EXTRA DIVISION, INNER HOUSE, COURT OF SESSION
Lord Menzies Lady Dorrian Lord Wheatley	[2013] CSIH 7 XA/13111 OPINION OF THE COURT delivered by LADY DORRIAN in the APPEAL by SA Pursuer and Appellant; against DA Defender and Respondent: Marion Foy Curator ad litem _______________

Act: J Scott QC; Millen, Solicitors, Glasgow

Alt: J J Mitchell; Edinburgh Law

Curator: Murray QC; Hughes Walker

13 February 2013

[1] The pursuer and the defender are the parents of a child, K, born 5 July 2005. The pursuer (father) is an Algerian national who entered the UK illegally in about 2001. He currently has leave to remain in the UK on account of his pursuit of contact with K. The mother and father have never lived together for any length of time. Their relationship deteriorated from about the time of the child's birth and is described by the sheriff as "volatile". During the subsistence of the relationship, the pursuer exchanged affectionate messages with another woman, which were discovered by the defender. They entered into a religious marriage ceremony in accordance with Muslim rites in June 2007. The pursuer divorced the defender in accordance with those rites in about August 2007. As he accepted in evidence, at some point the pursuer offered the defender £10,000 if she would give the child to him. In the course of the sheriff's note, the pursuer is referred to as "the respondent" and the defender "the minuter" (reflecting the application to recall the contact order). In an attempt to avoid confusion the same terminology will be adopted here.

[2] A contact order in favour of the respondent was made by the sheriff at Edinburgh on 27 October 2008. That order was recalled ad interim on 23 July 2009, following allegations by the mother that K had reported to her inappropriate touching by the respondent. A final order for recall of contact was made after proof, on 10 November 2011. The contact order had been for two hours unsupervised contact per week, at a contact centre. However, additional contact took place by agreement of the parties. This took place outwith the contact centre, and on occasions the child stayed overnight with the respondent. For a period in April and May 2009 the parents resumed a sexual relationship, with the result that on occasions the respondent stayed overnight at the minuter's house.

[3] The allegations of inappropriate touching were made after something K had told her mother on one morning in late May 2009, about the 23rd. The evidence before the sheriff was that on that morning, K joined her mother in bed, and they began talking. The minuter was rubbing the child on the tummy and the child said "now rub my bum". Her mother then started to rub her hip and buttocks, at which point the child said "no, like this", and started rubbing her vagina up and down with her hand. The minuter said "who does that" and the child replied "Papa". The minuter, although shocked and alarmed, was anxious not to react in the presence of the child. She then telephoned her mother, Ms G. Ms G gave evidence at the proof that during that telephone conversation the respondent was distressed. Ms G, who has a good relationship with K, came straight away to the minuter's house and went to play with K in her bedroom, in the absence of the minuter. K has a large doll, and after a while of playing, Ms G asked the child, under reference to the doll, but without pointing to any specific part of the doll, where the respondent had touched her. The child did not use the doll but touched her own vagina, over her clothing. Ms G asked where this happened, and specifically if it happened in the bathroom but the child said no, it was in her "Dora" bed. ("Dora" is a character on children's television and K has numerous "Dora" themed items in her room.) Like the respondent, Ms G was taken aback but tried not to show this in front of the child.

[4] The respondent is of the Muslim faith, and the sheriff tells us that "There was uncontentious evidence that the respondent's practice (in accordance with his religious tradition) in cleaning after the use of the toilet involved cleaning with water." It is clear that both the mother and grandmother, faced with what the child said, were searching around for an innocent explanation. They considered the question of whether the child was confused, and had possibly been referring to the respondent cleaning her after using the toilet. As a consequence, a day or so later, the respondent initiated a conversation with the child whilst bathing her. She asked the child whether the touching referred to had not occurred when she was being washed after using the lavatory. The child said no. She then "opened her flower with both hands and pointed to her clitoris and she said "he touches at this bit here"". Asked if she was sure it was not in the toilet, she said no, it was in the "Dora" bed.

[5] The respondent contacted the social work department. Two interviews were conducted with K, each by PC Botha and a social worker Frances Baird. The child did not make any allegation of improper touching in these statements. The first statement included the following questions and answers:

"Does Papa rub your tummy?"

"Yes"

"Does he rub you anywhere else?"

"No"

"Did you tell mummy about papa rubbing you anywhere else?"

"No"

In the second interview, after a series of questions about being rubbed on the tummy she was asked "does anyone rub you anywhere else?", the child answered "I don't want to talk anymore". These interviews were referred to as the Joint Investigative Interviews (JIIs).

[6] Thereafter the respondent applied to the court for contact to be suspended and Miss Foy was appointed by the court as curator. Ms Foy met K on two occasions. In the course of the first meeting, K told Ms Foy that her mother and father both check out her bum "because it sometimes gets dirty" and that her papa also checks her flower (meaning private parts). She said that he washed her bum with water in the toilet and that he touches her flower in bed, without water. In giving evidence, Ms Foy then stated "She then spontaneously showed me how he does it which involved putting her hand backwards and forwards between her legs". Miss Foy opened the second meeting by telling K that she had come back to have another little chat, to which K responded "have you come to ask about my papa touching me on the bum?" The child was again clear that there was touching in the bathroom, which involved water; and touching in the bedroom, which did not.

[7] Prior to the proof, a report had been obtained on behalf of the respondent from Professor Amina Memon, a professor of psychology with particular expertise in relation to the interviewing of children, especially when allegations have been made of sexual behaviour towards them. In her report, she focused on the JII, explaining the techniques which should be followed in such interviews. These are explained in detail in her report (5/12) but they include making sure that children understand the importance of telling the truth, allowing them to explain matters in a free narrative using open‑ended prompts, and avoiding closed or leading questions. A recent survey of police officers suggested that interviewers did not ask open ended questions as often as they should, and had highlighted some concerns about the way in which JIIs were sometimes conducted.

[8] Turning to the specific JIIs in this case, the professor highlighted a number of apparent deficiencies in the process. She stated

"It is impossible for me to establish what, if anything of a concerning nature may have occurred from the joint interview. The child came across one (sic) that was able to answer the questions put to her when they were not too complex."

Her conclusion regarding the JIIs was that

"I appreciate that we are not looking at a criminal case here but a decision to be reached about contact with the child based on a balance of probabilities. Therefore the court may decide not to rely on the JII but instead on information the child has related to other parties outside this context together with any other indicators".

[9] Information which the child related to other parties outside this context of course included the information given by her to Ms Foy. As is common practice in such situations, the interviews which Ms Foy conducted were not formally recorded in a question and answer format. Professor Memon therefore pointed out that she was unable to assess the quality of the questioning that Miss Foy engaged in. Instead, Professor Memon concentrated on identifying those issues which can cause difficulties in the interviewing of young children and the factors which one has to guard against. Again, the full details can be seen from her report, but in brief, and paraphrasing for that purpose, they included these: questions must be pitched at a level appropriate to the age and developmental stage of the child; young children may have difficulty in distinguishing between an event occurring in one location and a similar event occurring in another location; it is important to ask open questions, as Ms Foy said she did, but it is equally necessary to avoid the trap of "confirmation bias", where an interviewer, primed with information from other sources, forms a hypothesis and seeks information to fit that hypothesis; young children may be suggestible, and untrue comments may be made by them as a result of this suggestibility.

[10] The respondent's position was that perhaps the child had been confused, because the only time he had touched the child on the bottom was when he washed her after defecation. He had never touched her genitals. Otherwise he maintained that the allegations were maliciously fabricated by the minuter to prevent his exercising contact.

[11] After hearing the evidence, the sheriff made the following findings

"[22] The respondent put K to bed on occasions. He patted her stomach, hip and upper bottom on occasions.

[23] The Minuter first became aware of the foregoing in or about 23^rd May 2009 since which time the respondent has not had contact with K.

[24] When the Minuter first heard what K said she rang Ms G. Ms G came to the Minuter's house as soon as she could.

[25] K told Ms G something similar to what she had told the Minuter. K repeated this on the Sunday morning.

[26] On or about 26^th May the Minuter rang the Social Work Department and told them what K had said to her.

[27] K was interviewed on two separate occasions in June 2009 and did not repeat the statements she had made to the Minuter and her mother.

[28] In or about August 2009 the curatrix met K. K did repeat statements as to the respondent's conduct towards her to the curatrix.

[29] On occasions the respondent has touched K in the area of the vagina when K was in her bedroom".

[12] The sheriff did not make a specific finding as to what the child said to her mother, grandmother or the curator. However, it is clear from his note, where he records the tenor of their evidence and states that he found them to be credible and reliable, that he concluded that the child had said these things to the three witnesses, as described by them. It is implicit that by making finding‑in‑fact 29 he accepted this. The sheriff concluded that there was a need to protect the child from the risk of abuse and that it was no longer in the child's best interests for contact to be maintained.

[13] Against this decision the respondent has appealed. The grounds of appeal assert:

1. that the sheriff failed to weigh the evidence for or against the serious allegation which had been made;

2. that his findings were deficient, in particular that finding 22 relates to innocuous conduct, setting in train a course of events mentioned in findings 23-28 which would not permit the sheriff to draw the inference in finding 29;

3. that he failed to take advantage of the expert evidence; and

4. that his reasoning was deficient, specifically in that he failed to address the question of the reliability of the child, or the fact that the contact which was sought was limited to supervised contact at a contact centre.

Submissions

[14] Counsel for all parties presented the court with detailed written submissions. What follows is therefore a very limited summary of the submissions. The respondent had been refused legal aid, but, courtesy of the Faculty of Advocates' Free Legal Representation Unit, he was represented by Mrs Janys Scott QC. We record our thanks to Mrs Scott for the assistance which was thereby rendered to us.

Submissions for the respondent

[15] Counsel for the respondent encapsulated her submissions in four propositions:

(i) That in a case where it is alleged that a parent has sexually abused a child the court should have regard to the inherent probabilities when weighing the evidence and start with the assumption that most parents do not abuse their children.

(ii) That in considering the hearsay evidence of the child the sheriff should have considered the reliability of the statements said to have been made.

(iii) That in reaching his decision the sheriff failed to have regard to a number of relevant factors, all of which were specified.

(iv) That the sheriff failed to address the issue of proportionality of recalling the contact order.

[16] These propositions were supported by detailed argument under reference to the sheriff's findings and note. For present purposes, it is sufficient to record the broad propositions set out above: the nature of the arguments advanced in support of them will be apparent from the discussion section which follows.

[17] In the course of submissions reference was made to the following cases:

In re B 2009 1AC 11; B v Scottish Ministers 2010 SC 472; T v T 2001 SC 337; HMA v A 2005 SLT 975; Thomas v Thomas 1947 SC (HL) 45; Duncan v Wilson 1940 SC 221; Morrison v Kelly 1970 SC 65; Bryce v BRB 1995 SLT 1378; and White v White 2001 SC 689.

Submissions for Minuter

[18] On behalf of the minuter, counsel advanced the following propositions:

(i) That in civil causes there was a single standard of proof, although the evidence which proved to be sufficient might vary according to numerous factors.

(ii) There was no legal principle that the sheriff should "start with the assumption" that a child has not been abused.

(iii) The sheriff carefully considered the evidence led at proof and correctly conducted the assessment of that evidence.

(iv) There was a proper evidential basis for the sheriff's findings‑in‑fact.

(v) The status quo at the stage of proof was that no ongoing contact was taking place.

(vi) The sheriff correctly applied the statutory test for recalling the order for contact.

In addition to the cases already referred to, reference was made to Wordie Property v Secretary of State for Scotland 1984 SLT 345.

Submissions for the curator

[19] For the curator the following propositions were advanced:

(i) The assessment of evidence involved regard for inherent probabilities as an exercise of common sense, but there was no requirement for the court to commence with the sort of presumption advanced on behalf of the respondent.

(ii) The sheriff having considered all the evidence before him, reached conclusions which were justified by that evidence.

(iii) The sheriff had regard to all relevant factors in reaching those conclusions

(iv) The sheriff concluded that a resumption of contact was not in the best interests of the child. There was no failure to address the proportionality of such a course, about which in any event no argument had been presented to the court.

Discussion

[20] B v Scottish Ministers was concerned with confirming that in Scotland there were only two standards of proof: proof beyond reasonable doubt and proof on balance of probabilities. In paragraph 42, delivering the opinion of the court, Lord Eassie said this:

"Where an allegation of criminal conduct is made in civil proceedings, the standard of proof is the balance of probabilities; but the nature of the allegation may be such as to call for evidence of quality and weight and for that evidence to be carefully examined and scrutinised in the course of the forensic process."

[21] In our view, that is saying no more than that in any case, whether the evidence tips the balance of probabilities will depend on the whole circumstances of the case, including the nature of the allegations and the quality and weight of the evidence relied upon. All relevant circumstances require to be taken into account. That case does not vouch the proposition which counsel sought to advance, that in a case such as the present the sheriff should start from an assumption that parents do not abuse their children. In her written submission, counsel asserted that in B v Scottish Ministers the court had approved a line of authority to this effect, including In re B. In fact, In re B is referred to simply to show that in England, despite prior doubts about the matter, it was also now accepted that there were only two standards of proof. In making an order regulating arrangements for contact, the sheriff required to bear in mind the terms of section 11(7B) of the Children (Scotland) Act 1995, under which the sheriff requires to have regard in particular to the need to protect the child from any abuse or risk of abuse and the effects of any such abuse. In White v White it was held that in making an order under part I of the 1995 Act, the court required to have regard to the welfare of the child as its paramount consideration, and will generally consider that contact with the absent parent was conducive to the welfare of children since this was a general principle to be deduced from the Act. However, the court went on to hold that the nature of the courts powers and obligations under section 11 of the 1995 Act was inconsistent with any question of onus arising. Whether the court was considering the matter ex proprio motu or on the application of a party "the court had simply to consider all the relevant material and decide what was conducive to the child's welfare." (Lord Rodger, para 71). In the same paragraph he went on to say:

"In carrying out that exercise the court should have regard to the general principle that it is conducive to a child's welfare to maintain personal relations and direct contact with his absent parent. But the decision will depend on the facts of the particular case and, if there is nothing in the relevant material on which the court, applying that general principle, could properly take the view that it would be in the interests of the child for the order to be granted, then the application must fail."

As Lord McCluskey put it (paragraph 10):

"On the matter of onus of proof, it is inconceivable that a court, charged with the duty in such a case of making a decision about the interests and welfare of a child and having heard the evidence of the parents and others, whether family friends, or relatives, or professionals such as teachers or psychologists, would make its judgment on the basis of the failure of one party or the other to discharge the onus of proof. To do so would be to abdicate the responsibility that the Act has laid upon the court to decide on the basis of the welfare and the interests of the child, and not upon technical considerations that have nothing directly to do with welfare or the interests of the child."

[22] It has repeatedly been asserted that in cases of this kind the question of onus will be of little practical importance where the evidence had been heard. In our view, it would be as absurd to start from any presumption that parents do not abuse their children as it would be to start from a presumption that they do so. The court must look at all the circumstances of the case, which, in a case where the matter arises, will include whether the court is satisfied that there has been inappropriate touching, and decide where the best interests of the child lies.

[23] On the question of the reliability of the child, K, counsel drew attention to para 26 of the sheriff's note where, having noted that the child is said to have made the relevant remarks to three adults, two of whom were very close to her, he said:

"There are two possibilities: either the adults are lying when they say that K said what she said; or K herself is lying. As to the former, I have already held that two adults (the mother and grandmother) were telling the truth when they gave evidence as to what K said to them. I cannot see that there is any room for misunderstanding or misconception".

It was submitted that in this passage of his note the sheriff had fallen into error, and that so far as any statements made by the child were concerned there was certainly room for misconception and error, and the sheriff should specifically have addressed the extent to which the child could be regarded as reliable. We do not accept that submission. It is important to note what the sheriff went on to say, before he went on to consider the evidence of Ms Foy, namely that:

"What took place is the making of a statement by K to three adults and it is their hearsay evidence which I am assessing, as I would any other hearsay evidence."

[24] In T v T it was held that the statutory provisions regulating the admission of hearsay evidence in civil proceedings did not import any test of competency. The ultimate question for the court will be whether the hearsay statement relied upon is capable of being relied upon, whether it is trustworthy. As Lord Rodger put it in para 38:

"If evidence of their statements is admitted, the judge or jury will again have to use their wisdom and common sense to decide whether the statements are trustworthy. The exercise is not au fond different. In carrying it out, in the case of young children in particular, the judge or jury will be able to draw not only on their own experience of listening to children in everyday life but also on any expert evidence which may be tendered in relation to the individual whose statement is in issue."

In a case such as this, we do not consider that it is particularly helpful to try to confine this matter to one of the credibility and reliability of the maker of the hearsay statement, especially when that person is a young child. There will be many factors which are relevant to the question of whether the hearsay can be relied upon: are the people to whom the statements are said to have been made credible and reliable? Did they have some particular axe to grind, or animus towards the subject of the statement? Can the same be said of the actual maker of the statement? What were the circumstances in which the statements were made? Were they elicited in response to leading questions or was there an element of spontaneity? Did the people to whom the statements were made simply accept them at face value, or did they consider whether there might have been an alternative and innocent explanation for the statements? These are all factors which may have a bearing on the overall question of the weight which the fact‑finder may satisfactorily feel able to place on the hearsay statement.

[25] In this case, in a passage before that criticised by counsel, the sheriff (para 17) had addressed the evidence given by the minuter and Ms G and concluded that they were credible and reliable witnesses, a conclusion which is not challenged. He considered that they were telling the truth and doing their best to recount events as they recalled them. He stated "Given the nature of their evidence, it is difficult to account for their evidence upon the basis that they have recalled it inaccurately". The nature of that evidence included the fact that both of them had sought to find an alternative and innocent explanation for what had been said, but had ultimately been unsuccessful in doing so. It also included the graphic illustration referred to by the minuter when she was bathing the child on the 26 May.

[26] The sheriff also considered the timing of the alleged statement. He took into account the volatile relationship between the parents, and the possible effect of the finding by the minuter of affectionate messages from the respondent to another woman. The statements were nevertheless made at a time when the respondent had been enjoying contact throughout and there had been no suggestion that the contact should be stopped. The allegations did not therefore come at any particularly fractious episode in the relationship between the parties. The minuter had contacted her mother immediately on the first statement being made to her, and had thereafter contacted the social work department. The sheriff then considered the evidence of Ms Foy and the making of statements to her. We will deal elsewhere with the sheriff's approach to the evidence of Ms Foy in relation to the expert evidence, but for present purposes it is sufficient to note that the sheriff was satisfied that Ms Foy was a credible and reliable witness.

[27] Next, he reflected on the fact that it had never been suggested that the child herself had actually been lying. These are all factors which were relevant in the sheriff's assessment of whether the hearsay statement could be considered trustworthy and we do not consider that he carried out his task with anything other than diligence and care.

[28] In relation to the second ground of appeal, it was argued that finding 22, which is innocuous, leads to the events in findings 23 to 28, with finding 29 as the conclusion. It was said that this does not provide a logical or coherent account, and further, that there is no finding that would enable an inference to be drawn in terms of finding 29. We have already commented on the fact that the sheriff did not make a finding in relation to the statement made by K to her mother on about 23 May. When one reads the findings in conjunction with the note, it is apparent that there should have been a finding between finding 22 and findings 23 and 24, recording that the child had made a statement to her mother. The findings thereafter effectively record the nature of the investigations which followed on the making of that statement, and the repetition of them, and it is the sheriff's conclusion on those investigations, expressed in his note, which leads him to make finding 29. It is entirely appropriate that he should have restricted his finding 22 to the innocuous, undisputed behaviour which was neither here nor there, and should only make a finding in relation to the abusive behaviour after recording findings in relation to the evidence which led him to that conclusion. Finding 29 is not an inference drawn from finding 22, it is a separate finding-in-fact in its own right. As to the argument that there was no material from which the sheriff could reach the conclusion that the touching had happened more than once, we consider this submission entirely without merit. The whole tenor of the statements made by the child was that this was something which happened on a habitual basis, not a one off event.

[29] The argument in support of counsel's third proposition was based on the fact that there were no findings in relation to a number of relevant matters, such as the fact that the respondent cleans the child after toileting according to his own religious customs; that she had a happy relationship with her father; that the initial account given by the mother was "remarkably tentative"; and that the initial reaction of the mother and grandmother were that the remarks might be associated with an innocent explanation. It is true that the sheriff did not make specific findings in relation to these matters but that is not to say that he did not take these, and the other factors relied upon, into account. On the contrary, examination of his detailed note shows that he did in fact do so. For example, reference to the cultural background is made in para 11 of the note, to the mother and grandmother seeking an innocent explanation in paras 11and 17 and to the child's otherwise good relationship with her father in para 7. Most of the other factors on which counsel relied were simply points relating to the evaluation of the evidence, which was a matter for the sheriff. There are two which should be singled out: these are the argument that the sheriff's description of the JIIs in finding 27 was incomplete and inadequate, since the JIIs contained a denial, not simply a failure to repeat the statements; and that the sheriff failed to take account of the child's age and stage of development.

[30] As to the JIIs, the relevant parts are recorded above. It is necessary to look at the sheriff's finding in this regard in the context of the evidence which Professor Memon gave. Her evidence, summarised in the sheriff's note, was that "She accepted that there were "errors" and "problems" with the interview. She also accepted that the failure by a child to give evidence as to wrongdoing could occur for a number of reasons and not just that something did not happen. She described the outcome of the JIIs as "inconclusive"".

[31] We have already referred to her conclusion relating to the JIIs, which she confirmed in evidence, saying (22/09/11 p66E) "It might be better for the court not to place too much reliance on the JIIs". The submission made to the sheriff on behalf of the respondent regarding the JIIs was merely that it was "clear from them that the child did not say anything suggesting misconduct on the part of the respondent". In this context the sheriff tells us in his note (para 26) "All I can safely conclude is that nothing was said by K, not that nothing happened". In our view, on the evidence before him and the submissions advanced, he was entitled to take this view and make the finding which he did.

[32] The remaining point about the child's age and stage of development is tied in with the general argument that the sheriff failed to take proper account of the expert evidence. As can be seen from the summary of Professor Memon's report given above, which was reflected in her evidence, apart from the JIIs which have now been dealt with, she was only able to speak in generalities. She had never seen or spoken to K herself and was unable to comment on the child's development or level of understanding. She noted that the child dealt generally well with the questioning in the JIIs, and in evidence cited one example of a complex question relating to differentiation between different locations which the child was able to answer fully (her evidence 22/09/11 p43B). The areas to guard against which were spoken to by Professor Memon, such as suggestibility, coaching and confirmatory bias, were all explored in detail with Ms Foy in the course of examination in chief. They were barely touched upon in cross‑examination which was mostly directed to suggesting actual bias on her part against the respondent. Ms Foy explained that she was aware of the risk of parental fabrication or coaching, had prior experience of false allegations and knew she required to approach the matter with an open mind, and to keep the conversation at an age appropriate level. She had in excess of 20 years experience interviewing children as an officer of the court, many of them as young as two or three. She explored the possibility of an innocent explanation based on toileting practice. The sheriff concluded that Ms Foy was conscious of the dangers of children being tutored by angry parents and of the need to keep an open mind. He was satisfied that she had conducted her duties diligently, without bias, and was a credible and reliable witness. It is clear that he was able to make an assessment of whether Ms Foy had been able to carry out her duties guarding against the sort of concerns expressed by Professor Memon and that he was satisfied that she had done so. We are unable to detect any flaw in the sheriff's approach to the expert evidence in this case.

[33] The final argument for the respondent was that the decision that contact should not resume was not a proportionate decision. The court should start from the assumption that it is in the best interests of a child to maintain contact with an absent parent. The evidence suggested that the child in this case had a good relationship with her father and missed him. In the present case there was the possibility that contact could take place under supervision at a contact centre. The sheriff had failed to consider this option which would have been a proportionate response.

[34] In considering whether a contact order should be in place the sheriff required to have as his paramount consideration the welfare of the child in question. There was evidence that the child was settled and happy in the status quo and there was no evidence that the lack of contact was presenting her with any particular difficulty, although the sheriff recognised that the child had previously had a good relationship with her father. He noted that contact had proceeded satisfactorily until May 2009. The sheriff took these factors into account. However, the sheriff was also required to consider the matters referred to in section 11(7B) of the 1995 Act. Having done so, he concluded that the respondent had touched the child in a sexually inappropriate way on more than one occasion. The suggestion, and it was no more than that, that contact might take place at a contact centre came from a witness with very limited involvement in the case. There was evidence from Ms Foy that such contact would not necessarily protect the child from harm, and might indeed result in emotional harm. In these circumstances the sheriff was perfectly entitled to conclude that the child's welfare would not be served by resumption of contact.

[35] In the circumstances we will refuse the appeal and adhere to the interlocutor of the sheriff.