County Council v Y & Anor

This case had the potential for a grave miscarriage of justice and wrongly breaking up a family, perhaps forever. On 21 October 2003 I gave permission to a local authority to withdraw their application for care orders, which had the effect that all legal proceedings came to an end. What follows is not a judgment in the conventional sense, for I did not hear any oral evidence, did not hear any disputed arguments, and have not had to rule or adjudicate upon anything (save to discharge the court’s own duty when granting permission to withdraw). Rather, the purpose of this “judgment” is to draw the attention of courts and the legal and medical professions to the history of this case, for the lessons which may possibly be learned from it.

The case is the same case that has already been reported as Re Y and K (Split hearing:evidence) [2003] EWCA Civ 669, [2003] 2 FLR 273 following an earlier appeal to the Court of Appeal.

The essential history is as follows. A mother has a daughter, T, who was born in April 1998 and is now aged five. In 1999 the mother met a man whom I will call the father. They began to live together and still do. From their relationship they have a daughter, C, who was born in May 2000 and is now aged three.

In December 2000, T stayed for a weekend with a maternal aunt. The aunt reported to the local authority that while she was changing T’s nappy, T (then aged 2 years and 8 months) had asked the aunt not to hurt her, saying that Daddy “hurts my bum”. T said that Daddy “pokes” her and then touched her vaginal area with her own finger.

The local authority arranged for T’s genital area to be medically examined at the Royal Victoria Infirmary in Newcastle-upon-Tyne. The examination was performed by a specialist registrar in paediatrics, Dr Paula Drummond, under the supervision of a consultant paediatrician and senior lecturer in paediatric forensic medicine, Dr C de San Lazaro, who was also present. Dr Drummond’s report dated 22 December 2000 said that:

“Anogenital Examination

T had engaged extremely well with general physical examination and been completely undistressed by this. However, she then had a bizarre outburst of crying when we first opened her legs to look at her perineum and although she became extremely distressed, screaming, she did not actually try to move away or close her legs. As the examination progressed she relaxed and allowed full examination but remained very quite and tearful. Examination of her hymen showed a dilated orifice after initial spasm and inability to relax. The hymen was redundant but opened out fully in the end. There was a deep transection notch at 7 o’clock and the hymenal orifice was approximately 0.6cm.

Conclusion

These physical signs and T’s behaviour when examined do suggest that T has been subjected to sexual abuse and they support at least, digital penetration. These findings along with the comment from T are extremely concerning and therefore this young child with poor verbal skills should be considered significantly at risk.”

During the examination, Doctors Drummond and/or San Lazaro took a photograph.

Initially after this examination the mother separated from the father and, in summary, the children and the family have been under the close scrutiny of the local authority ever since. The parents resumed living together in April 2001 and care proceedings were commenced in June 2001.

On 17 July 2001 T was examined again at the Royal Victoria Infirmary by another paediatrician, Dr Karen Rollison. She apparently noted “a degree of healing”, thinning of the right side of the hymen, a notch at the 7 o’clock position and a “pale bump at 5 o’clock”. There was no evidence of recent trauma. She made a drawing but did not take a photograph.

In February 2002 a childminder reported that T had said to her that Daddy says it (viz her vagina) is dirty and he has to clean it out. As a result, both girls were removed at once to foster parents and were examined by Dr San Lazaro at the Royal Victoria Infirmary on 15 February 2002. C was entirely normal. In relation to T, Dr San Lazaro reported on 17 February 2002 as follows:

“In the past T has been seen on numerous occasions in this unit. On 15 12 00 a complete transection at the 7 o’clock position at the hymen was noted. The hymen being almost in two planes at this point.

Thereafter, T was seen on a number of occasions because of intermittent vulvitis (soreness of the genital area). This is a common problem of early childhood and does not necessarily have sinister implications. Thus, she was seen in July 2001 by Dr Rollison, in September by Dr Curtis and in December by me.

Dr Rollison noted scarring and a degree of healing in July 2001 and Dr Curtis did not note any acute findings. In December she was not re-examined.... No arrangements were made for review.

Today, on examination in this unit, we note T to be a delightful little girl who engages reasonably well. General examination did not show anything of significance.

Genital inspection was of considerable interest. As had been suggested in two previous examinations, by Dr Rollison and Dr Curtis, the transection to the right hymen appeared to have significantly healed and this part of the hymen had fused. There was a small amount of altered vascularity around this area, as a remnant of what had been present before. However, the tissues above that area of the hymen had become thickened and notched and there was what appeared to be a disruption and an area of healing allied to the opposite side of hymen at around the 5 o’clock position. There was marked hypervascularity around all the tissues, which looked somewhat inflamed, although externally there did not appear to be any inflammation of the skin.

Conclusion

I can only speculate on these findings, which are a little confusing and suggest that they would support a period of uninterrupted healing of the tissues and then possibly a further episode of trauma. This cannot be said with any certainty, but the chronology of the findings would tend to support such a hypothesis.”

On this occasion, two photographs were taken.

The children were returned a few days later to their mother, but in May 2002 the father was again required to leave home, which he agreed to do, and he had to live away and have only supervised contact with his children until June 2003.

Within the care proceedings themselves permission was granted to the parents to instruct as an expert witness Dr J. Victoria Evans, who describes herself in her reports as an independent consultant physician and gives a long history of forensic experience, including in the field of sexual abuse. Her first report is dated 8 May 2002, She did not at that stage physically examine T, but considered all the relevant medical reports and notes, and the drawings and the photographs that had been made/taken at previous examinations. In relation to the photograph taken during the examination by Dr Drummond and Dr San Lazaro on 15 December 2000, Dr Evans commented:

“There is a single photograph taken at this examination. As the genitalia are not centrally placed in the frame of the photograph it is difficult to tell if there has been an equal amount of traction exerted on each genital lip and therefore caution should be exercised in interpreting any findings. The hymen is annular. There is some oestrogenisation of the hymen (which would be expected at this age) and there would appear to be more hymenal tissue on the left than the right of the hymen. There is a deep defect or notch in the hymen at 7 o’clock. It is difficult to be sure if this goes across the full width of the hymen to its base (a transection). The vaginal walls can be seen. There is no evidence of any recent injury, nor of any discharge.”

In relation to the two photographs taken during the examination by Dr San Lazaro on 15 February 2002, Dr Evans commented:

“The appearance of the hymen is significantly different from that in the previous photograph taken on 15 December 2000.

Again the photographs from February should be interpreted with a degree of caution as in neither is the genitalia ‘square on’ to the camera.

The deep notch/transection at 7 o’clock would appear to have ‘disappeared’ almost completely leaving only a slight change in the vascular pattern and the suggestion of an angularity at 7 o’clock on the free hymenal edge.

There is a marked ‘bump’ of tissue which was not present on the photograph from the first examination between 7 and 5 o’clock.

Above the bump there is a marked narrowing of the hymenal tissue, which appears thinned, and with a marked increased vascularity in the area.

There is erythema (reddening) of the hymen (except the bump) and perihymenal tissue but not the inner aspect of the labia (genital lips).”

Later in her report Dr Evans said:

“The current state of knowledge is that whilst partial tears of the hymen may heal either completely or with a notch or deficiency of the hymenal edge, complete tears or transections always heal leaving a full width defect in the hymen unless there is surgical intervention. (I am aware that there are longitudinal studies underway at present in the US seeking to confirm or otherwise this view) …

In the instant case there would appear to have been almost total healing of a documented deep notch/transection present at examination some 15 months earlier, which would challenge the current understanding of healing of hymenal injuries.”

Dr Evans concluded:

“Conclusions

The genital findings as documented in the contemporaneous medical notes, the various medical reports and in the photographs, in my opinion:

a)

In the absence of any alternative explanation, the findings are diagnostic of blunt trauma to the hymen prior to the examination on 15 December 2000. This is consistent with there having been digital and/or penile and/or object penetration through the hymen on at least one occasion.

b)

There appears to have been almost complete healing of the deep notch at 7 o’clock over the next 14 months.

c)

The genital findings on the 15 February 2002 very strongly suggest that there has been a further episode of penetrative trauma between the examinations in September 2001 and February 2002 to the hymen resulting in changes to the hymen between S and 2 o’clock positions.”

Doctors San Lazaro and Evans then had a joint meeting in June 2002 after which they produced a joint report dated 25 June 2002. They expressed the agreed joint opinion that:

“The findings at the first examination are abnormal. It is not possible from the image supplied to be certain that the tear to the hymen at 7 o’clock is of full thickness (ie a transection and that it must have at one time extended to the point where two parts of the hymen were entirely separated from each other).

Recent research would indicate that tears of this nature, ie transections, are not expected to heal together unless there is surgical repair. All that can be said is that there was a significantly deep tear at this site, which was likely not to have been complete at the time of injury.

Such a tear indicates previous blunt penetration with an object of sufficient size to cause the hymenal tissue to stretch and yield.

The examination on 15 02 02 shows almost complete resolution of the original tear at 7 o’clock. There are significant changes on the left side including loss of tissue and a large bump. These findings can really only be explained as the aftermath of one or more incidents of penetrative blunt trauma, resulting in damage on an area of the hymen previously seen to be normal on examination and on photography in December 2000.

…………..

Summary

We agree that the series of examinations of T resulted in findings which are indicative of penetrative, blunt trauma, and that further trauma occurred after the first examination in December 2000. In the absence of any other tenable explanation, these findings can only be explained by repetitive penetrative sexual abuse.”

In September 2002 permission was granted to the children’s guardian to instruct as an expert witness Dr Robert Sunderland, consultant paediatrician at Birmingham Children’s Hospital. He, too, did not at this stage examine T, but he considered and reviewed all the medical notes, reports, drawings and photographs. In relation to the photograph taken on 15 December 2000, he commented:

“The clinical photograph dated 12 15 00 is not centred on the hymen and there is asymmetry in the traction to the vulva. The hymen and introitus show mild inflammation. The hymen appears to be of the frilly type with the left portion of the hymen overlapping the right at 7 o’clock. The resulting shadow may have been interpreted as a transection, it is not possible in this photograph to exclude a transection underneath the overlapping left frill. In the photograph the right hymen appears thinner than the left. The photograph also shows pallor and swelling or nodule in the five o’clock position where a nodule or cyst was noted in subsequent examinations. The photograph is consistent with traumatic rubbing with finger sized object through this hymen.”

In relation to the two photographs taken on 15 February 2002, Dr Sunderland commented:

“The two photographs dated 02 15 02 show an inflamed oedematous hymen with an irregular orifice and a nodule or cyst at five o’clock, Because of the oedema, it is difficult to estimate hymenal width; the right side appears normal but irregular while the left side appears thinner. This may be a photograph artefact, as the traction appears to be greater to the right. The irregularities to the hymenal rim at 7 and 9 o’clock are consistent with an old healed nick or small tear of the hymen but not a full width transection. The nodule or cyst at five o’clock on the hymen (seen on 15 2 02) are consistent with the nodule reported by Dr Curtis on 27 9 01, the pale bump reported by Dr Rollison on 17 7 01 and the pallor and swelling in the photograph of 15 12 00.”

The conclusions of Dr Sunderland were that:

“The photograph on 15 12 00 and the clinical drawings are consistent with rubbing away of the right side of the hymen by an object the size of an adult finger. The medical examinations on 17 7 01 and 27 9 01 (Dr Rollison and Dr Curtis) are consistent with resolution of the previous trauma, The examination and photographs on 15 2 02 indicate a swollen hymen that has either been infected or traumatised.

The photographs and clinical examinations indicate that T has suffered blunt (as opposed to sharp) trauma to right side of the hymen. It is not possible to identify the object which caused this trauma it is consistent with internal rubbing by an adult finger. Larger objects such as a penis, vibrator or broomstick cause more damage.”

On 6 January 2003 Doctors Evans and Sunderland discussed the case on the telephone and produced an Agreed Medical Statement which I quote in full:

“Dr Evans and Dr Sunderland discussed this case over the telephone on 6 1 03. We both had copies of the digital photographs dated 15 12 00 and 15 2 02. We are agreed that:

1.

The photographs had not been taken ‘square on’; this is a normal clinical occurrence.

2.

There is asymmetry in the traction applied to this child’s labia with more traction to the child’s left in 15 12 00 and to the child’s right in 15 2 02 — this is also a normal clinical occurrence.

3.

On 15 12 00 the hymenal orifice appears larger than normal for age.

4.

Taking the hymen as a clock face with 12 o’clock near the abdomen and six o’clock near the anus, there is an overlying leaflet of the left side of the hymen. Dr Rollison was sure that behind this there is a tear of the hymen.

5.

The right hand side of this child’s hymen (7 - 9 o’clock) appears thinner than the left hand side on 15 12 00. This is usually attributed to wearing away the hymen by the insertion of some object such a finger. We note that the thickness of this seven — nine o’clock section of the hymen on 15 2 02 appears normal, as this cannot be due to re-growth of a rubbed away hymen it may indicate the previous appears was an artefact or that there is considerable oedema of this area on 15 2 02.

6.

The hymen is generally swollen and inflamed in the photographs of 15 2 02. This may be due to infection or trauma.

7.

The swelling at the five o’clock area of the hymen on 15 2 02 is due to a hymenal cyst or nodule.

8.

The section of hymen between 2 and 5 o’clock is thinner (less deep) than the rest of the hymen. This may be due to wearing away of the hymen or a photograph artefact. We are aware that Dr Rollison was worried at the appearance of two to five o’clock as it looked quite different from the original photo with a lot less tissue which was thickened. We are unable to assist as to whether this is due to subsequent trauma or some photographic artefact.

9.

We are agreed that the hymen photographed on 15 12 00 and 15 2 02 is not normal. On 15 12 00 the right side of the hymen appears thinner than the left, the orifices are larger than expected for age and we are told there is a tear at 6 o’clock behind the left hymeneal leaflet. On 15 2 02 the hymen is generally inflamed and thickened with an irregular orifice, a cyst or nodule at five o’clock and apparent thinning of the left (2 - 5 o’clock) section. We are agreed that these findings are corroborative of allegations of digital penetration.”

I have now summarised the essence of the medical evidence at the time of the hearing, which was intended to be the final fact-finding hearing, before His Honour Judge Wood in late January 2003. Doctors Evans, Drummond, Rollison and Sunderland all gave evidence. Dr Evans and Dr Sunderland adhered to their opinion that the photographs of 15 December 2000 and 15 February 2002 all revealed evidence of trauma, both prior to 15 December 2000 and again prior to 15 February 2002. Dr Sunderland advanced the hypothesis, with which Dr Evans (who was recalled) agreed, that T had a sleeve-type hymen. This explained why in the February 2002 photographs there was no continuing sign of the abnormality in the 7 o’clock area.

During his evidence, Dr Sunderland said:

“First of all, the two photographs are not a normal hymen. … If I can make that as a clear statement. And I was aware that all of the doctors involved at some point have had some confusion in their reports.

I was very aware that Dr Evans was uneasy but could not completely explain it and I share that unease, which is why we mentioned possible photograph artefact particularly.

I am not quite sure why, but it was during her [Dr Evans’s] evidence it suddenly dawned on me that what we are looking at in the photograph is flat, it is only in two dimensions, and the common hymen is a disc, it is a flat ... the vagina is a tube, if you imagine a tube running away, and across the surface the hymen lies as a disc, and I was certainly looking at those photographs as a disc and I could not make sense of it and I suddenly realised that if in fact from the hymenal orifice, and I will try and give an illustration in a moment, if that was coming towards you like a little tube, which we call the sleeve hymen or the redundant hymen or the frilly hymen or the florid, we doctors do tend to mix our words, if it was that then everything fell into place for me.”

A little later he said:

“Where Dr Evans and I could not understand the 2002 photographs was it appeared that the 9 o’clock section had become normal and what we now realise is what has happened in fact is that in those two years this sleeve has become longer and the bit that is missing is the bit that would stick towards you. It is still missing. And it is blatant once you can understand that. Now that modifies what I have said before, because I said, ‘It appears now normal, was there a previous error?’ No, it was missing, it is still missing, but instead of coming towards you, it has disappeared.”

At the very end of the evidence of Dr Sunderland the judge was asked whether he had any questions and he asked:

So at the conclusion of his oral evidence in January 2003 Dr Sunderland continued to place reliance upon the photographs, and relied upon his sleeve-type hymen theory as explaining the apparent healing between December 2000 and February 2002.

Unusually, His Honour Judge Wood held at the conclusion of the medical evidence that the parents had no case to answer. He heard no lay evidence from the parents themselves or as to the statements that T had allegedly made to the aunt and child minder; and he effectively dismissed the care proceedings.

The children’s guardian and the local authority both appealed and on 7 April 2003 the Court of Appeal reinstated the proceedings and directed a fresh hearing before a fresh judge, for the reasons given in their judgments which are already reported and which I will not summarise.

I was identified as the judge who would conduct the fresh hearing in October 2003. On 16 May 2003, I gave directions. These included permission for Doctors Sunderland and Evans jointly to examine the genitalia of T on a single occasion. I gave that permission because by a letter dated 13 May 2003, Dr Sunderland wrote:

“Dr Evans and I have discussed this child over the telephone this evening (13 503). We are agreed that we cannot advise the court further without clinical examination. We recognise the intimate nature of the examination. We conduct such examinations frequently in our respective clinical practices. Such examinations are not distressing for children of this age however embarrassing they may be for adult observers.”

The examination was set for 11 June 2003 and Doctors Sunderland and Evans were asked to address the questions which they reproduce in their report (below). Their joint medical report dated 16 June 2003 said:

“T was jointly examined by Dr J V Evans (forensic physician) and Dr R Sunderland (consultant paediatrician) at the Lindisfarne Centre of the Royal Victoria Infirmary Newcastle on the afternoon of 11 6 03 …

T’s genitalia were examined in the supine (frog leg) and prone (knee chest) positions. With the excellent management of [a nurse] T was co-operative and not distressed in any way by this examination.

There was minimal erythema of the vestibule with no swelling, bruising or scratch marks.

The hymen was thin with a smooth rim. There were apparent irregularities at four and eight o’clock caused by a hymenal cyst in the five — six o’clock position (this is an incidental condition not related to abuse). The hymenal orifice was approximately 6mm x 4mm in maximal dimension, it varied considerably with respiration and movement. The posterior hymen was uninjured, some 6-7mm deep. Examination in the knee/chest position showed a smooth, normal, thin hymen with no evidence of injury, the only abnormality was the hymenal cyst.

The vaginal walls were visible through the hymenal orifice and appeared normal with no discharge, swelling, redness or foreign bodies …

11 still photographs of the genitalia were taken using the hospital colposcopy equipment (8 in the frog leg position and 3 in the knee chest position).

We were both independently puzzled and then concerned that these still photographs taken at our examination did not accurately represent what we had seen. We both expressed the view that had we seen these photographs in isolation, we would have been misled.

We have been asked 6 specific questions:

1.

Can you provide a description of the current appearance, shape and condition of T’s hymen?

T has a normal hymen apart from a cyst at the five-six o’clock position.

2.

Does the current appearance provide any support for the alleged sexual abuse? If so, how?

No.

3.

Does today’s examination provide you with assistance in interpreting the photographs of December 2000 and February 2002? If so, how?

Yes. Today’s photographs do not accurately represent what we saw, earlier photographs misled us.

4.

In the light of today’s examination do you view those photographs as reliable?

No.

5.

Having particular regard to today’s examination, and your present interpretation of the photographs, diagrams and notes, is there any evidence of sexual abuse? If so please set out in detail.

No.

6.

Has T been sexually abused, if so when and how often?

We found no evidence of any previous sexual abuse.

7.

Can the doctors say if they agree or disagree with each other on any points, issues or answers?

We are agreed in our answers to this joint statement. We have no areas of disagreement.”

Pausing there, that is a remarkable report. These two doctors (both instructed as the expert witnesses in the case), who had previously consistently considered and maintained that there was evidence of sexual abuse, now said that there was none. They said the photographs upon which they had previously relied were unreliable and had misled them, and they said that the photographs (11 in all) that they themselves took that day, were not reliable and “do not accurately represent what we saw”.

Dr Evans followed up the joint report by a letter dated 7 July 2003 in which she said:

“As I am sure you will be aware the genitalia are three dimensional structures and the hymen itself is a dynamic structure which will relax and open depending on a number of factors including the skill of the examiner, the relaxation of the child and the examination position used. The ability to capture accurately what is seen also depends on a number of independent additional factors including the technical expertise of the photographer, the type of equipment used, the photographer’s familiarity with the equipment and the particular anatomical idiosyncrasies of the person being examined eg a deep set hymen is much more difficult to photograph than a shallow set one.

A video of an examination taken using a colposcope can often be more informative than still photographs.

Whichever system is used, they all have their limitations and in clinical practice, all other things being equal, all clinicians who regularly use such equipment are familiar with occasions when photographs are taken which do not accurately reflect what they saw. This is a particular problem with still photographs. When this is a problem it is obviously important that the clinician concerned makes a contemporaneous note of their concern as was done by Dr Sunderland and I in the instant case …

Had we seen some of the photographs which we took in isolation without the benefit of examination of the child, the photographs may have misled us into thinking that there was some abnormality of the hymen present when in fact there was not.

This experience reinforces the fact that colposcopic photography, even though it is considered to be ‘the gold standard’ in respect of examination, and especially still photograph (unless it has been taken from a video so that the video is there for reference), should still be approached with caution. Its value will depend on the many factors operating at the time, not least the skill of the examiner, the skill of the photographer and the type of equipment in use.

Where there are serious discrepancies or disagreement between the contemporaneous medical notes, medical reports and the photographs from an examination, the reliability of each of the elements needs to be considered separately and assessed, and, if necessary, as in the instant case, the child may need to be re-examined.

The great difficulty which we all had in making sense of the earlier contemporaneous medical notes, diagrams and photographs, in respect of T, was I suspect due to the fact that we were misled into thinking that the photographs were an accurate representation of what was there — whereas in reality all three elements were misleading and could not be reconciled.”

Dr Sunderland wrote a letter dated 10 July 2003 in which he said:

“I agree with all that [Dr Evans] has said in [her] letter of 7 July 2003. This child was a virgin when examined by Dr Evans and myself on June 2003. In medicine, as in life, virginity cannot be restored.

Dr Evans and I were clear on 11 June 2003 that this child was a virgin with a hymenal cyst. We both expressed surprise when the photographs were printed as these did not represent what we had seen with binocular vision. We understand that the previous photographs were taken with different equipment. We did not have anxieties that this particular equipment was somehow miscalibrated or interfered with. My conclusion is that when there is doubt about the interpretation of colposcope photographs, the gold standard has to remain the clinical examination. This is the foundation of all medical practice ….

Comments by Dr Evans and myself that the photographs did not actually reflect what we had both seen arose because we both appreciated that had we examined the photographs alone (without seeing the child) we could have been misled regarding the normal undamaged appearance of this hymen (apart from the hymenal cyst). We were aware that any other doctor asked to examine our photographs alone could have been misled and we wish to draw this to the court’s attention. I would further draw the court’s attention that my previous reports have been based on examination of the previous photographs and diagrams. My clinical examination together with the 11 June 2003 photographs explains to me my previous difficulty in reconciling the evidence in this case. The experience confirms previous clinical anxieties that colposcope photographs alone should be treated with caution.

The implications for good practice in child protection include the need to treat colposcope photographs with caution, the need for the courts to appreciate intimate examination may have to be repeated (sensitive experienced doctors can to this without distressing a child). There needs to be much more open discussion between paediatricians and gynaecologists in cases of alleged female sex abuse and there will be continuing discussion between forensic examiners, paediatricians, gynaecologists and other doctors regarding this sensitive and difficult area.

I conclude by stating that T was a virgin when examined by myself on 11 June 2003.”

The joint report dated 16 June 2003 and the letter of Dr Evans of 7 July (but not that of Dr Sunderland of 10 July, which was received too late) were sent to Dr Rollison, by now a consultant paediatrician at the Royal Victoria Infirmary, who commented by a letter dated 14 July 2003. It is too long to quote extensively but I hope that the following is a fair summary:

That was a reference to Dr Astrid Heppenstall-Heger in California, who has been described in this case as an expert of international renown in the field. Permission to instruct her was granted by Mr Justice Singer on 22 July 2003. She made two reports dated 16 August and 24 September 2003.

The key comment in her first report is that “if you have an acute, traumatic tear of the hymen the edges do not spontaneously grow back together. If there is a deep transection extending to the base or even near to the base of the hymen that defect would persist unless it is surgically repaired … There is no medical possibility that edges of a hymen that have healed from acute trauma would spontaneously regenerate and grow back together”. If the final examination [viz in June 2003] was normal “the hymen was always normal. Mistakes are made in the examination of pre-adolescent girls, particularly those who are this young. Mistakes are made because an examiner hurries and is reluctant to put girls in the prone, knee-chest position when they are so apparently certain of the findings”.

Dr Heppenstall-Heger was then sent further material, including all the photographs. Her comment upon the photograph taken on 15 December 2000 during the examination by Dr Drummond was that:

“Hymen has fold at 7 o’clock; fold prevents visualisation of any trauma at 7 o’clock. Adequate labial traction or the prone knee chest position would have provided adequate visualisation in order to determine whether there was a defect, transection or notch at 7 o’clock. I do not believe that this examination [viz what was observed] was abnormal.”

Her comment upon the examination recorded, but not photographed, by Dr Rollison on 11 July 2001 was that:

“ ….. it is of interest that Dr Rollison does document the bump etc. at 5 o’clock which may be the anatomical variant that caused all the confusion in this case, ie it is redundant and moves back and forth obscuring the anatomy except when the child is placed in the knee chest position.”

Her comment upon the photograph taken on 15 February 2002 during the examination by Dr San Lazaro is that:

“The redundant fold (could include cyst) to the patient’s left obscures the 5 o’clock position. This examination is also normal. Vascularity is what you would expect for the child of this age. The redness (erythema) is also predictable.”

Her comment upon the photographs taken on 11 June 2003 during the examination by Dr Sunderland and Evans is that:

“Better positions to determine that this hymen is normal in both the supine and prone (knee-chest). There may be a thickened fold/bump at 5 o’clock but regardless, the hymen is normal …

The overall conclusions of Dr Heppenstall-Heger were, first, that the hymen is and always was normal; and second, that “the original medical examination was misread because of a non-specific finding of the bump or fold that ... was probably attached to a longitudinal intravaginal ridge that could and did pull the redundant hymen back and forth depending on position and traction”.

The local authority and the children’s guardian remained concerned about the reported statements by T to the aunt in December 2000 and to the childminder in February 2002. But they rightly recognised that the reports of those statements alone could not, in the light of the final state of the medical evidence, justify a finding that T had ever been sexually abused by the father or, indeed, by anyone. So all parties joined in asking me to permit the local authority to withdraw their applications for care orders so all proceedings came to an end. I was, however, invited by all parties to summarise the history and the medical evidence.

I have already said that I heard no evidence or argument and I make no findings of my own. So far as possible, I have deliberately quoted the words of the doctors themselves and not summarised or paraphrased them in language of my own. I wish to make it quite clear that I do not make, nor wish to imply, any criticism of any doctor individually. Clearly, however, the story is a very serious one. The consequences for this family have been grave and might have been even more grave. For two and a half years from December 2000 until the joint report of Doctors Sunderland and Evans on 16 June 2003 all the expanding medical evidence was to the effect that T had definitely been sexually abused, with penetration, prior to December 2000 and probably again prior to February 2002. All four doctors who gave evidence to His Honour Judge Wood gave evidence to this effect, and (although she did not give evidence) the reports of the fifth doctor, Dr San Lazaro, were to the same effect.

This resulted in the father being twice required to separate from his partner and from his children for long periods, from December 2000 until April 2001 and from May 2002 until June 2003. The children’s guardian commented in her report that “Inevitably the children have been in the centre of a lengthy and no doubt exhausting process for the parents. I cannot imagine that the proceedings have not had an emotional impact on the children despite their apparent confidence. … The children have been harmed by virtue of the disruption to their family life”. I agree with the further comment of the guardian that “It is a devastating and sobering thought that had another physical examination not been carried out by Dr Sunderland and Dr Evans, the outcome to this case may have been very different”.

Many issues may arise for medical debate amongst doctors from the facts that I have recounted. I only want to identify or highlight two.

First, the facts of this case warn of the potential danger of relying upon photographs. My attention was drawn to the “Guidance on paediatric forensic examination in relation to possible child sexual abuse” produced by The Royal College of Paediatrics and Child Health and The Association of Police Surgeons in April 2002. In several places that Guidance implies reliance for second or expert opinions upon still or video photographs obtained by colposcope (see under the headings Joint Examination; Colposcopy and photo-documentation; and Statements/Reports). I do not presume to say that the Guidance necessarily needs to be revised. But it does respectfully seem to me that those bodies need to consider whether, in the light of the experience of this case, any parts of the Guidance should be revised.

Secondly, while the aim of minimising intimate examinations of children is a very important one, medically, psychologically and ethically (which the Guidance also reflects), further such examinations may nevertheless be preferable to a potential grave miscarriage of justice and irreparable harm to the family of the child or children concerned as well as their parents. There is much force in the comment by Dr Sunderland in his letter of 10 July 2003 that “The implications for good practice in child protection include the need to treat colposcope photographs with caution and the need for the courts to appreciate intimate examinations may have to be repeated”.