Doncaster Metropolitan Borough Council v Haigh [2012] EWCC 3 (Fam) (22 August 2011)

His Honour Judge Robertshaw

The Issues

1. X was born on the 13 November 2003. She has been the subject of court proceedings since April 2005. One of the findings that I am asked to make at this fact finding hearing is that X “has suffered, or is at risk of suffering, significant harm as the result of the ongoing negative dynamics in the relationship between her parents and the resulting extensive court proceedings”. When one adds to the simple fact of the length of the proceedings that they have involved repeated allegations of sexual abuse and resulting medical examinations of X and questioning of her by professionals I would have thought that those circumstances alone establish, at the very least, risk of significant harm- res ipsa loquitur.

2. The principal factual issue which falls to be determined at this hearing is whether X’s father has sexually abused her. The other issues defined for resolution arise only in the event of a finding that the allegation of sexual abuse is false. In that eventuality I am asked to determine whether this arises from ‘coaching’ by mother or whether mother has acted in good faith throughout and in the interests of X in reporting what she has said at various times. If she was not acting in good faith, then is that state of affairs one that has caused, or was likely to have caused, X significant emotional harm? Again, I would have thought that the answer to that question was self evident, certainly so far as risk of harm is concerned. The way in which the issues for resolution have been framed do not, as such, allow of a finding that the allegations of abuse, prior to the 2009 disclosures, were not allegations made by X at all and that the report of them by mother is false. Plainly, however, that issue arises.

3. These are complex issues. It is worth a reminder that cross-allegations would seem to be involved with a shifting burden of proof. It is for a party alleging that sexual abuse occurred to prove the allegation to the civil standard of probability. It is for the father to prove, of course, to the same standard, that the mother is culpably responsible for false allegations being raised if indeed they be false. It is possible to conceive of an outcome whereby there is a finding that sexual abuse by father is not proved but nor is culpability on the part of mother for false allegations of abuse being made. In other words, sufficient doubt remains as to how the allegations came to be made that it is neither possible to say that she is culpable nor that she was acting in good faith. So far as the future is concerned that would not be a helpful outcome. But a sensible analysis of the issues suggests that it is a possible one.

4. In his final submissions, on behalf of the mother, counsel on behalf of mother once more seeks to distance his client from allegations that she has been making consistently now for three years, except perhaps when it has suited her purpose not to make them. He tells me that she does not seek a finding that her father has sexually abused X. I consider that position to be unreal and disingenuous. It reflects, not for the first time, that mother adopts the position which at any one time she considers to be the most tactically advantageous. It is not actually consistent with mother’s failure in the course of giving her evidence to answer clearly the simple question: do you now believe that X has been sexually abused? If she does believe the allegations then her failure to seek to pursue them raises obvious issues of failure to protect. At all events the Court has spent eight days investigating allegations of sexual abuse and will not be deflected from making a finding, on the evidence, of whether there has, or has not, been abuse. Not to do so would make a mockery of this hearing as well as do nothing at all to arrive at that clarity which is vital to safeguarding X’s welfare. It would lead, I am in little doubt, to future allegations of abuse. Of course, no finding that there has been abuse can be made in the absence of proof, on a balance of probabilities, that abuse has happened. If it is shown to have occurred, however, according to that standard, a finding to that effect will be made even in the absence of a party putting forward a positive case.

5. Allegations of child sexual abuse are never easy to determine. When raised in the context of contested issues relating to contact they give rise to particular problems. A parent hostile to the idea of contact knows that one of the most effective ways of disrupting it is to allege sexual abuse. The mere fact of making the allegation will cause contact to cease forthwith, certainly unsupervised contact. Unless the allegation is susceptible of a finding that it is false beyond a peradventure (and not too many are), as opposed to a finding that it is not shown to be more probable than not, there has to exist a lurking doubt that the child, whose welfare and safeguarding is the paramount consideration, maybe at risk. The notion that if it is more probable that it happened then it happened and if it is not it did not happen has at least a degree of artificiality about it. Besides being mindful of possible motives for false allegations of abuse being raised it is necessary for the judge to accept that abuse does occur and the mere fact that an allegation comes to be made in the context of a contact dispute makes it more, not less, important for the allegation to be approached with an open mind.

6. In the original ‘schedule of findings/issues to be determined by the Court’ and the findings sought so far as sexual abuse was concerned was limited to the period March to November 2009. I understand why. In my view, however, this represented an unreal and artificial approach to the issues to which the evidence gives rise. To confine the evidence to what occurred during that restricted period of time would, almost inevitably, quite apart from anything else result in only one possible finding. It is necessary to revisit, I’m afraid, the past. In proceedings where the future welfare of a young child is involved there can be no question of issue estoppel or, to adopt the Latin once more – res judicata. Planning for X’s future welfare needs to be based upon as correct a view as possible of what has happened in the past. Whilst there have been findings in the past, as I shall indicate, those have not been based on anything like a full investigation of the allegations. In any event, the total history is obviously relevant to any determination concerning what may lie behind false allegations.

Significant dates

7. X’s parents were married on the 19 May 2003. They separated and divorced in 2005. X’s main residence has always been with her mother. Without rehearsing the total history of what followed by way of court proceedings and allegations of abuse (a tedious, unprofitable and very lengthy exercise) the significant events, up to the beginning of 2009, appear to be as follows:

· 11 April 2006 – father applies for contact.

· 22 August – overnight contact ordered.

· 8 December 2006 – contact order made with penal notice attached, at court mother physically attacks the father for which she subsequently receives a police caution.

· December 2006 – mother tells the children and family reporter that X has said ‘Daddy says I’ve got a little tail’.

· 20 December 2006 – mother applies to suspend contact alleging disclosures by X of sexual abuse (Daddy rubbing between her legs with his fingers) - this allegation was first made, apparently, to social services on the 8 December shortly after the proceedings at court that day – intimate medical examination of X takes place, nothing of concern or significance noted.

· 20 – 27 December 2006 – no contact with father.

· 27 December 2006 – mother takes X to GP repeating complaint of vulval soreness – on examination nothing of concern noted.

· 2 January 2007 – father applies for residence.

· 8 January 2007 – mother returns to GP with complaint that X may have sustained injury to her bottom in the course of contact with father – further examination undertaken – nothing of concern noted.

· 16 March 2007 – decision made not to investigate further the allegations of abuse.

· 23 March 2007 – order for supervised contact.

· 10 April 2007 – mother tells children and family reporter that X has imitated father behaving in a sexual manner and that he “did things with his tail on her bottom”.

· 6 June 2007 – order for unsupervised contact.

· 8 July 2007 – mother applies for contact to be supervised alleging that X has made more disclosures of sexual abuse (daddy kisses her with his tongue out/states she becomes upset when talking about secrets).

· 23 July 2007 – social workers s.37 addendum report based on a lengthy session with X on ‘wishes and feelings’ – nothing of concern disclosed.

· 17 August 2007 – penal notice attached to the contact order.

· 3 October 2007 – fact finding hearing listed which mother fails to attend; finding by court that no evidence the father has sexually abused X.

· 14 November 2007 – X told her class teacher that she is not allowed to see her daddy as her mummy says that he does naughty things to her [Bundle III Private Law F10].

· 15 November 2007 – mother accepts breaching contact order – 15 consecutive sessions of contact missed.

· 2 – 3 December 2007 – mother makes further allegation to the police, social services and the Guardian of sexual abuse occurring on the 2 December – what is alleged is set out in some detail in mother’s police statement [Bundle III Private Law E9 – 11] – mother stops contact.

· 14 December 2007 mother sentenced to suspended term of imprisonment for breaching contact order.

· 8 April 2008 – further disclosures by mother to social services of possible sexual abuse (father exposing himself to X and putting cream on her bottom).

· 20 May 2008 – allegations of sexual abuse made by mother to X’s Guardian (X behaving in a sexually explicit manner in the bath and states that when she was naked in the garden father had squirted water on her.

· 11 July 2008 – court hearing at which mother purported to accept that father had not sexually abused X and a finding that the allegations of abuse had resulted in emotional harm to X.

· 4 November 2008 – court orders shared resident.

[I am conscious that in undertaking the above exercise, which has involved culling information from a variety of sources, I may possibly have fallen into error as to certain dates. If I have fallen into major error I am happy to be corrected and to correct this judgment accordingly].

Disclosures and court proceedings 2009

8. On the 11 February 2009 a prohibited steps order was made on father’s application preventing mother relocating. Mother responded to this on the 6 March 2009 with an application to vary the contact order to allow her to leave the area. Mother alleges that on the 7 March 2009 X said “when you touch a willy it gets bigger” and later “daddy showed me”. A couple of days later X allegedly told her mother that she had touched it and it was sticky like her toy dinosaur.

9. The next date of significance was the 4 June. On that day certain events occurred giving rise to further allegations against father of sexual abuse. The undisputed evidence of the head teacher at X’s school, is that on the 4 June X was engaged in a music lesson with the children sat in a circle playing percussion instruments. At some point X approached her teacher and complained that she had hit her ‘front bottom’ with the maraca which she had been playing and it was sore. She was not showing signs of serious distress and visual examination showed an area of minor redness consistent with what X was saying and what she was saying was consistent with the activity in which she had been engaged. It was apparently prompt complaint of something that had just happened. The obvious question arises as to why X should say that this incident had occurred if nothing at all had happened in the course of the music lesson. The incident was reported to mother. Within a short time thereafter mother was alleging that X had made disclosures that father had inserted a maraca or rattle into her ‘front bottom’. X had stayed at father’s house on the evening before the music lesson. The allegation was eventually repeated by X to the social worker on the 3 July and, on the same occasion, X stated that her father had come into her bedroom without any trousers or underpants on and told her to touch his “willy” which felt “squishy”.

10. Mother’s evidence was that when she picked X up from school on the 4 June she was showing manifestations of serious trauma which, together with complaints of acute discomfort in the genital area, continued throughout the evening. She asserts that on the 18 June X made complaints of what amounted to a sexual assault upon her by father with a rattle. On the 2 July she spoke by telephone to a social worker but indicated only that she believed X wanted to make a disclosure.

11. On the 29 July a video recorded interview of X by police officers specialising in the investigation of child sexual abuse took place. In that interview the allegation of abuse was repeated by X. As was to be expected her language was childish but appropriately so. She refers to having “a little lid what opens” and to “daddy putting a rattle under my bottom”. The incident occurred in her bedroom. She was undressed. Daddy made her lay on the bed and “split” her legs. It hurt, she said, “but I didn’t scream because I had to be brave”. When asked what part of her bottom she was referring to she said “my front bit” She was asked about what she had told the teacher at school and she said that she had lied but she did not know why she had lied. However, the explanation given to the teacher was one which she had initially repeated to her mother. The following interesting, and I find illuminating, exchange then followed which, to do it justice, does not need to be reproduced in full:

Q. What made you tell the truth in the end?

A. Mummy telling me off.

Q. What did mummy tell you off for?

A. From lying.

Q. How did mummy know that you were lying?

A. She was just guessing that I was lying. I don’t know how she knowed.

Q. What did mummy say to you when she told you off?

A. She said to tell the truth otherwise I’ll get [mother’s partner]. Then I told the truth the next day. And then I had a dream then I told a lie. That it took four hours to say it cos [mother’s partner] told me.

Q. [Mother’s partner] told you what?

A. That it took four hours to tell the dream because it was about the dream where daddy put the rattle under my bottom.

Q. Was your dream before or after it happened?

A. After.

She went on to say “I remember it today from telling (the social worker)” and when asked if she could actually remember it happening she replied “no”.

12. On the 1 September the local authority issued public law proceedings seeking a supervision order. Subsequently orders were made consolidating the various proceedings and directing this fact-finding hearing. The position of both the local authority and the Guardian at this hearing, as would be expected, is essentially one of neutrality. Something is plainly wrong and significant welfare issues arise so far as X’s present and future well-being is concerned. What is sought from this hearing, by both the local authority and the Guardian, is clarity and the finding of the court as to what has been going on since 2006. Only then will they be in a position to advise the court as to the orders appropriate for securing X’s future welfare. In addition, the local authority are asking for what is effectively a threshold finding of harm, or risk of harm, arising from X being either sexually abused by father or emotionally abused by mother.

13. On the 9 November the court made an order for supervised contact. On the 10 November it is alleged that X made more disclosures of abuse which, of course, had the effect that contact in accordance with that order did not take place. On the 16 November there was a second police interview. Asked what she had come to talk about X replied without hesitation:

“Every time when I saw him he used to get me to open my legs and he used to touch me in my private place. And where he done it was in his bedroom. And I used to sleep with him. And he got the rattle under my bottom. That’s why I don’t see him any more”

She went on to make an allegation of her father making her touch him though with a degree of confusion as to whether it was his bottom or private place that she was referring to. Eventually she said that it was his private part and that it happened just once. Him touching her, she said eventually, also happened just the once because on other occasions she said no. She made further reference to the incident with the rattle or maraca which she said was inside her bottom for ten minutes. How did she know it was ten minutes? “He told me … I put this rattle under your bottom for ten minutes and that’s it”. It had hurt “like having a baby”. Mummy had told her what it was like having a baby. In the course of the interview she referred to the Guardian as “the guy who helps us but he’s actually helping daddy … he’s not helping us because he’s trying to get me to see my dad”.

My findings – 2009 allegations

14. Because it is only in respect of the 2009 allegations that I have heard the voice of the child it is to the credibility of those allegations that I turn first. A child making allegations of abuse is entitled to be heard and listened to with respect. In my consideration of the evidence of X, of course, I bear in mind that I have not heard it tested by cross-examination and, in effect, I direct myself in exactly the same way in which I have often directed jurors in the Crown Court considering similar allegations, namely that you cannot judge a young child by the same standards of logic and consistency that you might apply to an adult; simply because children do not have the same knowledge and experience of life as adults and are necessarily therefore less sophisticated. This lack of sophistication is particularly apparent when a child is speaking of matters in respect of which the understanding of the child is imperfect.

15. What I found to be striking about X’s evidence, particularly in the first interview, was that ‘daddy put the rattle under my bottom’ was not merely repeated time and again to an extent whereby it had almost the character of a mantra but that the repetition was utterly devoid of any emotional content whatsoever. Not one word was spoken, in either the first or the second police interview, to suggest that what she was describing had had any emotional impact upon her in any way at all. She appeared to be detached emotionally from what she was describing. Now, clearly, I must be mindful of the dangers involved in engaging in psychological assessment which I am not qualified to do and on this issue I do not have the benefit of any expert input. However, it is legitimate comment, I believe, that it is easy for a child or adult to speak and repeat a false allegation but difficult to fabricate the emotional response that might be expected to accompany the allegation being made. I comment only that this feature of the allegations I find to be singular. Fortunately, there other circumstances which assist in determining where the truth lies.

16. The mere fact that X has given inconsistent accounts of how she came to be hurt by the rattle/maraca may not amount to too much but the fact that her first complaint was altogether consistent with the activity in which she had just been engaged and that a mark (which is how it is properly described) was noted consistent with that complaint strongly suggest that this is what happened. Against the historical background mother’s scepticism about the explanation given to her by the school was altogether predictable. That scepticism was noted by the head teacher, a careful and impressive witness. At sports day, on the 3 July, she supervised X’s contact with her father and noted only that her reaction to him was normal and affectionate. That was in apparently flat contradiction of what mother is claiming to have been symptoms of serious emotional disturbance when she picked X up from school on the 4 June. I reject mother’s extremely graphic account of the trauma which she claims to have witnessed in X on that day. It is a picture wholly inconsistent with the child’s presentation at school when she made her complaint or with her reaction to father at sports day. Were I to be wrong in this finding it could only be, in my judgment, because X was acting out a presentation which she had come to believe was expected of her when questioned by her mother concerning the causation of injury.

17. The social worker gave evidence of what she considered to be concerning aspects of X’s conduct when she observed her contact with her father. I accept that what she told me was her perception and might well have been a justified perception but having regard to the totality of the evidence I do not consider it to be a true reflection of X’s feelings towards her father. It is, I find, a real possibility that X was presenting in the presence of her father differently depending on whether the observer was or was not someone to whom she had made disclosures.

18. The head teacher’s evidence was that at the time of her discussions with mother she was expressing frustration that her complaints of abuse by father were not being treated seriously. She was told, on the 2 July, that this was because of the absence of any complaint to a third party. The very next day there is the first ever disclosure to an independent third party, the social worker, and a couple of weeks after that to the police. I am satisfied, and I find, that at some point, between the 4 June and the disclosure to the social worker, X was indeed ‘coached’ by mother to make the allegation that she did. Earlier in this judgment I recited in full an exchange in the course of that first police interview. Upon that exchange I rely in part in the finding that I make. It is an exchange which I find to be insightful in revealing just what had been going on to result in this false allegation of abuse.

19. Now, undoubtedly, X made disclosure to the social worker on the 3 July of the rattle allegation and ‘daddy making her touch his willy’. She appears to have described the rattle incident consistently with the way in which she described it in the police interview a couple of weeks later. There had been two earlier sessions between the social worker and X of which no disclosure had been made. That was because the social worker, as a conscientious professional, was alert to avoid unduly leading X into making any allegation/disclosure. Some criticism has been made of the questions asked by the social worker. Whether those criticisms are justified or not it is not questioning by the social worker that led to, what I find to be, a false allegation of abuse being made but other circumstances. The question that needs to be addressed now is how a situation has arisen whereby X was now making allegations of sexual abuse to the independent third parties.

20. Whilst I am satisfied that that the allegations of abuse originated initially in the mind of mother, not X, equally I am satisfied that by this time X was herself making disclosures, responding, I have no doubt, to cues and signals from both mother and the mother’s partner, mother’s on off (as has been described) partner, that the key to instant approval was to say that daddy had done naughty things. Neither mother nor the mother’s partner fought shy of suggesting to X what those naughty things might be. I do not accept the submission of counsel for the mother and I think it comes down to this, that the mother’s [partner bears the lions share of the responsibility for giving inappropriate cues to X which mother, understandably in the interests of her child, acted upon – indeed, it is said, she could do no other. That was not what happened. Here were two individuals each feeding upon suspicions of the other, those suspicions emanating from what were, in their origins, mother’s false allegations of abuse.

21. I find insightful the comment in the second interview concerning the Guardian. At the very least it indicates, in my judgment, that in this mother we have someone who is not above speaking to her child about matters that were not properly to be discussed with a child the subject of court proceedings and which a responsible parent would not have discussed. I reject mother’s contention that what X was saying represented X’s own, untutored, perception of the Children’s Guardian’s role.

22. So far as the second interview was concerned, whilst X’s presentation was undoubtedly different to that in the first interview, in that she was quiet, withdrawn and fidgety, once more she recited her allegations without any show of emotion. My findings in respect of these allegations are no different to those made in respect of the allegation contained in the first interview. I would add only that in the references to the pain of child birth and the odd reference to “ten minutes” I detected likely adult influence and undoubted adult influence in her statement “mummy says daddy should be going in prison … cause he’s done all them nasty things to me …”

My findings – the pre 2009 allegations

23. Logically, in the light of my findings above it will come of no surprise, indeed it is a virtually inevitable finding notwithstanding that every allegation does need to be separately considered, that no such abuse occurred. As a witness I found mother unconvincing and at times, I have to say, evasive. Repeatedly I had to intervene and invite counsel to ask a question again, quite simply because the answer given was not an answer to the question asked. In the course of her evidence she was asked repeatedly whether she now believes that father had sexually abused X. I confess that I remain altogether unclear as to whether does or does not. Her change of position, if that is what it is, since the two court hearings to which I have made reference in the chronology, does not support her credibility although it by no means has to lead to an inevitable finding against her.

24. I am satisfied that when, at the court hearing on 11 July 2008, she told the court that she accepted that father had not sexually abused X that was either because she had absolutely no reason to believe that he had abused her or if, as I think is more likely, she was by this time deluding herself and had come to believe the allegations, it was said for purely tactical reasons. Neither view of her position serves to enhance her credibility.

25. A more interesting question is how these allegations come to be made at all. I have already suggested that a time came, possibly sooner rather than later, when mother may well have been deluding herself. Equally I am satisfied that when allegations first came to be made that they originated from mother, not X, that they were false allegations and, obviously, that mother knew them to be false. These were not allegations that X suddenly, and for no discernable reason, chose to make.

26. I discern from the chronology a close correlation between the timing of certain of the allegations and the course of the ongoing proceedings. I am satisfied that the mother has used these allegations of abuse manipulatively to support her cause and her irrational hostility to contact. That hostility is long-standing and is, I believe, the key to understanding the allegations of abuse. Clear evidence of it is to be found in the mediation report of the 11 April 2006 [Bundle III Private Law F-40] where her position is summarised as “unwilling to allow father to have contact with X as she was not at all sure that this was of any benefit to X”. When father issued his contact application she suggested that if contact was to take place it should be supervised by her. Neither position was rational, justified or tenable. She has continued up to a few weeks ago to obstruct contact ordered by the court by allegations of abuse. Yet a further order for (unsupervised) contact was made as recently as the 9 November. On the following day the further disclosures leading to the second police interview are said to have been made. The pattern established years earlier continues.

27. What was said by the head teacher to mother concerning the absence of disclosure to a third party is not, of course, altogether accurate albeit that the head teacher was not to know that. The position more accurately stated is that before the 3 July 2009 there was no disclosure by X to anyone outside the family. The best evidence as to when the allegations of sexual abuse became those of X herself comes, in my judgment, from the evidence of the mother’s partner. In evaluating what he had to tell me I bear in mind that he is not truly an independent witness and that he is seriously antagonistic towards father. On one occasion he behaved in a discreditable manner towards him. Nonetheless, I am inclined to accept the substance of his evidence. He told me of an incident in April 2007 when he took X to the swimming baths and of how, whilst in the changing area, X caught sight of his penis. This was accidental and innocent as was the remark made by X “my daddy’s got one of those”. His evidence continued – “in order to deflate the situation I said ‘no he hasn’t’” There was no situation to be deflated. But he clearly treated it as one and, if it be the case that X went on to make an allegation to him and later to mother of actions by father which they interpreted as father masturbating against her bottom then this was because a ‘situation’ having been identified she was questioned inappropriately.

28. Of course, once X was saying things capable of being interpreted as sexual abuse, indeed eventually capable of no other explanation, mother believed that sexual abuse had happened. What she did not recognise was that this was a state of affairs that she herself, in her irrational antagonism towards the idea of her daughter continuing to have a relationship with her father, had brought about. I am satisfied that both mother and the mother’s partner were excessively alert to invest innocent words or actions of X with a specious significance. Situations capable of more than one interpretation had the very worst interpretation placed upon them. I am satisfied that X was excessively and inappropriately questioned about possible abuse with unmistakable signals that to disclose abuse would be something that would please mummy. Young children are susceptible to suggestion and the stronger the suggestion the more susceptible they become. That, of course, is why professionals social workers and police officers, are intensively trained in best practice for arriving at the truth in these situations.

29. Apart from the swimming pool incident the mother’s partner also gave evidence of seeing X playing with herself in the bath, as to which I comment only that what he witnessed was something not falling outside the bounds of possible normal behaviour. He also told the court of an occasion when he questioned X about a remark that she had just made to her mother – “a tail [or willy] gets bigger when you touch it”. In his own account of this exchange he approached it with a preconceived perception of what lay behind the remark and when X said that somebody had told her at school she was accused of ‘fibbing’ X became upset as any child would, but she knew what was expected of her and out came the statement “daddy told me”. For her perceived truthfulness she was commended. As to this incident I accept father’s evidence that on an occasion at about this time X was upset and said that mummy had tried to make her say that daddy had made her touch his willy. I am not in doubt that X did say this and was describing something that had happened. Significantly, it seems to me, father reported what had been said by X to the Guardian shortly after it was said. Unless X had said this, or something very like it, to the father he would not have possessed the knowledge to report it to the Guardian. If this particular allegation of abuse were true, or had any substance to it all, X would not, I believe, have said what she did say to her father. She would have said nothing. What she did say speaks eloquently as to where the truth is to be found.

30. Another family member to whom an apparent disclosure of abuse was made was mother’s sister. Actually, she might properly be described as an independent witness. She and mother are in conflict with each other in some way arising from the disclosure reported by the mother’s sister to the police in her statement dated 30 August 2007 [Bundle III Private Law E3]. Why mother should have behaved towards her sister in the way asserted by her I am altogether unclear about. After all, she was apparently providing support for mother’s cause. However, I have little doubt that mother has behaved towards her sister in the threatening and abusive way described. Incidentally and interestingly, since the fallout between the two sisters it appears that X has been alienated from her aunt, something which aunt plainly found stressing.

31. I do not doubt that the mother’s sister was an honest witness doing her best to tell the truth. However, there were many features of her evidence to which I was, and remain, puzzled. She was plainly not merely a reluctant witness but one aggrieved at being asked to speak to X at all and felt that she was being subjected to unfair pressure by her sister and mother at a time when she was emotionally vulnerable. That I understand but not, I’m afraid, the extent to which this dominated her testimony in the witness box almost to the exclusion of the subject matter of her evidence, namely what she was actually told by X.

32. The mother’s sister told me of an innocent comment made by X on a day in early August 2007 – “daddy’s got a tail”. It was innocent because it was made in a context that made sense. She was asked by mother to speak to X who went on to say various things. Many of them simply do not give rise to suspicion of abuse. Others undoubtedly do; in particular, her swinging daddy’s penis from side to side and daddy swinging his penis against her bottom. However, X was saying that she loved her daddy and she presented as bubbly, giggling and laughing. At one point in her evidence the mother’s sister on being asked what she felt about what she was being told, replied “OK I didn’t feel there was anything sinister”. When that answer was explored further she accepted, as I understood it, that possibly much of what she was reporting might well be the product of assumption on her part. She said – “I was not sure at the time that X was describing to me sex abuse”. [italics mine] Later she said – “I wasn’t convinced that what I was being told had happened”.

33. I did not find the sister at all an easy witness to assess. Aspects of her evidence left me with a suspicion that whilst I was being told the truth I may not be being told the whole truth. Having anxiously weighed all that she said I consider that it proves only tenuous support for the proposition that X was making allegations of sexual abuse. If she was making such allegations it was not because they were true but because of the pressure being put upon her by this time to say the things that she was saying.

34. In coming to the conclusions that I have about mother I have considered the psychological assessments to be found in the private law bundles. I bear in mind that the psychologists have not been available at this hearing for cross-examination although cross-examination would not, realistically, have resulted in assessments made in the past being altered or modified today. I have used those assessments not as primary evidence of credibility or to answer the question: Do I believe the mother? But, rather, to see whether they confirm, or otherwise, my provisional views about her evidence. The assessments do nothing to cause me to doubt those provisional views.

35. The focus of my consideration of the evidence thus far has been the evidence of mother. That is inevitable. The case that father has sexually abused X is (or, perhaps, more accurately stated, was originally) her case. So far as father is concerned I found him to be a truthful witness. I am satisfied that he has neither sexually abused X nor behaved in a sexually inappropriate way towards her. I accept his evidence that on the Friday following the music lesson X told him that she had hit her front bottom with a rattle at school, that her demeanour when she did so was nonchalant and that she did not even, as father puts it, take her eyes off the television. That perception of X’s demeanour, when she spoke about what had happened at school, was supported by X’s paternal grandmother.

Emotional harm

36. Responsibility for a situation whereby a child comes to make false allegations of sexual abuse against her father is undoubtedly emotionally abusive conduct. It gives rise, as has happened here, to repeated and potentially distressing intrusions by professionals into the life of the child. The risk of the emotional harm to the child is obvious. I would normally be slow to make a finding of actual harm without something such as a psychological assessment but I have formed the view that in this case there is before the court clear and cogent evidence of such harm. It comes from the evidence of the head teacher. She described X at all times prior to the second police interview in November 2009, as “lively, socialable and pleasant”. That indeed was how she presented to me in the course of the first interview. The head teacher was aware of a very different little girl after the second interview. She was by now anxious, clingy and tearful. Earlier in this judgment I made reference to my own perception of the different presentations by X in the two interviews and this would seem to be consistent with the evidence of the head teacher. On that evidence I find actual and significant emotional harm. I do not purport to be able to interpret the significance of dreams and comment only that I found slightly disturbing X’s reference in her first interview to her dream.

37. As well as X’s presentation at school, a child making, and more importantly believing, a false allegation of abusive conduct by a parent is an emotionally abused and damaged child. A child no longer enjoying a full relationship with both their parents is a potentially damaged child.

The future

38. Those now charged with the task of advising the court as to the orders necessary to promote X’s future welfare bear a burden more onerous than I have had to discharge at this hearing. The weapon of last resort, changing X’s residence, will obviously need to be considered and a balance struck between the risks involved in that course against the mother continuing to frustrate and impede contact in a way that will inevitably be emotionally damaging to X. Frustration at her past deplorable conduct must not be allowed to obscure the fact that the issue is welfare and that there are undoubted risks in deploying the weapon of last resort.

39. Direct contact will now need to be reinstituted in some form. It will have to be regulated, not because of any risk posed by father but simply because of the time that has elapsed since it last took place and, for the time being at least, to safeguard him from further allegations of abuse. Time alone will tell whether the mother is now able to embrace the letter and spirit of the principle that contact with the non residential parent promotes the well being of the child of separated parents. Any indication that she is not must involve the case being returned to me on short notice so that whatever steps may be appropriate, however draconian, can be taken.

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	England and Wales County Court (Family)
You are here: BAILII >> Databases >> England and Wales County Court (Family) >> Doncaster Metropolitan Borough Council v Haigh [2012] EWCC 3 (Fam) (22 August 2011) URL: http://www.bailii.org/ew/cases/EWCC/Fam/2012/3.html Cite as: [2012] EWCC 3 (Fam)

England and Wales County Court (Family)