward by the local authority has been made out to the appropriate standard of proof.”

7. Further, the court is required to consider how to approach the question of lies when assessing a witness’s credibility. During the course of giving judgment in the Court of Appeal in Re: M (Children) [2013] EWCA Civ 388, Lord Justice Ryder stated that:

“A Lucas direction is a criminal direction derived originally from a case on corroboration, R v Lucas [1981] QB 720. It is used to alert a fact-finding tribunal, that is a jury in a criminal trial, to the fact that a lie told by a defendant does not of itself necessarily indicate guilt because the defendant may have some other reason for lying; that is, he may lie for innocent reasons. A witness may lie because she lacks credibility, or because she has an innocent motive for lying. If she lies about the key fact in issue, that is one thing; if she lies about collateral facts, that may be quite another. A judge of fact may not be able to separate out [each] fine distinction, but may nevertheless conclude that an allegation is proved, despite the fact that the witness has lied about other matters.”

8. The evidence of the parent and any other carer or adult with whom the child has had contact is of the upmost importance and therefore it is essential that the court forms a clear assessment of the credibility and reliability of such individuals; Re: W and Anor (Non-accidental Injury) [2003] FCR 346. I have already reminded myself of the Lucas direction, but I must also have regard to the case of Re: M (Children) [2013] EWCA Civ 1147 in which in considering lay evidence, Lady Justice Macur offered the following guidance:

“The judge’s assessment of the parents’ characters, past behaviour and present attitudes are entirely dependent upon finding primary fact, interpreting and drawing reasonable inference from the same. I agree with Miss Ball QC, they are unassailable on appeal. The judge was obliged to reach her conclusions on the whole of the evidence and was not bound by the opinions of others, however eminent in their field. The judge states the basis of her departure from their views, namely that of her ‘good opportunity not only to hear the witnesses’ evidence but to observe their demeanour and credibility’. Conscious that such comment is trite in first instance judgments it is pertinent to note in this one under review that the judge’s description of the mother and father when giving evidence before her is analytical and detailed and obviously draws upon more than their performance in court. It is obviously a counsel of perfection but seems to me advisable that any judge appraising witnesses in the emotionally charged atmosphere of a contested family dispute should warn themselves to guard against an assessment solely by virtue of their behaviour in the witness box and to expressly indicate that they have done so.”

9. It is undoubtedly the position that a case of this nature is emotionally draining and traumatic for a mother or, indeed, any other adult giving evidence in court and I bear that in mind when assessing the evidence of the parties from whom I heard evidence.

10. The task for the court is to determine from the evidence whether A has been sexually abused and, if so, whether it is possible to identify the perpetrator. The only names that have been followed up by the Local Authority or, indeed, the police are those of Z and M. Although there was mention of W in the ABE interview and possibly of V, the police made no investigations into anybody named W or V. It is, I find, clear from all the evidence that if there has been sexual abuse, then the pool of perpetrators is confined to Z and M. It is important to identify the perpetrator if it is possible and the test that the court must apply is whether there is a likelihood or real possibility, North Yorkshire County Council v SA & Ors [2003 EWCA Civ 839. The court should not strain the evidence in the search for a particular perpetrator: Re: S-B (Children) (Care Proceedings: Standard of Proof) [2010] 1 FLR 1161 and Lancashire County Council v D&E [2008] EWHC 832 (Fam). The duty upon the court allows cases of genuine uncertainty or uncertain conclusion.

11. Turning then to the facts of this case, there was no involvement by Children’s Services with A or M until 16 ^th July 2014. Prior to this date, there had been referrals to the community nurse from the health visitor to request assistance with A’s feeding and diet. M was expressing concern about A’s diet and behaviour. The nursery reported that M had expressed difficulty in managing A’s challenging behaviour and was requesting support. A was recorded as reaching age-appropriate milestones but with possible minor delay in gross and fine motor development. A, however, scored full marks for communication. When asked during the assessment prior to any allegations being made whether A showed an interest or knowledge in adult sexual language or activity, M answered very firmly, “No.” M reported that A was defiant and did not listen.

12. It is recorded on 13 ^th June 2014 that M had asked for one more visit from the team as A’s behaviour was affecting the relationship between M and her partner Z. When A became known to Children’s Services on 16 ^th July 2014, she was 4 years and 4 months of age. The head teacher, Y, at Nursery A, informed Children’s Services that A had made disclosures of sexual harm perpetrated upon her by Z who was mother’s partner at the time. Y explained in the course of that call that A had been asking other children if she could lick their bums. Y stated in the call that when she spoke to A, A disclosed that Z sits on her face and makes her lick his bum and he licks her bum.

13. Y gave evidence before me. A had started nursery in the April of 2013 and the nursery had frequent contact with M. Y said that she had frequent contact with both A and M. She told me that when A first started nursery , she was confident, well settled, and happy to be there. Y stated that in the summer of 2014 A changed. M in her statement stated that A’s behaviour started to deteriorate about April of 2013, but there is no record of M having any problem with A’s behaviour until 7 ^th May 2014. I prefer therefore the evidence of Y that the change in A’s behaviour could be dated to the summer term of 2014 when M told Y that she was at the end of her tether.

14. There was concern, because when A was at the nursery she had used inappropriate language. She told the staff, “The hairdresser’s fucked up my hair.” She used the word “paki”. Y told me she felt that she had a good relationship with M, but M would laugh at inappropriate things and Y agreed in cross-examination that M demonstrated immaturity in her dealings with the nursery and with A.

15. On 8 ^th July 2014, there is a record in the nursery followers form and I read from C133 within the bundle:

“8 ^th July 2014: yesterday, A was in the hut with two other children. A lifted up her top and asked the others to lick her tummy. The boy then got on the table and pulled down his pants and A said, ‘Let’s lick his bum.’ One of the girls then went up to do this, so they were stopped. A’s mum was informed. A was playing outside. U overheard A talking about the ‘lick your bum game’. I asked A what she said to T, ‘Lick your bits and bum’. I asked A, ‘How do you play that?’ She said, ‘I don’t know’. ‘Where do you hear that, at nursery or at home?’ A said, ‘At home. Z and mum say it. He always says stuff, paki and everything, but mum doesn’t say it anymore’. I told mum about the above incident and mum said that it’s not said at home. She said she will have a chat with A about this.”

16. It was not until 16 ^th July that Children’s Services became involved when they were informed that A had made disclosures of a sexual nature. A had been observed asking another child to lick her bum. She was taken to see Y. When A was asked, “What is going on with the ‘licking the bum game’?” A responded saying, “Z licks me all over.” A note was taken of what A then said. The note is exhibited at G130 and I read from the note:

“Y: What were you telling me about Z?

A: He licked me all the time all over. He licks my bum.

Y: Where’s mum? Z licks your tummy?

A: Out on a message.

Y: Which room?

A: My own room.

Y: Your bedroom. What does he say when he does it? How do you know when he wants to lick your bum?

A: Things about... [and I am afraid I cannot read the next word] ...and you close your eyes when I go to sleep, he puts his bottom to my face. He cries.

Y: What does his bum look like?

A: His front bits. Wee.

Y: Do you think mum knows Z licks your bum?

A: [Nods].

Y: Have you told mum that Z licks your bum? What does mum say? Does she tell him off or let him do it?

A: Let him do it.

Y: Is it okay, or do you tell him to stop?

A: I want him to stop.

Y: When you tell Z to stop licking your bum, what does he say?

A: He cries because I lick his bum.

Y: Does he ask you to lick his bum?

A: [Nods].”

17. M attended at the school for what they called a graduation and afterwards was told there had been an incident. M’s immediate response was, “Well, she’d be lying.” Y set out in her statement that she was surprised by this response as M did not ask what A had said and at that stage M did not know what A had said. Y reported that M kept saying, “A is a liar” and also that no one in the family believes her. Y said in oral evidence, “I wondered why she did not ask me what had happened.” Y recalled M saying:

“I will break every last bone in her [A’s] body before you, Social Services, take her.”

18. Y told the court she thought M meant that she would keep tight hold of her, not that she would harm A. Y spoke to M the following day when M said she had got rid of Z and that A would be safe with her. Thus, despite the fact that she was articulating that she believed 100 percent that Z had not done anything, she ended the relationship, either because she did believe it and/or she thought A would then be returned to her. It is not possible to determine which. Y said that M did not come across as distressed and anxious when told of the disclosures and that it was not until the police officer spoke about taking A into care that she became distraught.

19. I have seen a transcript of conversation between M and X, her friend, which it seems was accidentally recorded on the answerphone. Y said she did not get the impression it was intentionally made. M referred to it being, “...Z’s fault, going on about licking arses and rectums in front of her.” It is a curious coincidence that the nursery answerphone should have recorded this very conversation the day after A’s disclosures.

20. Dawn Hodgson had lengthy discussions with M on 16 ^th July 2014 and M maintained throughout that A was lying, and that she trusted Z 100 percent. It was stated that she said he was the best thing that had ever happened to her. M was adamant in evidence that she had said A was the best thing that ever happened to her, not Z, but in looking at the context of the discussion, I accept that during the course of these discussions, M was referring to her relationship with Z and her reluctance to end the relationship with him. I do recognise, however, that M terminated her relationship with Z the following day and it seems that the relationship has not been renewed.

21. Further, although her reference to breaking every bone in A’s body seems more likely viewed in retrospect to refer to retribution for telling lies, Y who was present and described M as distraught did not take it that way, and Dawn Hodgson said in evidence that her belief was that it was said to prevent them, Children’s Services, removing A from her care. I accept the views of those two persons who were present at the time.

22. Dawn Hodgson referred to M saying to her that the family all felt A was a liar and A was always spoiling things for her with her lies. There was no concern expressed by M for A herself in this situation. There was no change in M’s responses throughout the two-hour discussion. She maintained that A was lying. Dawn Hodgson agreed in cross-examination that at the time of her involvement, it was Z who was viewed as the alleged perpetrator and not the mother. At this stage, A had not mentioned her mother. M, when asked, told the police officer that A may have heard some discussions between M and her friends.

23. A was spoken to by Dawn Hodgson and DC Marshall. She was difficult to engage, but said that Z asked her to lick his bum and Z licked her bum. A also spoke about the ‘lick your bum game’. The note of the conversation is at G18 within the bundle and I read from that note:

“Officer: Licking bums all the time?

A: I do that all the time.

Officer: Where?

A: In the toddler’s house.

Officer: Well, what happens at home?

A: Said all about it. I said when Z said ‘paki’ and Z said, ‘Lick my bum.’ He says it all the time.

Officer: He says it all the time?

A: He does it to me all the time and then mum does.

Officer: What does mum do?

A: Licking Z’s bum. I told Y all the things about them. I said, ‘Close your eyes’.

Officer: Z said, ‘Close your eyes’?

A: ‘Let it go. Close your eyes.’ Z says ‘paki’ and ‘fuck’. Mine and Z’s. I lick Z’s. Z licks my bum. After he’s licked my bum, he cries and closes his eyes.”

There is then reference to something else and then:

“Officer: Which bit?

A: Bum.

Officer: What used for?

A: Pooing and weeing. Front wee, bum poo.

Officer: Where did Z lick?

A: Both bits.”

24. During the journey to the foster carers with Dawn Hodgson, A spoke about Z licking her bum and A licking Z’s bum. She commented that this tasted ‘nasty’.

25. The recommendation was that A should undertake an ABE interview with an intermediary used due to the child’s age and learning. An ABE interview was not undertaken until 28 ^th July 2014. I have had the opportunity to watch the video of this interview. A was distracted and difficult to engage. No intermediary was available at the time and the police were informed that there would not be an intermediary available for another three weeks. The decision was taken to undertake the interview.

26. PC Heads told me in evidence that if a long period of time elapses for a child of this age, the child thinks that no-one is interested. An intermediary was consulted and advised PC Williams how to undertake the interview and what questions to ask, but the intermediary was not present. There was no attempt to ascertain truth and lies. The police did not give credence to everything A said, and afterwards did not do more than ask M about the allegations made by A that mum stabbed a rabbit and made her eat poo. In relation to the latter allegation, when dealing with it in oral evidence, M gave an account which was clearly untrue or, at best, very muddled.

27. A was very difficult to keep on track. She was asked within the ABE interview:

“Officer: So, you told Y something happened at your house? Can you remember what it was?

A: Z licks my bum.

Officer: Who licks your bum?

A: My mummy.”

28. A also said “Clare” in response to the question, “Who licks your bum then?” There was some attempt to find out who “Clare” was from A and a suggestion from the police officer was given that she was referring to Nursery C. It was suggested when the advocates in court watched the video that where the transcriber had said that the words were inaudible, that the name “Grace” was heard.

29. The CPS did not advise that any charges should be brought apparently on the basis of insufficient evidence. It is argued on behalf of Z and M that no credence should be given to what was said in the ABE interview and that the lack of an intermediary and lack of adherence to the ABE process rendered the interview unreliable and possibly misleading. There are a number of difficulties with the ABE interview and, by itself, it would be unhelpful to the court. I can place little reliance on what is said within the interview because of its poor quality and A’s clear distraction, but, of course, I consider it along with the other evidence.

30. It is not the only evidence in which a disclosure is made or allegations articulated. I must look at the quality of the other disclosures and indeed all the evidence before me including that of Z and M against whom the Local Authority wishes me to find facts. The evidence includes A’s behaviour in foster care. The evidence in this regard is contained within the written statement of S. She was not required to give evidence before me. She described sexualised behaviour and other behaviour which raised concerns, and I read from C167 within the bundle at paragraph 18:

“A has demonstrated sexualised behaviour in my care. In addition to the above, A has touched my breast, tried to stroke the crotches of our male friends and family, puts her finger in her mouth and strokes her tongue, and poses/dances provocatively. She will often lift her legs up in the air and pat herself in between her legs. We have a neighbour, and every time she sees him, she tries to touch his crotch. We have now said that when she greets him, she should ‘high five’. A appears to demonstrate more sexualised behaviour when she is in a group setting. It is like she is charged with getting everyone’s attention and her body language changes. Not so long ago, we were at my sister’s house. There were a few of us there and her energy levels had risen. She entered the room, sat down, and said, ‘Lick me where the wee comes out of’ and then repeated this. She did not ask anyone in particular. She was just saying it out to the room full of adults. A becomes quite transfixed with men and strangers. For example, we were travelling on the Metro on 14 ^th September and A started smiling at an unknown male. She started to open her legs and touch herself. I told A to sit nicely, which she did initially, but then started doing it again. She then started to stick her tongue out at a young couple and starting stroking her tongue with her finger back and forth. You could visibly see the shock on the girl’s face. She manages to lock eyes with whoever she is looking at. It is very intense. I tried to move A as best as I could, but the Metro was very busy. A continued to touch herself between the legs until the couple left the Metro.”

31. In addition, the foster carer said that, “A quite frequently pulls her genitals apart and tries to get me to look.” The foster carer also stated at paragraph 8 of the same statement that:

“Over the time A has been in our care, she has made some very concerning disclosures and I found these to be quite shocking. On 4 ^th August, A told me that her mum is nasty to her and calls her a ‘fucking paki’ and says ‘fuck’ all of the time. More recently, A has said that her MA says ‘paki’ and ‘fuck’ all of the time. A has also said that her mummy calls her ‘dickhead’ and that her mum licks on the bum where poo comes out. A started pointing in between her legs and also said, ‘Where the wee comes out.’ A said her mum asked to lick hers as well, meaning where her mummy wees out. This was the very first of A’s disclosures to me. On 11 ^th August at bath time, A asked me not to touch her bits. I reassured her that I would not. She said her mum sometimes sniffs her bits, washes her bits, and licks her bits. I remember this very clearly. A has made other disclosures since and these are all noted within the diary I have kept.”

32. When she was first placed in foster care, the first foster carer said that A wanted reassurance that the foster carers were not going to touch her private parts. When M was first told of A’s allegations, she was very clear that A was a liar and that she did not believe the allegations and she continued to deny the possibility of Z having done anything until the end of September. In her response to the threshold dated 21 ^st November 2014, she sets out that, “It is accepted Z has sexually abused A,” and she then goes into some detail in her statement dated 18 ^th November 2014 saying that there are lots of things strange about Z and about his relationship with A. She told the social worker on 2 ^nd October when asked whether she thought A had falsely accused Z, she said, “No, A’s version is too graphic,” but said that the social worker should believe that she, M, had not done it.

33. In her statement dated 21 ^st April 2015, M set out a different conclusion and I quote from that statement at C237, paragraph 3:

“I have found it very difficult to think clearly about the situation and form a view on what has happened. Having now considered all of the evidence in this case, I do not think A has been sexually abused. I have not sexually abused her and I have no knowledge of anyone else abusing her. I am of the view that the explanation for the behaviour that A is exhibiting is that she has been exposed to seeing and overhearing things of a sexual nature.”

34. M maintained this position in her oral evidence before me. Z has always denied that he has been responsible for any abuse of A and has stated that he has no idea why she has made up the allegations. It is not for M or Z to prove that they did not sexually abuse A, but for the Local Authority to prove their case that they did.

35. The mother’s case supported by Z is that A has overheard remarks made by her, the mother, and heard things that she should not have done, and that she may have seen a video by Miley Cyrus or other provocative videos, and that she may have seen Geordie Shore, or accessed porn. Both mother and Z, however, say separately that if A did access porn, it was not on their individual phone.

36. M was interviewed by the police on 2 ^nd September 2014. She told the police that A would have heard her saying things regarding her sexual relationship with Z to her friends. In her evidence to the court, M said that she had only licked Z’s bum once or twice and when asked how come A was entirely focused upon it, she said it was because she mentioned it a lot. She could not explain why, if it only happened on one or two occasions between her and Z, that A mentioned it a lot and continued to mention it even after removal into foster care. Further, she could not explain why A referred to that part of M’s sexual relationship and no other description if she had been listening to M’s conversation.

37. When spoken to on 16 ^th July, there is a note that M had told the police officer that when she had talked about sex with Z in front of A, she said it was mainly innuendo between herself and Z. M also stated that A had said a long time ago to her sister MA, when in MA’s care, that Z had licked her bum and that MA had informed her of what A had said. Mother said both MA and she had told A off for saying things like that. She said A had said this not long after Z had moved in, but she said it was just what kids do and say and that A was telling lies. M filed a statement which is undated but must have been after 21 ^st April 2015 in which she sets out:

“I am aware that within the court bundle there is a note of the police officer’s discussions with me on 16 ^th July 2014. This note suggests that I told the police officer that A had disclosed to MA that Z had licked her bum and that I had spoken to MA about this. I am also aware that MA has prepared a statement with the police indicating that she has no knowledge about this. I can confirm that A did not make a disclosure to MA about Z licking her bum. Therefore, MA and I have not had a conversation about it. Had this happened, I would have asked Z to leave. I cannot recall exactly what I spoke to the police about on 16 ^th July, but I do recall telling the police that A had disclosed to family members, including MA, that I have hit her. This was A telling fibs. I have not hit A save for once tapping her on the back of the hand. I do not know why the officer has recorded what they have as I did not say it. It could be that they have mixed it up with me telling them that A told MA that I had hit her.”

38. In oral evidence, M accepted that she had said that A had told MA about Z licking her bum and that this assertion within the most recent statement was a lie. She denied that she did it at the time to put the blame on Z, but she could not explain why she did it. When the account of A’s behaviour in foster care was put to M, she told me she did not see A behaving in that way in her care, and specifically in relation to the account of what happened on the Metro. M said she did not think A did do that, and she said she did not know why A was doing it, if she did it. However, M did see A’s behaviour at the swimming baths, as did X, as they both told me about it. They described A pulling herself apart. Both were shocked, they told me, and M told A it was rude. X and M also both described A sitting on teddies and dolls. X said she did not think anything was wrong with that, she was just experimenting. M said it was not sexualised in her eyes. Neither M or X could explain why, if they did not think it was sexualised behaviour and there was nothing wrong with it, that they felt the need to mention it in conjunction with discussion about sexualised behaviour.

39. The foster carer described A pulling her genitals apart and wanting the male foster carer to look at her bits. The foster carer described on 25 ^th October A thrusting up and down in a sexualised manner as it was described that she did to her teddy and her doll. There is a police note in relation to this matter; Saturday, 25 ^th October 2014, an account of what was told to the foster carer:

“Tonight, A put her Peppa Pig blanket over the poofs in the snug. She placed it so the picture of Peppa was spread over the top. She lay on top of the poof on the picture of Peppa face down and started bouncing her pelvis up and down while looking at me and laughing. I distracted A but she did it again about 30 minutes later. While I was in the kitchen, she placed her blanket over, just as before, and I saw her doing the same motion on top of Peppa Pig when I walked back into the room.”

40. M is aware, from what has been described and what she herself has seen, that A’s behaviour is of considerable concern. All taken together, I am satisfied her behaviour is not just of a child experimenting, but of a child who has been exposed to behaviour and matters which have caused her to behave in a sexualised way and to exhibit sexualised behaviour. I have considered whether being exposed to videos of pornography can account for all her behaviour. There is no evidence, in fact, that she has watched pornography. A has never said that she has done so and M is adamant that she could not have done so on her phone and so was Z. He said that A did not have access to his phone and it was always passworded and monitored. Both were also sure that A had not seen them having sexual intercourse together. M and Z said A liked watched pop videos and M brought to court a video of A dancing. It may be that A did copy what she saw on music videos. It does not explain her more extreme sexualised behaviour, nor does it explain what she has repeated on a number of occasions to different people.

41. I heard X giving oral evidence before me. She was not a credible witness. She told me that M talked about her sex life a lot and in detail. She told me most times it was the highlight of their conversation. M would talk about it six out of seven days a week and would talk about it most weeks. Apparently, X told her to be quiet and if X was firm, M would be quiet. My note of X’s evidence is as follows:

“A. She would use them words, ‘licking’, childish words. That’s the word used. Told her licked his bum. She said he had done it a few times.

Q. How often did she use this expression?

A. Not every day. Two or three times a week.”

42. It was put to her that it was said it occurred once or twice:

“Q. Why did it crop up so often in the conversation when she only did it once or twice?

A. She used to talk about it a lot, which occurred very regularly. She just did.”

43. It was put to her that that did not make sense and the response was, “She spoke about it quite a few times.” She said she was telling the truth and it happened whilst the children were in the garden. Paragraph 11 of the statement was put to her and she said, “R would play out,” when she was asked, “Why was your daughter not exposed to it?” She said:

“She mustn’t be a child to pick things up or experiment. My daughter’s never said anything of this nature.”

44. Z said that M would talk about their sex life and that he did not like it and told her to stop. He said that M may have licked the cheeks of his bum once or twice. He would not let her near his anus and said it was disgusting that she would want to do that. He said he did not do it to M. Z told me that he did not believe that A had been sexually abused but that she would have overheard the conversation between M and her friends, including the description that A gave that it tastes nasty.

45. MA told me that M had spoken to her about her sex life using graphic detail, she said on one occasion when their dad was there and that she, MA, felt uncomfortable. She told me that M had also talked about her sex life before that occasion. MA did not mention the specifics about which M talked. MA was a credible witness. She was straightforward. She told me that A had said that she wants to live with MA because she did not like her mum and dad. MA told me a lot of the information that she had heard within the course of the evidence in court was new to her. She said that she was disgusted. She told me:

“I think it’s disgusting to say that she didn’t believe her 4-year-old and to say the family didn’t believe it when we didn’t know anything.”

46. She told me that she saw A dancing. When she saw it, it was not sexualised and that A did not have a problem, as far as she was concerned, with lying. MA then said that A would tell little fibs about things like not tidying her room, but that she was not known as a liar.

47. While I accept that M may, on occasion, have talked to her friends about her sex life, I do not accept that something which happened twice according to M, and once or twice according to Z, was the topic of conversation repeatedly as claimed by X and M. Nor do I accept it as a credible explanation for the disclosures A made or for her behaviour either in M’s care, according to M and X, nor in foster care as described by the foster carer and noted in her diary.

48. A talked about it tasting nasty. I am satisfied that she was describing her experience. A talked about the ‘licking bums game’. It is not claimed that M referred to it as a game and thus A must have transposed something she heard into an activity in a game if M’s explanation is correct. A also gave detail about licking her bits. It was not a generalised description. At C166 within the bundle, there is reference to Q. The foster carer sets out

“On 4 ^th September, A had been to contact. When A came back, she came into the kitchen and she wanted to sit with me. A told me that, at contact, she told her granddad that Q had asked to lick her tummy. A said she had licked Q’s bits instead. I asked A where she was and she said was in the brown house. I didn’t know at that point where it was and presumed it was at school. A was excited when she was telling me this. She was grinning and she had her hand in her knickers touching herself. It was like she was really excited by her disclosure. On 10 ^th September, A told me that Q had licked her bits and her bum in the brown house. I asked her exactly what had happened. She said she had been chasing two boys and then she and Q went into the brown house and Q licked her bits and bum. A told me that she did not lick Q because she didn’t like the taste. Not long later, A went into the toilet and she shouted at me to get toilet roll. When I went into the toilet, A was standing there pulling herself apart and pointing to her bits saying, ‘This is where Q licks’.”

49. It was submitted on behalf of M and Z that the evidence from the foster carer that A told her she did not lick Q because she did not like the taste was relevant in considering what A said earlier. It can, in fact, support what A said before if interpreted one way. I accept that it can be interpreted otherwise.

50. Taking the evidence altogether, acknowledging the poor quality of the ABE interview, and that when the teachers and police spoke to A on 16 ^th July and before the ABE interview, no truth or lies discussion took place and that some questions were prompts, I am satisfied that this little girl, A, has been sexually abused. As M said at an earlier stage in the proceedings, the descriptions are too graphic to be merely repeating what she has heard her mother say. I do not accept that the mother discussed Z licking her bum or her licking Z’s bum over and over again as claimed by X, whose evidence I find was untruthful. If it was the explanation it would have required A to be very selective and just repeat what must have been a very small part of whatever mother did recount to friends and family and only part of what M said she told her acquaintances.

51. I am satisfied that A had experienced what she described. Her descriptions were such that I am satisfied she must have experienced it. I am satisfied that M was an untruthful witness and it seems that A was not noted or prone to telling lies. It is submitted that A repeats things, as she undoubtedly did in referring to the hairdresser “fucking up” her hair and referring to “paki head,” “pisshead,” and “dickhead,” words which she should not have heard. However, I find that A’s disclosures about sexual abuse are of a different quality than just repetition of words. Also, if it was repetition only, it seems from the evidence given to me that A never repeated it to either M or Z, or asked them to play the game.

52. It is submitted that the police demonstrated a selectivity in what they investigated, ignoring reference to Clare, or Grace, and chose what to rely on and what not to rely on. It is submitted clearly some things A said were not true. Thus, it is submitted nothing A said can be relied upon. It is right that some things that A said were not true, but the court has to look at all the evidence and how it fits in with other evidence. The authorities make that method of approach very clear. I have been very careful not to speculate, but A’s disclosures and behaviour were heard and witnessed by more than one individual, and all the evidence before me, is sufficient for me to find that it is more likely than not that A has been abused.

53. A told the foster care that M and Z smacked her and it hurt, M called her a “fucking paki”, and would say “fuck” to her. Z confirmed that M slapped A approximately twice a month and he recalled an occasion when M claimed to have hurt her hand smacking A. In my view, it is telling that the mother informed the court that, in not asking what A had said or disclosed on 17 ^th July, she just thought the disclosure was referring to physical abuse because, “A was always telling people I’d hit her.” M said that A was a liar. What is also surprising is that M did not, on her own account, think the disclosure or incident was anything of a sexual nature, surprising bearing in mind that only eight days earlier that she has been told by the nursery about the ‘lick bum and bits game’ that A had been playing. MA confirmed that A had told her that M had hit A.

54. I am satisfied that M did hit A probably by way of a slap. A also said that Z slapped her. I find that somewhat more difficult to determine. Z came across in evidence as quiet and certainly less aggressive than M. Unlike the position with regard to M, there is no other evidence that he hit A that I can recollect. It is, I find, insufficient for me to be satisfied and make the finding that Z hit A.

55. Being satisfied that A was abused, the court must decide whether the perpetrator can be identified. Initially, A said it was Z who licked her bum, but later included her mother. Z accepted that he would have had the opportunity, but said to the court that he did not do it. M accepted that Z had had the opportunity to abuse A. M was the main carer and thus obviously she also had the opportunity.

56. Z said that A could not have heard anything at home which he now says was a lie. He told unusual lies about his sexual history to the police because, he says, he was embarrassed. There is a difference between M and Z as to whether she licked his anus, and Z saying that at one stage they were only having oral sex, which M disagreed with.

57. All in all, both M and Z have been shown to be mendacious and unreliable witnesses. I remind myself of the Lucas warning to which I have already referred, but the difficulty for the court is that I cannot rely upon anything said by one or the other unless it is backed by other cogent and reliable evidence from other sources. The allegations were only made once Z was present in the household and part of M’s life. The games at nursery are only reported when Z is living within the household. The mother accepted that A was abused by Z and then changed to say that there had been no sexual abuse. Mr McCain points out that the reason must be that if there was reliance upon what A said, then mother would also be implicated and that if she accepted that A’s behaviour was sexualised, it also rebounded upon her.

58. It is undoubtedly the case that A’s behaviour had deteriorated from May onwards and that M was seeking assistance in this regard. M was not named by A until 28 ^th July and A repeated the allegations against her mother on three further occasions in August: on the 3 ^rd, 11 ^th, and 14 ^th. I do not know exactly what part each played, but I am satisfied that M was involved and was not in ignorance of what had occurred. M was informed about what had happened on 8 ^th July. She had already been told about the ‘lick your bits and bum game’. The difficulty for this court is that M has told so many lies, it is difficult to place any reliance on anything she has said. Her behaviour to A has been unfeeling and abusive even without with the sexual allegations. A has named her mother as being involved in the sexual allegations and I am satisfied, on the balance of probability, that she was involved in some way. A was exposed to language and behaviour which were damaging and detrimental to her. A was also hit by her mother.

59. I am satisfied that Z, whom A named from the outset, abused A. It is not only the specific nature of the disclosure, but her behaviour afterwards. A 4-year-old does not behave in this way without something occurring to prompt it. Her allegations against Z were specific and unusual. Her actions indicated she had experienced it, not just that she heard reference to Z licking M’s bum, which he denied in any event. Z said M licked his bum once or twice. M said it had happened twice and Z licked her bum also. I am not satisfied for the reasons set out within this judgment that reference to this activity, which it seems was a small and infrequent part of a sexual relationship, could have been sufficient to account for A’s disclosure and behaviour. **

60. I find that the picture painted of life for A in her mother’s household is bleak. The physical home conditions were good and A was fed and clothed appropriately. However, the adults had no regard for how their behaviour was damaging A and she has sustained very significant harm as a result. I make the findings which are set out in the threshold in accordance with the judgment that I have given.

[Judgment ends]

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	England and Wales Family Court Decisions (other Judges)
You are here: BAILII >> Databases >> England and Wales Family Court Decisions (other Judges) >> L (A Child), Re [2015] EWFC B148 (21 July 2015) URL: http://www.bailii.org/ew/cases/EWFC/OJ/2015/B148.html Cite as: [2015] EWFC B148

England and Wales Family Court Decisions (other Judges)