Neutral Citation Number.  EWHC 2164 (Fam)
Case No: BL13P00068
IN THE HIGH COURT OF JUSTICE
IN THE MATTER OF THE CHILDREN ACT 1989
AND IN THE MATTER OF: T (CHILDREN)
Manchester Civil and Family Justice Centre
1 Bridge Street
Date: Monday, 16th June 2014
THE HONOURABLE MR JUSTICE HOLMAN (sitting throughout in public)
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Re: T (Children)
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Transcribed from the Official Tape Recording by Apple Transcription Limited Suite 204, Kingfisher Business Centre, Burnley Road, Rawtenstall, Lancashire BB4 8ES Telephone: 0845 604 5642 – Fax: 01706 870838
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Solicitor for the Local Authority: MISS AMANDA CONNOR
Counsel for the Mother: MR ANDREW WASTALL
Counsel for the Father: MISS SAIQA CHAUDHRY
Solicitor for the Children: MISS TANYA VALENZUELA
Hearing dates: 11, 12, and 13th June 2014
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MR JUSTICE HOLMAN
I have heard this whole hearing in public and now give this judgment in public. I direct that no report of this case in the media or elsewhere may name or identify any of the parents, nor any of the children, nor disclose the address at which any of the children live or the school which any child attends.
This case is a very sad one for reasons which will soon become apparent. The wife is aged 49. She is English. The husband is aged 41. He is Algerian and was born and brought up there. He began living in England in 2002. The parties later met and married. The husband’s sister and her husband live in Algeria. In December 2005 the sister gave birth to a child, R, who is now aged 8½. R has quadriplegic cerebral palsy, limited vision, and a range of other disabilities. In 2007 she travelled to England and, as a matter of fact and record, has lived with, and been cared for by, the wife and (until their separation) the husband ever since.
There are, or may be, disputes between the birth family of R and the husband and wife as to the exact circumstances and understandings whereby R began living in England, and disputes as to the longer term arrangements for R; but they are irrelevant to the scope of, and decisions in, this purely fact-finding judgment. Complex issues in relation to R may now have to be decided by another judge locally here in Manchester on another day. The fact is that for the last seven years, and great majority of her life, it is here that R has lived. There can be no conceivable doubt but that R is habitually resident in England and Wales, and was at the time of the commencement of these proceedings, and accordingly that this court has jurisdiction in relation to her. Whilst never forgetting that the husband and wife are not the birth parents of R, whose birth parents are in Algeria, I will for convenience in the remainder of this judgment call the husband the father, and the wife the mother.
Part of the sadness of this case is that the burdens and stress of caring for R together with the parties’ own children may well have contributed to the breakdown of the parties’ marriage and precipitated their separation. Another source of stress was a number of miscarriages; but happily the parents gave birth to two healthy children of their own, a daughter, K, who was born in April 2009 and is now aged 5¼, and a son, Z, who was born in June 2011 and will be 3 this week.
By autumn 2012 the marriage was in great difficulty. In November 2012 the father went on a prearranged visit to his family in Algeria. When he returned as planned three weeks later, he did not resume living at the matrimonial home, and effectively that date in late November 2012 marks the separation between the parents. Initially, the father returned regularly and frequently to the home to see the children and share in bath times and bed times. He was also able to take his own two natural children out on outings. As R is much less mobile and needs to be transported in her electric wheelchair, he was less able to take her out, but there is no reason to suppose that he cares for her any the less.
In February 2013 the mother abruptly terminated all contact between the father and the children, asserting that he had sexually abused them or otherwise harmed them, or at the very least exposed them to inappropriate sexual behaviour and/or language. None of the children have seen their father since then, apart from one brief and unplanned encounter in the community when the mother was present and the father could not have done anything harmful to any of the children. There was a police investigation but there have been no charges and it is inconceivable that there now could be.
These proceedings have been very and unjustifiably protracted, but at a hearing during May 2014 His Honour Judge Hamilton (who had not previously dealt with the case) took a grip and fixed the present fact-finding hearing. The sole purpose and focus of the present hearing and of this judgment is to decide whether or not certain allegations made, and still maintained, by the mother against the father are proved.
As she makes the allegations, the burden of proof is upon the mother. The standard of proof is the ordinary civil standard of a simple balance of probability. The allegations are now contained and summarised in a Scott schedule. This originally contained 19 allegations (after correcting an error in the numbering of the original allegations). During the course of the hearing the mother, who has been very well and wisely advised by her counsel, Mr Andrew Wastall, “withdrew” or decided not further to pursue allegations 1, 5, 7, 12, 13, 14, 16 and 17. She recognised either that the factual basis of those allegations was not supported by the evidence; or that there was nothing to link the alleged facts with any abusive or inappropriate behaviour by the father; or in some cases, that the facts alleged were of too little significance to impact upon future contact or any other aspect of the future upbringing of the children or their relationship with their father.
Allegations 2 to 4 do not relate to sexual behaviour or matters and they all precede the separation in November 2012. I will deal with them first. Allegation 2 as amended at the close of the evidence is that in October 2012 the father smacked K to discourage her from thumb-sucking, causing reddening. This allegation in that form is accepted, and indeed the father accepted and received a police caution in relation to the incident. The sting of the allegation, before it was amended, was that he had “repeatedly” smacked her and caused “bruising”. In its amended form the allegation is one of mild physical chastisement on a single occasion and in my view, as in the case of withdrawn allegation 1, it is irrelevant now to any future decisions in this case.
Allegation 3 is that in October 2012 the father tried to force R to stand up in the shower despite her being severely disabled and unable to do so. The father accepts that R is unable to stand up unaided. It emerged during the evidence generally that there was some difference between the father and the mother in their approach to R’s undoubted multiple disabilities, with the father considering more robustly than the mother that she should be helped and encouraged to do as much as possible for herself. On the mother’s oral evidence, what she observed on this occasion was that the father was trying to place or force R’s hands on the edge of the shower screen so as to support herself. In my view, this incident also is trivial and of no relevance to any future decision-making in this case. If there is to be a resumption of contact between the father and R, he would certainly benefit from some disability awareness training and skilled instruction in how to care for R and handle her current needs, the more so as she is now about 18 months older than when he last saw or cared for her.
Allegation 4 is that in November 2012 the father made threats to remove all three children from the mother’s care and take them to Algeria. The father has previously taken R once and the other children three or four times on holidays to Algeria. The sting implicit in allegation 4 is that he made threats to take them and not return them. Although the allegation as drafted in the Scott schedule refers to November 2012, the mother said in her oral evidence that such threats had in fact been repeated over at least a year and that November 2012 was merely the last time such a threat was made. I found the mother’s evidence vague and unconvincing on this point, and reject that the father ever made any serious threat permanently to remove any of the children to Algeria.
I turn now to the allegations of a sexual nature. Increasingly after mid-February 2013, the mother reported to police or social workers a number of matters said or done by one of the children which has led her to conclude and believe that the father has exposed the children to inappropriate and/or sexualised language or behaviour, or even actually sexually interfered with one or more of the children. Before referring to the substance of the allegations and the matters reported by the mother, it is convenient to refer, first, to the physical medical examinations which were undertaken upon each child; and to the DVD recordings of ABE interviews with each of R and K.
All three children were the subject of intimate physical medical examinations on 19th April 2013. No abnormality or sign of any injury or interference was seen in either R or K. It must be stressed that the absence of a physical sign of sexual abuse does not preclude that a child has been the subject of some form of physical sexual abuse, for abuse may leave no mark or sign. Nevertheless, in this case in relation to the two girls there is an absence of any physical sign or evidence of physical sexual abuse.
In relation to the boy, Z, the position is more complex. His penis and scrotum and what I might call his front genital area were entirely normal with likewise no mark or sign of physical sexual abuse. Upon examination of his anus, the examining doctor observed white irregular scarring on the anal verge between twelve and one o’clock. Anal tone was normal and there was no evidence of reflex anal dilatation. The doctor reported, and I accept, that the scarring at the anal verge is an unusual finding in a child of that age (he was then aged about 22 months) and “demands an explanation”. One explanation could be a healed tear or fissure of the anus caused by an object (eg a finger) penetrating it from the outside.
In the present case, however, there are two complicating features. First, Z suffers from the inherited genetic condition of Ehlers-Danlos syndrome. The doctor reports at paragraph 11, now at bundle page D36, that Ehlers-Danlos syndrome “seems to predispose to scarring, at least in some individuals”. At bundle page D34 she reports that “many of the variants of Ehlers-Danlos syndrome are characterised by increased skin fragility and scarring, even in response to relatively minor laceration.”
The second complicating feature is that for a substantial period Z had suffered from quite severe eczema. The eczema extended to his front genital area and to his buttocks and caused him considerable itching and discomfort. The doctor reported that a possible explanation of the scarring at the anal verge is the healing of infected eczema at the anal verge. Under the heading “Medical history”, now at bundle page D24, the doctor recorded that “he sometimes got anal itching when his eczema was bad”, although at paragraph 8, under the heading “Opinion”, now at bundle page D25, she wrote “… mother seemed quite clear that this part of his body [viz the anus] had not been affected when he had” eczema. In her oral evidence the mother said that she was not that clear that he did not have eczema at the anus. It was only to the best of her recollection.
This is a child who does have a tendency to bruise and scar easily due to his Ehlers-Danlos syndrome, as the mother herself said. He suffered frequent and quite severe eczema in many parts of his body, including at the buttocks and front genital area. It seems to me impossible to exclude that the scarring observed at the anal verge was not the result of eczema coupled with Ehlers-Danlos syndrome, and in my view the observed scarring affords no reliable physical evidence of physical sexual abuse. Specifically, although the scarring would certainly be consistent with someone having inserted a finger into Z’s anus, it affords to reliable evidence on the facts and in the circumstances of this case to support allegation 11, to which I will later refer (namely K saying that the father “puts his finger up Z’s bottom”).
In my view, the DVD recorded interviews of K and R are no less equivocal than the physical evidence. The DVDs are available for anyone with a proper interest in this matter to view and have been seen by both parents and their lawyers and by the guardian. Regrettably, no verbatim transcript was made although during the hearing, at my request, the advocates made a short written transcript of a short section or clip of the second interview with K. I have viewed the DVDs with care myself. The biggest impact of the DVDs is, sadly, to reveal just how severe is the physical and mental or intellectual impairment of R.
K was interviewed by the police twice, first on 2nd May 2013 and again on 23rd October 2013. At the time of the interview in May, K was just 4. She was engrossed in playing with a doll’s house. She was difficult for the interviewing officer to engage. She said at one stage that Z is 8 (he was in fact not quite 2 at the time). She was asked whether Z saw “a bad man” (a phrase she is said to have used about her father) and she said no. The interview does not evidence or support any physical or sexual abuse or sexually inappropriate behaviour by the father. Again, as with the absence of physical signs, the fact that K says and “discloses” nothing is not of itself any evidence that nothing had happened, but it is an absence of evidence that something had happened.
K was interviewed for a second time on 23rd October 2013. By then she had not seen her father since February, and her contact with him had abruptly ended for reasons which must have been inexplicable to her. Further, she had had a session of so-called “direct work” with the social worker, Ms Jaine Radcliffe, on 27th August 2013. This was directed to teaching the children about their private parts and how to keep themselves safe. It had been the basis of allegation 12 which is now no longer relied upon, as the sources of evidence in relation to it from the social worker and the carer, Miss Jessica Greenhalgh, who was present, and (hearsay) from the mother, who was not present, are so divergent. According to Miss Greenhalgh in her statement to the police, made two days later on 29th August 2013, and now at bundle page D47, the session began with the social worker asking R (in K’s presence) if daddy had hit her.
So much had been said to K by October by her mother, the social worker, and others, that the reliability of what K said in the second interview needs to be assessed with considerable circumspection. The interview began badly with the officer asking her “who is the big bad man”, itself a leading question. She said it was daddy. When asked, what does the big bad man do, she essentially gave an account of his smacking her hand with his hand, although she could not remember how or when. This may relate to the incident which is now allegation 2, to which I have already referred.
She said there was “nothing else about daddy”. In a very leading question, the officer then said (in the section of the interview which has been transcribed) “what about, I know you told Jess [Miss Greenhalgh] and mummy something had happened to Z’s bottom? Do you remember?”. K nodded and replied “Yes, he had a sore willy”. As transcribed by the advocates, the interview continued as follows: “Officer: He had a sore willy? Oh, and how did you know that? K: Because my mum is tell me … umm … because my mum has tell me don’t … umm … gotten it, my mum said. Officer: Your mum said what, sorry? K: My mum said don’t ‘orgotten that. Officer: Don’t got that? K: Yes. Officer: Okay, do you know why he had a sore willy? K: Because his willy keeps hurting. Officer: Keeps hurting. Did anything else happen to Z’s bottom that you have seen? K: No.”
The interviewer then moved on. K repeated that her father keeps smacking her, but just her hand. When asked “has daddy done anything else that you don’t like?” she replied no. When asked “is there anything else that is worrying you?” she replied no. When asked “has daddy done anything to R or Z?” she replied no. When asked “is there anything that you can think of that you want to tell me about, or do you think you have told me everything?” she replied “I’ve told you everything”.
In this interview, in which K was more engaged than she had been in May, she was clearly asked whether anything had happened to Z’s bottom and she said no. When she was clearly asked whether daddy had done anything to R or Z, she said no. She was clearly asked whether she had told everything, and she said that she had. The interview accordingly represents an absence of evidence in support of allegation 11 (that the father put his finger up Z’s bottom) or any of the allegations apart from allegation 2.
The fact that K said that Z had a sore willy which kept hurting is explicable by the eczema which, it is agreed, affected that area and may indeed have caused or induced what was called his “pelvic grinding” in allegation 14 which has now been withdrawn. The answer “because my mum is tell me … because my mum has tell me don’t … umm … gotten it, my mum said” is worrying. I and some of the advocates believed K was saying that her mother had told her not to forget to tell something about Z’s bottom or willy – ie that she had been coached. The mother denied that K was using the word forgotten or forget and denied that she had coached her, except to say that she must tell the truth. I cannot reliably draw any conclusion adverse to the mother from that passage and I do not do so.
The DVD of the interview with R on 23rd September 2013 is, frankly, distressing and painful to behold, because of the extent of her physical and intellectual disabilities in a child whose chronological age was then nearly 8. The interview posed great challenges for the interviewing officer and Ms Radcliffe, the accompanying social worker. Nevertheless it has to be said that at several points the interviewing was defective because of the use of leading questions, prompting, and words or gestures of encouragement or approval.
The only thing that R said with any clarity and apparent spontaneity was that daddy had hit her on the face with a hammer, a word she repeated several times, probably due to echolalia. It is in fact inconceivable that the father could have hit R on the face with a hammer or any sort of damaging implement or tool (nor is it alleged). R cannot wash or clean herself and so is the focus of intense observation by her mother or carer several times a day as they perform those tasks for her. No sign of the slightest physical harm to her face has been reported or observed.
I deeply appreciate that people such as R are amongst the most vulnerable of all, and that society must be especially careful not to deny them protection because of their difficulties in communicating. That said, I cannot place any judicial reliance at all on the content of the interview with R as any evidence against her father. She was rarely coherent; she was led; she appears in some distress at the whole process; and her avoidance and low level of intellectual functioning is obvious.
I now turn to the remaining allegations which are still pursued, namely 6, 8, 9, 10, 11, 15, 18 and 19. These may be said to fall into two groups. Allegations 6, 8, 11, and 15 relate to things that a child has said their father actually did. Allegations 9, 10, 18 and 19 relate to things one of the children has said or done which do not directly implicate the father but which the mother believes indicate that the child must have been exposed to sexualised behaviour or language by the father. Of course the allegations do have to be viewed not only separately and individually, but as a whole. Indeed, the essential case and belief of the mother is that while any one or more of the allegations may have an “innocent” explanation, it is the cumulative weight of them which leads her to believe that the father must have done things either directly to the children or with his girlfriend in their presence.
I must, however, first consider them separately, and I start with those in which a child is said to have reported or referred to something their father actually did. Allegation 6 is that in February 2013, after K and Z had been on a visit to the home of the father’s girlfriend, L, K was sitting on her mother’s knee and started licking her mother’s ear, saying “it’s like daddy does”. In her statement to the police made on 6th September 2013, now at bundle page D51, the mother wrote that on an occasion in February 2013 K “got overexcited and put her tongue in my ear and nibbled at my ear, saying ‘do this like daddy and his friend’”. The inference appears to be, therefore, not that the father actually did anything to K’s ear, but that he was doing it sexually to his girlfriend in the presence of K.
The father says that on the one occasion when the children visited L’s home, L’s own teenage children were also present, and indeed that L’s former husband came and went, and he denies that he behaved sexually or inappropriately towards L in the presence of the children. The mother’s account of this incident has grown in the telling. In allegation 6 she states that K “started licking” her ear. To the police she had said that K had put her tongue in her ear and nibbled at her ear. By paragraph 16(d) of her statement dated 6th June 2014, the mother was saying that K began licking and sucking her ear and “was actually sticking her tongue down [her mother’s] ear and moaning and nibbling all around [her] ear”. The mother herself said in paragraph 16(d) that K often pretends to give a kiss but instead licks your face then giggles “which I [the mother] consider to be normal toddler behaviour”.
I am prepared to accept that on the occasion in February, instead of (as normally) licking her mother’s face, K did lick the ear. She may have emulated a nuzzle between the father and L. By the time of her latest account, the mother has exaggerated and embellished her evidence. In my view, allegation 6, properly confined to a lick of the ear, is trivial.
Allegation 8 is that in March 2013 K asked her mother to “bite her bottom like daddy does”, indicating her actual anus, not her buttocks. The father admits that he has playfully, innocently and in a loving manner bitten on the children’s bottoms and, like the mother herself, kissed and tickled their tummies. He denies any kind of sexualised behaviour and denies biting at K’s anus. The mother’s accounts in her police statement dated 6th September 2013, now at bundle page D51, and more recently at paragraph 16(h) of her statement dated 6th June 2014, are subtly but significantly different. To the police she said that K said “bite my bottom like daddy” and then pulled down her knickers and tights. The mother then asked where daddy bites her and she pointed to her anus and said “there”. In her recent statement, K was already apparently undressed when she made the remark. She “pulled her bum cheeks apart and pointed to her anus. She was quite graphic.”
This, too, seems to me to be an account which has become exaggerated in the telling. That the father bit her innocently and affectionately on her buttocks is not in dispute. I am not satisfied that he deliberately parted her buttocks so as to bite, kiss or lick her on the anus itself. I reject allegation 8 as evidence of any inappropriate or sexualised behaviour by the father upon K.
Allegation 11 is that in March or April 2013 K reported that the father “puts his finger up Z’s bottom”. She referred also to someone by the name of “Alum” which no one in the case has identified. If it is true that the father inserted his finger into Z’s anus, viz penetration, that is grave sexual abuse for which, on conviction, the maximum sentence is life imprisonment. At all times up to the last contact between Z and his father, Z wore nappies and suffered from eczema, including certainly upon the buttocks. The father frequently changed his nappies and described how he would, in a perfectly normal manner, clean and wipe his anal area and apply Sudocreme to it. He denies that he ever sexually or abusively inserted his finger actually into Z’s anus, viz penetration.
It is clear from the mother’s statement to the police, and also paragraph 16(i) of her recent statement, that this allegation relates to an incident during tea on 12th March 2013 at which the carer, Miss Greenhalgh, was also present. Their accounts differ. To the police the mother said, now at bundle page D51, that K said “mummy, can I tell you something? Z’s bum goes on daddy’s finger.” She then said “no, no, on his feet” and then that “Z’s bum also goes on Alumpf there”, pointing a finger near her own crotch.
In her statement dated 29th August 2013, now at bundle page D46, Miss Greenhalgh said “… we were all sat at the table having tea … K got giddy and said something about Z’s bottom. She kept pointing to her crotch area and using her finger indicated an erection. She said that Z was sat on it and she kept mentioning the name Alum.”
On Miss Greenhalgh’s account, therefore, K did not say anything to link her father with what she was describing. Although Miss Greenhalgh said that K used her finger to “indicate an erection”, it seemed to me when Miss Greenhalgh demonstrated the gesture in the witness box that she may simply have been using a straightened finger without necessarily simulating an erection. In her oral evidence, Miss Greenhalgh was emphatic that K did not say that her father did it. She just used the word “Alum”.
In my view, the evidence about this whole incident and allegation is vague, divergent and unreliable. On the evidence of Miss Greenhalgh, the father was not ever mentioned, only someone called Alum. It is alleged that K referred to Z’s bottom, but when she pointed and gave a demonstration, it was, on the evidence of Miss Greenhalgh, clearly to her own front or vaginal, rather than her rear or bottom, area that she pointed. In any event, it is perfectly possible that K had seen her father cleaning and applying cream to Z’s anal area appropriately as part of nappy changing, and mistakenly thought that his finger had been inserted. Notwithstanding the physical findings to which I have already referred, I am not satisfied on a balance of probability that the father has ever inserted his finger into Z’s anus, and I reject the thrust of allegation 11 which is to the effect that he did.
Allegation 15 is that in September 2013 R told the school nurse that her father had hit her in the mouth. The sole source of this allegation is a social work record, now at bundle page E152, which reads as follows:
“[The nurse] was taking R from class to a dietician appointment in the school. Whilst pushing R down the corridor in her wheelchair, R suddenly said ‘my daddy hit me’. There was then a pause and she then said ‘in my mouth’. [The nurse] made a non-committal remark like ‘oh, dear’, just to reassure R she had been heard. Class also reported that R had blurted out yesterday ‘I hate Michael’. They do not know who Michael is as this name has not been mentioned before.”
The record is based on a note made by a social worker, who was not Ms Radcliffe, of a telephone call. It is not clear who was actually speaking to the social worker, whether the nurse herself or an intermediary. It is to be noted that the reported conversation followed just two days after the ABE interview in which R had said, patently unreliably, that her father had hit her face with a hammer. The evidence in relation to allegation 15 is hearsay and unreliable and I reject allegation 15 as not proved.
I turn to allegations 9, 10, 18 and 19. None of these include any direct reference by a child to their father. Rather, they allege forms of sexualised behaviour by K in the period since all contact ceased. Allegation 9 is that on an occasion during March 2013 K was dancing in the kitchen in her underwear and said “pull my knickers down - it’s the big bad man and it’s the minge show”. She was later to tell the social worker that the big bad man is daddy. The allegation continues “… it is alleged therefore that the father exposed the child to inappropriate and/or sexualised words or behaviour”. The word “minge” features also in the now withdrawn allegation 7. I accept that it is not a word that the father either used or knew and that K cannot have learnt it from him. The mother said that it is not a word that she herself knew or used in the home, although K did once ask to have a guinea pig (or pretend guinea pig) which she said she wished to call Minge.
The mother has given two accounts of this incident. In her police statement dated 6th September 2013, now at bundle page D51, she said that after saying the words and dancing in an erotic fashion, K was hyperactive, running around and clapping, giggly and then aggressive. She then suddenly demanded a shower immediately. In her recent statement at paragraph 16(h), the mother said that after K was dancing in a very sexual way “I kneeled down and held K. She was upset and sobbing in my arms. I cannot recall if I went to her and she starting sobbing or she started sobbing so I went to her … K was so distressed that it took a long time to calm her down.” When challenged about these divergent accounts in cross-examination, the mother said that K was sobbing in her arms and then hyperactive.
I am quite prepared to accept, and do accept, that there was an occasion upon which K danced in a sexualised way and may well have referred to the minge show. By then, she had been at school for some six months since September 2012. I am unable to conclude on a balance of probability that the dancing or use of the word minge resulted from anything said or done by her father.
Allegation 10 is that on an occasion during March 2013 K inserted her tongue into R’s mouth. This is not a matter which the mother mentioned to the police. In her oral evidence the mother said that the two girls were tucked up in bed together and the mother heard them giggling. She went in and saw that K was holding R’s face and they were French kissing. She told them it was not okay and they stopped. Whether or not that incident happened, there is nothing to support the conclusion in allegation 10 “that therefore the father exposed the child to inappropriate and/or sexualised behaviour”.
Allegation 18 is that K has exhibited signs of sexualised behaviour including masturbating, pushing paper, cushions or clothes into her genital area when upset. Again, even if this happened, there is nothing to link it with the father exposing the children to inappropriate or sexualised behaviour. It is comfort-seeking behaviour for which there could be several explanations, including the stresses of the breakdown of her parents’ marriage, the loss of her father from the home, and the sudden and unexplained cessation of all contact with him.
Allegation 19 is no more than a generalised catch-all allegation that “notwithstanding whether any of the specific allegations are proved … the father has exposed the children to sexual information inappropriate for their age as evidenced by K’s sexualised behaviour and the children’s reaction to discussing their father”. As none of the specific allegations have been proved, I cannot accept that the cumulative effect of the allegations or of K’s sexualised behaviour in some way establishes that it is their father who has exposed them to it.
Generally I did not regard either parent as a particularly reliable or convincing witness. In the case of the father, allowance must be made for the fact that English is not his first language and he seemed confused by some of the questioning. Further, his case is essentially one of denial. For the reasons I have now given, I am not satisfied on a balance of probability that the father has behaved towards, or in the presence of, the children in any inappropriately sexualised way, or exposed them to inappropriate sexual language. I therefore reject allegations 6, 8, 9, 10, 11, 15, and 19.
Miss Saiqa Chaudhry, on behalf of the father, invited me to go further and positively to find that the whole case has been fabricated by the mother, probably as a reaction to learning during February 2013 that the father now had a girlfriend, L. I am unable to go that far. Aspects of the case do gain some support from the evidence of the care worker, Miss Greenhalgh, and I do accept that during spring 2013 K, in particular, displayed sexualised behaviour and used rude words which she had not previously done. I accept that Z displayed the “pelvic grinding” described in withdrawn allegation 14. I accept that K did draw apparently rude drawings on her leg while camping in August 2013, as described in withdrawn allegation 13. I accept that in January 2014 K drew the picture, now at bundle page D14(n), which K told her mother depicted Prince Charming with a bottle up his bum, as referred to in withdrawn allegation 16.
The case is not, therefore, wholly fabricated and I do not so hold. I do consider that the mother overreacted; added up two and two and made five; and unjustifiably and mistakenly concluded and convinced herself that the father had abused the children and exposed them to sexualised words and behaviour. However, I am not satisfied that the father has said or done anything to, or in the presence of, his children which should stand at all in the way of contact, including unsupervised direct contact; or which should impact in any way at all upon future arrangements for their upbringing and care. It is damaging that the children have now been prevented from seeing their father for over 16 months. I sincerely hope that that damage can be repaired. I must leave it to a local judge with judicial continuity to decide the way forward if it cannot be agreed.