A (A Child), Re (Vulnerable Witness : Fact Finding)

This has been the culmination of a process which has its origins in the events of October 2009 when X, a very vulnerable then 17 ½ year old, made sexual allegations of the most serious kind against her uncle, the father of A.

The hearing, which spanned 8 days, has been so as to determine the truth or otherwise of X’s complaints as the first step in considering whether A and her father should be permitted to resume a normal and unrestricted relationship with one another.

The fact finding exercise, to say the least, has been highly unusual. A series of unforeseen difficulties arose over which I had little or no control. To take just two, the quite appalling noise disturbance from Carey Street during the first day of X’s oral evidence and the problems in securing continuity of representation for F.

Irrespective of the noise intrusion, at times it seemed as though there would be no chance of X being able to say anything at all over the video link. When she did, the manner in which she gave her answers made clear that the process was enormously difficult and for extremely unusual, only partially explained reasons.

If it had not been for the extremely impressive and dedicated involvement of Naomi Mason, a registered Intermediary with considerable experience of facilitating the evidence of vulnerable witnesses in the criminal and family courts, in all probability, X would have found it quite simply impossible to say as much as she did.

Before I pass from the preliminaries, it is necessary to describe the various ways in which prior to the hearing I intervened so as to ensure that F, A’s father, had an advocate on those days when X and her mother gave evidence. Neither could have tolerated direct questions posed by F, a litigant in person.

Accordingly, during the week before the hearing, I involved myself in both exploring the potential for public funding with the Legal Aid Authority and also in establishing whether pro bono representation could be arranged. My inquiries of the Legal Aid Authority assisted the Solicitors tentatively retained by F to make an application to the Exceptional Cases Funding Team. Although successful on the merits, F failed to obtain public funding because he is living with his father, the paternal grandfather. Under the regulations, the Agency is required to take into account the means of another individual who is maintaining or supporting the applicant for legal aid. I was led to believe there would be no prospect of a successful appeal.

On Friday 28^th June, I convened a hearing at which, uniquely, I requested the local authority to underwrite the cost of an advocate for F. With commendable generosity and speed, doubtless recognising the well nigh impossible situation which otherwise would have ensued, Z County Council indicated that it would meet the cost of representation for F for the two days of X’s evidence. There was an extension to three days when the local authority came to realise that X’s mother was unable to countenance the prospect of answering F’s direct questions.

On Monday 1^st July, Frances Orchover appeared for F. She had spent a large part of the previous weekend reading the papers; and had produced a position statement. During the course of the afternoon, I was told there was a difficulty for Ms Orchover in continuing to represent F. It had come to her attention, via the local authority, that at some stage earlier in the proceedings she had been instructed to appear for Z County Council at an interim hearing and had discussed the case with Ms Purkiss.

At lunch time on 1^st July, Ms Orchover had consulted the Bar Council and been advised, in unequivocal terms, that she could not continue.

I was faced with a fait accompli and can only express my gratitude to Ms Giz for agreeing to take up the role of representing F at such short notice.

X has not been able to provide a narrative statement. Nor is there an ABE interview. The content of what she alleges arises from the records made at the time by a number of key individuals. Some of the people X spoke to were known to and trusted by her. Others were professionals to whom referrals were made as the result of the initial revelation, a police woman and a social worker.

There are layers of material – X’s initial claims, her subsequent retractions and then further disclosures all occurring within two narrow time frames in October / November of 2009 and then in February 2010. The more significant revelations have been described in statements made by the seven witnesses who had involvement. Each of them has given oral evidence – X’s then Headmistress, “HM” (who was also the child protection officer at the school), her Pastoral Deputy Head “PDH”, the Head of Sixth Form “HSF”, two members of a national charity for which X carried out voluntary work “CW1” and “CW2”, a local authority social worker and a police officer.

Overlaid upon that evidence is the information X herself was able to supply during the two days when she was at court and giving evidence, though intermittently, with the assistance of Naomi Mason over the video link.

The key matters mentioned by X when, on 1^st October 2009 she first revealed to the PDH at her school what she claimed had happened to her, were these –

Over the next few days, there was a series of discussions between X and several of her teachers, PDH, HM and HSF. On 5^th October 2009, after a further conversation in which X had said sometimes it happened more than others and often at short notice when F is back in England. A referral was made to the police and social services.

The following day, 6^th October, there was a visit to X’s school by a police officer and social worker. X who had been very distressed on that day did not say anything about her allegations, refused to talk about her uncle in Australia and avoided questions by speaking of her uncle in America. She also made clear she did not want involvement from Children’s Services and would not agree to her parents being informed.

On 8^th October 2009, X made a series of significant documented allegations to CW1 and later on that day to the organisation’s Deputy Child Protection and Vulnerable Adults Officer in the presence of CW1.

The next day, 9^th October, X was seen again at school by the social worker. There was a long chat. X was reassured, told about the processes and also that she would not be forced to do anything. X then stated that everything she had told her teachers was true. She agreed to meet again with the police officer at a later date.

On 5^th November that meeting occurred. X repeated much of the material contained within her earlier discussions at school and with CW1. She spoke about the difficulties for her in talking – that it would make her a coward, that she deserves punishment and that you have to be punished when you do something wrong. She also said she had hurt someone deliberately; she had told her aunt that she had walked in on her uncle who was with another woman when she was 8 years old. Her aunt had been upset. X also said she was still seeing her uncle, though her parents did not know. He had her mobile phone number and tells her “where and when.”

On 28^th January 2010, X sought out CW1 wishing to discuss with her the anxieties she had about her attacker. She was worried about her cousin, his daughter, who he was due to be taking away on holiday over half term.

Exactly a week later, on 4^th February 2010, X spoke again to CW1, telling her that her cousin was 7 years old and reiterating that she had been 8 when “it started.” She added that her cousin would probably be OK because she “had not done anything wrong.” Asked if she would provide a name which CW1 could pass to the police, X said “(F’s name)”. She did not know how old he was but confirmed he lived in Australia.

From that synopsis of the key claims I turn to consider the way in which X gave her evidence on the two allotted days and the associated problems.

It had been planned that X’s testimony would occupy two days, Monday and Wednesday, 1^st and 3^rd July. The message which reached me first thing on Monday was that although she had arrived at court in good time, X was simply unable to contemplate answering questions. For more than an hour, Miss Morgan QC and Miss Little conferred with X, assisted by Ms Mason.

Eventually, at 12.12 or thereabouts, X was sworn. Initially, at least, Miss Morgan’s questions were closed, inviting only the answer ‘yes’ or ‘no’, arising out of recorded material, as had been suggested by Dr B, consultant forensic psychiatrist, and Ms Mason. The process was exceedingly slow, interspersed more often than not with lengthy pauses and there were many occasions when, at X’s or Ms Mason’s suggestion, I permitted X to confer privately with Ms Mason. The link was broken between the court and the video conferencing room so as to enable that to happen; and at other times so that various steps could be taken to deal with the noise intrusion.

From time to time, when the link was re-established, Ms Mason relayed X’s response to the question which had been asked of her, referring to material written on a white board and asking X to confirm the information given. Sometimes, suggestions were made by Ms Mason as to particular ‘open’ questions which X might be able to answer; and more often than not she did, without undue difficulty.

On the second day of her evidence, the broad patterns established on the first were repeated though X began to answer questions earlier, at 10.35. As before, there were many long pauses.

Just after 11.00 I suddenly realised that F was craning his head around from his seated position in the court room, his back to the wall directly underneath the large screen, in an attempt to see X. In fact, he had done so twice. I had failed to spot it the first time. He knew as well as anyone that his actions transgressed against what X herself had said was vitally important to her, namely that F would not be able to see her face and, thus, her reactions to what she was being asked.

Lady Hale had made clear in her judgment that it was not a requirement that F should be able to see X. Dr W’s and Dr B’s reports contain the clearest message about the sensitivities for X of being watched by F – that the prospect was a traumatic one with which she could not cope. Ms Mason’s ‘ground rules’ report had contained this warning – “X does not want F to see her reaction to the questions. She said the immediate reaction is difficult to control and she does not want him to see how much it affects her.”

Mindful of all those observations, and keen to ensure a fair hearing at which X could contribute as fully as possible, F had been positioned so that had he looked only ahead, he would not have been able to see X but could hear all that was said. The point at which he had turned around to look up at the screen was when Miss Morgan had asked X whether she “had lied about it being her uncle.”

Instinctively, I interrupted the evidence and drew attention to what had happened. When the video-link was interrupted, I rebuked F for what he had done. He told me, tearfully, he was sorry. Asked why he had looked round, he said it was because he was anxious and hoping X would tell the truth. A little later, Ms Giz indicated on his behalf that he had been hopeful X might accept she had been lying.

At all events, the effect upon X was considerable. Ms Mason reported her as having been shocked and upset. X felt the trust had gone because there had been an agreement which had been broken. X was also worried that I might have been cross with her though she had been reassured as to that. Thereafter, progress was painfully slow. As Ms Mason explained, X was anxious about “stepping over the line” in relation to almost every question asked of her. Just before 12 noon, X buried her face so that even Ms Mason could not make eye contact.

Miss Morgan applied for F’s exclusion from the court room. Ms Giz resisted stressing the extraordinarily difficult position in which F found himself. She suggested screens might be used or that F should go to listen in the mechanical recording room. In the result, I decided that F should leave the court room, that he could be told about what X had said by Ms Giz and also, if he so wished, have sight of the typewritten notes which Ms Habboo and Miss Little have created at the end of each day. I considered that to be the only feasible way of enabling X’s continued participation.

Almost as soon as I had ruled upon Miss Morgan’s application, I was told that X was distraught and had locked herself in the lavatories. She was refusing to come out. I adjourned until after lunch by which time X had emerged, been reassured and was apparently fit to carry on.

During Wednesday afternoon, she gave evidence for the first 10 minutes or so in an extremely chatty fashion, talking about her work with the charity. When asked about what she had said to CW1 there was a muting of the link so she could decide whether she could answer. When she returned she delivered an extremely lengthy and reasoned reply as to how and why she had spoken to CW1. X’s evidence continued in much the same way; there was very little of the hesitation that had been the hallmark of how she’d responded when F was in court. Shortly before 15.30 it was necessary for X, a diabetic, to check her sugar levels. Her responses to the last few questions asked of her by Miss Morgan were difficult for X. She said she was thinking about whether she was “allowed to answer.” X was slapping her knees and then said, “I really want to talk myself into it. Then she said, “No – I never gave CW1 a name that was false.”

Ms Giz cross examined for a little less than an hour. She started at 15.35; I brought the exercise to an end at about 16.25. At first X responded easily to the questions asked of her. After about half an hour (16.05) she checked her insulin levels again. When Ms Giz asked about F’s “inappropriate behaviour” X was immediately and obviously in a state of considerable distress. She protested that she had “never said he did something he should not have done.” It was “wrong”, said X, to suggest she had ever said that.

Then there was a period in which Ms Mason endeavoured to assist X by using a white board when answering questions as to where “it had happened.” X became again very, very distressed. She was slapping her hands against her feet, her knees drawn up under her chin, her face turned away. A couple of times, X said she “just wanted to get this over with”. I asked her if she was having trouble in answering because of “the promise” as mentioned by her to Dr B. X replied, “Yes, that was the reason… you weren’t allowed to talk about something …. Lots of little things, put them together, then that’s just as bad as if I said it in the first place. Can’t go any further.”

At that point, I decided that it would have been inhuman to have required X to return for a third day. Ms Giz sought to persuade me I was being unfair in curtailing her cross examination, saying she had had insufficient opportunity to confront X with the suggestion that her allegations were false. She also referred to the length of time spent by Miss Morgan in chief suggesting there had been a disproportionate time in which X had been allowed to present her case whereas she had been permitted less than an hour.

I held to my original decision, balancing on the one hand F’s expectation that his Counsel might have been permitted to cross examine fully against the responsibility I had to ensure X’s wellbeing and protect her from further harm. I continue to believe the right balance was struck. I’ve never before encountered a witness in such evident and recurring distress. By Wednesday at about 16.00 she was clearly exhausted. Ms Mason was obviously worried about her. X was making clear she just wanted the process to be at an end. I could not countenance requiring her to return for a third day.

The F’s broad position in response to the information surrounding X’s claims is one of complete and utter denial. In the written statement he prepared in mid June this year, so a fortnight before the hearing began, he said he was unable to state “firmly enough that these allegations are false. They are malicious and vile. His first thought had been that the M was “somehow behind them.” He referred to the long history of false allegations made against him and said he “still had trouble believing that X decided to make these false allegations … under her own volition.” There is, said F, “more to the motive than mere attention seeking. Otherwise it just doesn’t make any sense.” He reiterated a theme of his which appears several times within the papers, namely that he feels a “full and proper police investigation is the only way to clear (his) name.”

A little later in his written statement, F maintains that the fact X has made these allegations “shows in a very clear and dramatic way the dangers of child alienation; and the long term emotional harm that occurs to children who are brought up in a poisonous environment.”

When he gave his oral evidence, F cried piteously as he said that listening to “some poor little girl, saying that about (him) for reasons (he) does not know” was the “hardest thing (he) had ever had to do.” He was, he said, “Sitting there and praying she would tell the truth.” He has not “touched that girl.”

F said he does not now believe X was coerced to make her allegations although he did at first. Although he has theories and ideas, he “honestly does not know why” she has said what she has. He does now recognise that M was not behind the allegations.

Asked to explain some of his theories and ideas, F stated that X’s relationship with her mother and the family dynamics “quite clearly” have something to do with it. He thought it “quite interesting” that some three months before X had made her allegations against him there is a reference in X’s medical records to her being “punished” by her mother. It sounded, he said, as “if she was working up to something.” F also referred to X’s family history, issues of self worth and feeling worthless. Again he cried pitifully as he said this was “just a theory because (he) doesn’t know. He was, he said, “someone in her past life. Someone she thought she’d never have contact with again.”

F said several times, and on every occasion he was weeping as he did so, that he is “baffled” by the claims, has “no idea” why they’ve been made and asks “Why me?” There is so much he cannot explain. F said, “The whole thing baffles me… Why the f*** me?” and as he did so he was crying, breathing deeply and exhaling audibly through his mouth.

In relation to her state of mind, F said, “she’s obviously a deeply troubled young lady. She has worried or thought herself into a wheelchair. This allegation is just as much a symptom of her being in a wheelchair as everything else. God knows why she has done it.”

When I gave F the opportunity to say anything else when cross examination had finished, he said he had “been through hell these past three years.” He emphasised he “didn’t have to be here; did not have to face the allegations. Everything about this is about (his) little girl, so she can know the truth.” F again mentioned the police saying their involvement “would clear (his) name because they would investigate.” He prays that I have the wisdom to solve it.

In his final submissions, F began by expressing his exasperation with M in relation to his contact with A saying that whatever the outcome he did not believe he would be allowed to see his daughter. He referred to the evidence of M’s and X’s family, the changed narrative as to when he could have had the opportunity to be alone with X and suggested that M’s evidence was both implausible and absurd.

F suggested M and X’s mother had discussed the ‘hot topic’ of X’s allegations so as to ensure their stories have coincided as they have. He also suggested X had not wanted to be here but had been pressured into participating by her aunt, citing a written record from September 2010 from which it appears that X, the “suspected alleged victim” had been refusing to talk with M.

F referred to the way in which X gave her evidence and contrasted her halting style with the “fluid” accounts given to PDH. He, like Mr Storey, drew my attention to X’s initial and repeated account of having caught him having an affair with another woman – the incident which, so she originally said, was bound up with how he had started to abuse her. Now, says F, X has “turned that around” which must support his claim that her allegations are false.

F also submitted that X’s story is vague as to dates, times and places. He suggests she has been “deliberately vague” and that “various QCs involved in this case” have said, outside court, X’s allegations have “no forensic value.”

In relation to motivation, F said it was “very easy to seek proof rather that seek truth”; and it was similarly very easy to sympathise with X because of her physical and psychological conditions. He said the family does not like him, referred to what he described as M’s “character assassination” of him when she gave evidence and suggested that is a contributory factor as to why he has been accused.

Finally, F tearfully said that this has been a “horribly painful experience” and that “only a psychiatrist can answer” as to why X has made her claims. He reminded me I would be making a decision which would affect his and his daughter’s lives forever and said he did not feel he had been capably represented because he had been doing it himself. I reminded him of what he had said in his written statement, namely that he would be “relying heavily on Mr Story (sic) and his team … to use the information (F) could supply … (so that) the truth (should) come out.” I asked F if he believed Mr Storey and Ms Habboo had undertaken their task fairly and impartially so as to assist the investigation. He replied that his answer “depended on the outcome”. Asked again, he said he could not answer.

In her final submissions, M stressed that her only objective is to ascertain the truth; and that whereas she had always tended to believe X, she had acknowledged they might not be true. M said she had come into the hearing with a number of outstanding questions and with an open mind. Now she has heard the evidence, most of her questions have been answered so that now she very clearly believes that X was sexually abused by F. M invites me to make findings so that A may be adequately protected from what are, in her mind, very clear risks to her safety.

M made a number of detailed submissions arising out of the evidence – the importance as she sees it to be attached to particular elements of what X said; the manner in which she gave her evidence; the impact upon X of having said what she did, subsisting right up to the present time; and the emotional impact upon M herself of being involved in the process.

Referring to one of Mr Storey’s ‘factors against’ points, namely that F has pursued disclosure and participated at this hearing when he did not need to do so, M submits F did not have much to lose. By contrast, says M, X has nothing to gain by making these allegations. She invites me to believe X.

Miss Morgan’s Closing Submissions were reduced to writing and therefore require no recital here. She developed certain elements orally, emphasising that X herself seeks no findings whereas she and X’s solicitor submit on her behalf that I should and can accept as essentially truthful the central core of her evidence.

On behalf of Z County Council, Mr Twomey who could not be at court on 9^th July, the second day of submissions, relayed some observations – via an email sent by Martha Cover. Ms Cover had been due to take Mr Twomey’s place for judgment which was scheduled for 14.00 on 11^th July. The email was sent at 10.57 on 11^th July.

One of Mr Twomey’s observations was in these terms – “The private exchanges between the intermediary and the complainant may be relevant to the findings and to the credibility of the complainant. It is possible that the complainant changed or retracted some of the evidence she gave when speaking to the intermediary, or expanded upon it.” He emphasised that the local authority was entirely neutral on the issue of findings but wished to comment because of “the need to protect the father’s right to a fair trial.”

In those circumstances, accepting as I did the thrust of Mr Twomey’s suggestions, judgment was delayed until today, Monday 15^th July, so that a further question might be asked of Ms Mason. I approved the draft on Thursday afternoon. It was sent by email and a preliminary answer received at 17.13 that afternoon. It should be noted that Ms Mason was travelling to the north of the country when initial inquiries were made of her. A very close relative had fallen ill, was in hospital and she was on her way to be with him. In the circumstances, Ms Mason’s willingness to assist was exceedingly generous. That she was able to do so with such expedition was remarkable.

Her answer to the question about the content of the private exchanges and whether X had “changed, retracted or expanded” on her oral evidence was as follows – “That’s an easy one to answer. No – our discussion was more a case of who was going to say what, and what questions she would like asked so that she would be able to answer. She told me that because of “the promise” there were things I could say but she couldn’t …. As I recall she told the court everything she could. She was worried that she had said too much and had broken the promise, hence her anxiety state. But didn’t say which bit had broken the promise. I didn’t want to talk in open court about the promise, as I thought that would be verging on evidence. As an intermediary, I could only comment on her emotional and physical state, and her communication.”

Overnight, Ms Mason thought about whether she had anything to add and sent this email at 10.12 on 12^th July – “I have pondered this overnight and I don’t have anything further to add. I confirm that the discussion we had was about HOW she could present her evidence, rather than what evidence she could or could not give.”

Thus Mr Twomey’s properly raised question has received a complete and entirely satisfactory answer. I am able to conclude on the basis of an unequivocal indication from Ms Mason that there were no changes, retractions or expansions of X’s evidence during her private discussions with Ms Mason.

Though it is easy to be wise after the event, I wish I had invited Ms Mason into court at the end of the day on 3^rd July and asked her the question she received 8 days later. Had I done so, judgment would have been given on Thursday last week rather than today. The parties would have been spared another weekend without a conclusion.

Mr Storey QC and Ms Habboo, if they will permit me to say so, have attended to the truly impartial, inquisitorial role required of them in the most committed and dutiful fashion. Mr Storey has properly probed the evidence, ensuring so far as possible that all avenues have been appropriately explored. He was unable to cross examine X because I halted the process when I did but made no complaint, seemingly content with my decision to spare X the ordeal of a third day of evidence.

The Skeleton Submissions on behalf of the Children’s Guardian comprise an analysis of the various parts of the evidence which would support the making of findings and then, in more or less equal measure, those which do not. Mr Storey developed those themes when making his oral submissions in a particularly even-handed way, considering the two potentials and saying each was open to me on the evidence. He suggested that in the final analysis, the outcome may depend upon my assessment of the evidence, the demeanour and reactions to questions of X on the one hand and F on the other.

F does not have to prove anything. It is my task to consider what X has alleged against him as well as her indications, at times, that she had lied and to come to an overall conclusion as to the truth of events. As the result of the Supreme Court’s decision in Re B [2008] UKHL 35 the standard of proof in finding the facts necessary to establish any factual issue in the case is the simple balance of probabilities, nothing more and nothing less. Neither the seriousness of the allegation nor the seriousness of the consequences should make any difference to the standard of proof in determining the facts. In our legal system if a judge finds it more likely than not that something did take place, then it is treated as having taken place. If he finds it more likely than not that it did not take place, then it is treated as not having taken place. He has to find for one side or the other. He is not allowed to sit on the fence. Sometimes the burden of proof will come to the rescue: the party with the burden of showing that something took place will not have satisfied him that it did. But generally speaking a judge is able to make up his mind where the truth lies without needing to rely upon the burden of proof.

When considering issues of credibility, I remind myself that there are many reasons why a person in proceedings such as these might lie. They may do so for a whole host of motives. Not necessarily because they are culpable but, for example, to protect someone else; or they may lie in an attempt to bolster up a just cause, or out of shame or out of a wish to conceal disgraceful behaviour from their family. The mere fact that a potential perpetrator lies is not in itself evidence of guilt. It would almost never in this situation be sufficient evidence of culpability to establish that someone had lied. It is an altogether more subtle and delicate process than that.

At the end of this lengthy hearing, I find myself in no doubt as to the outcome. I have no hesitation in deciding that X’s claims against F are fundamentally true; that however he began his despicable behaviour he did indeed inflict the most serious kind of sexual, emotional and psychological abuse upon her over a period of about 10 years; and that, even now, he continues to exert some form of sinister controlling influence so that X cannot freely speak about what has happened. Indeed, one of the most perturbing elements of all centres upon the extent to which X’s free will would appear to have been overborne insofar as relating the narrative of what F has done. In similar vein, I am particularly troubled by X’s view which is that she bears at least some responsibility for what was done to her.

I turn now to consider the various critical considerations which have impelled me to find as I have and to reject the F’s vehement denials, entirely accepting as I do that no one feature here, on its own, is diagnostic of sexual abuse. The exercise for me is, as it would always be, a matter of weighing a whole range of factors. Some may assist more than others in arriving at an overall conclusion and it is to those that I now turn.

The first matter for discussion is the manner in which X’s allegations were originally made, the quality of the record keeping and also the integrity of those responsible for compiling the key documentation. Each of the individuals to whom X spoke of her ordeals was a professional with experience and training in child protection. The first recipient, PDH, was the Deputy Child Protection Officer at the school who said in evidence that she has had the three levels of child protection training. She explained she would have to tell any complainant that confidentiality could not be promised; that speaking freely is encouraged; that she would try to write down the information and then pass it on.

PDH produced the handwritten notes made at the time of X’s initial revelation. Many of the phrases were within quotation marks, denoting X’s direct speech; and there were also comments, for the most part in square brackets or boxes, descriptive of X’s affect. For example, “emotional, shaking, picking at hands” and “child-like responses.”

CW1, the recipient of X’s second substantial disclosure of information, held a position of considerable responsibility within the organisation and was directly responsible for some 50 young people aged between 10 and 18. CW1 referred to the “very clear protocols and very lengthy handbook” which applied in a situation like this. She said she had been trained by the NSPCC, “to listen, to be non judgmental and to offer support.” She had initially “sat and listened”; she remembered “long silences”; she did not remember asking direct questions other than those mentioned (designed to establish whether or not she might have been dealing with a teenage pregnancy).

The social worker and police officer who undertook inquiries in October and November 2009, similarly, were well-versed and trained in child protection. Their records, carefully made, are significant additions to the documents from both the school and the voluntary organisation.

There is a cohesive body of information – a documentary trail from a variety of reliable sources as to what was said. Of itself that is of considerable evidential importance. On even the most cursory analysis the detail derived from that material strongly supports the notion that X’s account is truthful rather than fabricated.

I turn then from the records themselves to consider what I was told about X’s demeanour. PDH said that when on 1^st October 2009, X had initially made her disclosure she had been picking at her hands, constantly scratching and appeared very nervous. The conversation had been populated with long pauses. When she started to talk about the details of the abuse, X “was very fluid, she just spoke… She was actually quite calm.” She had been looking down and her eyes appeared almost fixed. She continued to pick at her hands, appeared very emotional and was shaking. Her whole persona, said PDH, changed. It was as though someone was talking through her. She appeared to be in an almost trance like state.

In her written statement, CW1 described X’s presentation during the discussion they’d had on 8^th October. She said X had been withdrawn, quiet and difficult to engage in conversation. She made no eye contact and at points she had seemed scared. During her oral evidence, CW1 was asked about X’s presentation at the time of the January and February 2010 conversations. She replied that X had been “staring at the floor. There was no eye contact. Sometimes she would just shake her head. On a couple of occasions, “she would cry.”

Speaking about the meeting at the school on 5^th October 2009, the HSF said there had been a “very uncomfortable atmosphere” and that at the point when X had said she was lying there had been a marked change in her demeanour. “Her voice had changed; it was as if someone else was speaking…. The change in her voice had been significant.”

Of the meeting on 6^th October, after the referral to Social Services, X had said she was scared though not identifying the cause. At the end of the session, X appeared to be “in a trance. She seemed completely switched off – not connecting with us at all. There seemed to be no way out for her. She wanted to deal with it herself and would not say much more.”

I pause to relate what X contributed in evidence about her discussions with her teachers during October 2009, as relayed by Ms Mason. She reported X as having said the meetings had been “Very difficult. X had spent 10 years blocking it all out. The only way she had been able to say anything (at the time) was to speak as if she had been the younger X.”

Both the social worker and police officer said that when talking about neutral topics, X had been looking at and engaging with them. But when she spoke about her disclosures, eye contact had ceased, she had been fiddling with her hands and did not engage. She had presented very well when discussing general matters but it was completely different when talking about her uncle – she “froze”.

On their own, those accounts of a young woman whose presentation varied markedly so that she was able to interact normally when discussing ordinary subjects but became so distressed, inhibited and troubled when describing the allegations of abuse is an indicator which powerfully supports the likelihood that the accounts of abuse are true. There was an emotional congruence between her demeanour, as described, and the subject matter under discussion. But in addition to what I have heard and read others say about X’s affect, I have had the opportunity to assess it for myself.

Turning to X’s presentation during her evidence, I should say at once that I have never before witnessed anyone of any age demonstrate such emotional turmoil and distress whilst participating in a court hearing. If one phrase encapsulates the whole experience, it is that watching and listening to X was harrowing in the extreme.

There were many, many occasions when the question asked of X elicited an immediate physical response denoting obvious anguish. At times she would turn her head away, or put her hands over her face, or bury her head on her knees, or put her hands behind her neck angling her face down towards her lap. On one occasion, when asked whether F had had sex with her in a car, X’s torso shifted suddenly sideways in her wheelchair as she said “I can’t...”

Perhaps the most worrying manifestation of X’s emotional turmoil was the extent to which she would hit, drum or slap some part of her body with her hands as she did on a few occasions, notably when Ms Giz asked her to identify the location where sexual activity occurred and also when X was asked whether what she had said to her teachers about being licked, touched and having had sex was true.

By contrast, when asked about her work with the charity, as I’ve already said, X was extremely chatty. It was as if she did not have a care in the world. She went from being extremely hesitant, almost tormented, in her responses to being bubbly and forthcoming. She provided a wealth of information and did so extremely articulately and with some humour.

Thus I had the advantage of witnessing for myself the dramatic way in which X’s demeanour and affect will change according to the subject matter under discussion. The same had been reported by Dr B, particularly when she discussed with X her long term flashback experiences. Dr B reports that through much of their discussion X “trembled and was substantially unresponsive to questions, volunteering only minimal confirmatory signs. She was unable to elaborate at all in answer to questions.”

X’s emotional arousal when confronting questions about child sexual abuse is a substantial factor which tends to validate her allegations. There was no hint or indication that her reactions were anything other than genuine. Indeed, it appeared to me she had no real ability to control them still less manufacture a performance. What I witnessed, I am quite sure, was utterly authentic.

The extraordinary nature of some parts of the accounts given by X merits mention because it is so curious, only partially understood and, in my view, could not have been invented. During her initial discussions with PDH she talked about “the deal”, “punishment until she felt pain” and that she “deserved to be punished.”

In evidence, X spoke of the “mistake” she had made but was unable to explain further. She went on, “I should never have said it, I know that. I don’t want to talk about this. I don’t want to talk about the mistake which wasn’t my mistake.” She was very distressed at that point and there was an interruption so that Ms Mason could try to assist her. When the link was resumed, Ms Mason related X as having said this – she does not want to talk about the thing she’s being punished for because she believes that is ‘over the line’ and she may already have strayed over it. Ms Mason reported X’s direct speech as, “It’s not just that I’m not allowed to say, I can’t even think about it. It’s as if I’m about to explode. It’s just that one thing.”

When Dr B interviewed X, she had said, “Saying it or writing it down” is not something “I am allowed to do.” Pausing slightly, she added, “it’s complicated.” Dr B asked her whether something bad would happen and she nodded yes. Dr B asked her whether to her or someone else. X said either or both. Dr B inquired as to whether the prohibition came from her abuser and in reply X said, “I made a promise and you don’t break promises.”

Thus there are aspects of X’s accounts which are both impossible for an outsider to fully comprehend and also, paradoxically, increase the validity of her allegations. I have no doubt that X remains in the thrall of F, that by some means he still has the power to control what she says. The weirdness of what she has said about ‘deals’, ‘punishment’ and ‘promises’ is a factor which militates heavily against this being a false allegation. Likewise her florid reaction to the news that F had turned to try to see her face whilst she was giving evidence.

The content and constancy of X’s evidence is also highly material. Notwithstanding her difficulties in answering questions, she did so. It was never necessary, notwithstanding the earlier indications, to make a witness summons against her. She responded favourably to the contents of my June judgment. Though wrestling with so many of the questions asked of her, she never wavered. As she confirmed early on, she did tell her teachers what she was recorded as having said on 1^st October 2009 and “Yes, it was true.”

Much later, X was asked whether she had ever given CW1 a name for her abuser which was not true. She replied “No.”

There was no ambiguity or lack of clarity as to what X alleged and against whom. All of the discussion, at whatever stage, has been about F. No one else has featured.

Next I turn to consider what is known about X’s character because of its obvious relevance to whether or not she should be seen as a truthful informant. Had there been a trail of her telling lies so as to get others into trouble or of making malicious allegations for her own gain it would have been very important in this evaluation.

As it is, there is a consistent body of material attesting to X’s honesty, altruism and integrity from professionals who knew her well, over a period of years, and thus are in the best position to arrive at judgments. To take but a few examples – PDH said X was both articulate and intelligent with no track record for untruthfulness or spitefulness towards other girls. Her HT said X was not untruthful or a troublemaker although when ambulances had to be called because she had fainted in class that would be creative of trouble.

Most tellingly of all, CW1 said X was “clearly very intelligent, participated fully in the work of the organisation, was very caring and quite nurturing towards younger children as well as those with special needs.” CW2 said X was very intelligent and had done well within the organisation. She had been able to give “very good and careful leadership without imposing upon the younger members” and “no, she had not been an attention seeker”.

X was very concerned when she took the oath at the beginning of her evidence about the avowal she would tell “the whole truth” because she feared that in some respects she might not be able to do so. Her innermost struggle when confronted with questions about truth and lies was apparent for all to see. X impressed me as a young woman of the utmost integrity who lives by a strong moral code.

Now I turn to consider the inter-related issue of X’s motivation and the possibility that she may have been influenced by bad feeling within her own and M’s household to make a false allegation.

As to that possibility, it is of significance to relate what X had to say about A’s relationship with F and the risk, if any, which in her view he poses to his daughter. X said this, “I have been fairly clear all along. I have no reason to believe he has hurt A. I have also said – at various points – that I don’t want A to stop seeing her father. That’s not a primary outcome.” A little later, X said this – “Of course I’ve thought about the consequences (if the court believes the allegations I’ve made) … I don’t know how my aunt feels because I’m not her. From my experience she has an extremely loving relationship with her own father. She knows very well the benefits of having a loving, supportive father or father figure in a child’s life. But equally, I’m sure she’s concerned, as any parent would be about potential danger for her child. The risk assessment is impossible for her to make which is why we’re here.”

I pause to observe those are observations which reveal X’s well-developed insight, maturity and a heightened degree of emotional intelligence.

X said, and M subsequently confirmed, that there had been one meeting between them in 2010 when her aunt had come to the house which X shares with her parents. She said they “had been alone in a room.” M had told X she knew it was her. M had said she “was very sorry.” She had asked X if it was true. X had been “quite shocked” and could not say what exactly was discussed. She could not remember. She did not believe her aunt had talked about the detail. M had said, “Thank you for doing this … for protecting A. I know you want to protect A.” M had asked X to consider making things more formal by making a statement but, as we know, she did not.

Asked by Ms Giz as to whether there had been other occasions when they had discussed the allegations, X said she “honestly couldn’t recall a subsequent occasion” when they had directly spoken about it.

During her evidence, M said she gone to X’s family home and took the opportunity to speak with her on her own. She had said the local authority had accidentally released information identifying her. X had been “very shocked, she was shaking.” M had said, “Please just tell me if it’s true.” X had looked at her and said, “Yes – why on earth would I make it up?” M had said she was “very, very sorry.” She felt a degree of guilt because she had brought F into X’s life.

Though it was certainly the case that since their separation and divorce there has been a high degree of acrimonious conflict between M and F in relation to his contact with A, there is no support for the hypothesis that by some means or another X was inveigled into making false allegations against him. Those cited passages of X’s and M’s evidence seemed to me to accurately and faithfully relate the sequence of events. Moreover they are amply borne out by the extant records from Z County Council.

I reject the suggestion that X’s allegations arose out of ill-feeling or because M lived in X’s family home for a period after the parental separation or indeed because F lives on the other side of the world thus he may be an easy target. X has had nothing whatever to gain by making and pursuing her allegations. Indeed, as I now go on to consider, the cost to her of so doing has been considerable.

The physical, emotional and psychological impact upon X of participating in this hearing and also in the very many legal stages necessary to get to this point cannot be over-stated. The reports of Dr W and Dr B identify in the clearest way possible just what an ordeal all of this has been for X. I described the anticipated situation between paragraphs 26 and 28 of my 17^th June judgment.

I have said enough already about X’s presentation when giving evidence for it to be clear that the two days of her evidence, in all probability, were amongst the most difficult she has ever lived through. Her mother said in evidence X had not gone home last weekend because she was fearful of F who knows their address; and thus she had decided not to be there.

One of Mr Storey’s pointers against the making of findings is that the allegations of abuse are vague. He suggests there is a lack of sensory or contextual detail, an absence of specificity around timing, location and as to what actually happened in terms of abuse. In relation to those assertions, I remind myself of the enormous problems encountered by X in saying as much as she did and her evidence as to the prohibitions to which she is subject in giving small pieces of information lest they might be put together. Those matters described in detail within the psychiatric reports, added to by X in evidence, seem to me to provide a complete answer as to why, generally, there is a lack of detail.

There is though some extremely significant, almost peripheral, material linking F to X and in ways that maybe would not have been expected. In her discussion with CW1 in February 2010, X was asked if she had kept any communication from F. She is reported as having said “she deleted his texts straight away.” In response to a question about any mobile number she might have had for him, X said “it changes … she just replies to the number he texts her on.”

In his written statement of mid June 2013, F described his use of ‘phones in the period since he left the UK in 2003. He said, “I have since used ‘pay as you go’ SIM cards … My phone number has changed several times since then as the SIM cards expire and run out of credit when I am out of the country.” In his oral evidence, he sought to retract that written account, realising doubtless how damaging it might be. Asked about the relevant passage within his statement, at first F sought to deflect the question. He referred to his suggestion in April that his ‘phone records be checked. Brought back to the coincidence of his account compared with that given by X, all he could say was that he was “very surprised.” He agreed with Mr Storey that it was “extraordinary, bloody extraordinary.” F continued to protest, notwithstanding his written account, that he had only ever had three numbers; and in his final submissions he blamed “poor wording,” again claiming he only ever had three numbers.

I did not believe him at all. “Poor wording” does not come anywhere close as an explanation. The truth surely is as X described it, his number changed; and F himself provided the critical rationalisation as to why that should be – ‘pay as you go’ SIM cards which run out of credit when he is away from the UK. He lied, I am sure, and it was a very important lie. He was careless, maybe not quite smart enough to be on his guard, as to that significant part of the evidence when he wrote his statement.

There is then the material supplied by CW1 as to what X told her about her uncle’s view of her going to University. On 28^th January 2010, X said “she was worried that she had had an argument with him where he had told her not to go to University. She had originally agreed with him but … then told him she had changed her mind. Since then she has not heard from him.” Asked about that by Mr Storey, F said, “The conversation never happened. I’ve had no contact. I’ve no idea why she’s done that. That’s what’s so diabolical! Bloody hell! This has not happened.” On his case, there had been no contact of any kind between him and X for more than six years from about August or September 2003 and February 2010. On that occasion, as the result of a text message from M, he had dropped A off at X’s family home after contact. According to F’s evidence, X and her sister who had been in the driveway, had ignored him.

On their own, these are small nuggets of evidence which would not be probative of much but, when taken together with everything else X has been able to say, they assume a far greater significance. They are useful instances of X having supplied seemingly inconsequential details and of F being shown to have lied. They provide a valuable insight into F’s willingness to say whatever he sees as necessary to cover his tracks.

I turn then to consider what has been described by Mr Storey as the ‘trigger event’. It is the rationale provided by X at the outset as to why her uncle began to abuse her. Her accounts included information which directly impinged upon M, in that X maintained she’d told her about the affair. Mr Storey points out that this aspect of what X had alleged to her teachers, the police and social services cannot be true. M’s position statements and evidence do not support X’s accounts either in relation to being told of any infidelity or that F would regularly ‘babysit’ X and her sister.

M confirmed in evidence that X had never told her about any affair. Asked by F to confirm that he had never supervised the three children, M said she could recall an occasion shortly after A’s birth when she and her sister had gone shopping to Tesco’s leaving the children with him. At that point, F became emotionally aroused, saying to M, “You’re a liar and you’re stitching me up… You’re stitching me up!”

In evidence, X said she could not be “100% sure” if she had told her teachers her uncle had had an affair. She went on, “I did not say that directly to them. No, I did not tell them I’d told my aunt about the affair. It was about what would happen if I did tell my aunt, not that I did. I told them what I was told would happen.” Asked whether she had lied about her sister and her being ‘babysat’ by F, X said she was not sure she would have used that term but “No, (she) wasn’t lying about it. ‘Supervised’ would be a better word than ‘babysat.’”

So what is to be made of this aspect of the case? Because some parts of what X is recorded as having said cannot be verified as true, would it be safe to reject the entirety of her account? I do not believe it would and for these reasons – it’s by no means uncommon for aspects of what a complainant has alleged to be demonstrated as inaccurate or just plain wrong. It is rare for every last detail to be verifiable in all respects. More important than the minutiae of what has been described is the overall impression created by the extant material taken together with an assessment of the oral evidence. The memory of the complainant may be faulty when relating events which occurred many years previously. X at 17 ½ was giving a description of the situation as it had unfolded almost 10 years previously. It may have been troublesome for her to differentiate between what F had told her about the consequences of telling her aunt and what she herself did.

I turn then to consider the opportunities for F to have had unsupervised contact with X both during the currency of his marriage with M and subsequently. There is no dispute as to the fact that F was at home, whilst M was working in London, between about August 2000 and May 2003 when he returned to live in Australia. X was 8 in 2000 and 11 in 2003. F’s time was his own, as he accepted in evidence; he would play golf with M’s parents, so M said, on a couple of occasions a week. He accepted that in the early days of the marriage he and M had had “quite a lot of contact with X’s family.” He had the use of M’s car at first and later she bought him a soft topped two-seater sports car. There were two occasions when the two couples together with X and her sister went on holiday together.

X’s mother gave written evidence about two occasions when F looked after X and her sister. In relation to each, F’s initial reaction was outright denial – “it never happened” though when pressed he ultimately accepted in relation to the first that it could have occurred though “logic would suggest” it did not. Interestingly, when X’s mother gave evidence she mentioned, almost in passing, that when F acquired his sports car he had taken each of her daughters in turn out for a short drive.

It is the fact that from a young age X would be responsible for getting herself home after school and following after school activities. Her mother could not quite remember exactly how old she had been but said X “certainly did come home on her own in Year 6 (age 10 – 11) though not when she was in Year 5.” She said that sometimes she couldn’t pick X up after choir. X had a house key, said her mother, from a young age and a mobile ‘phone from when she was 10, so before the separation before M and F.

As the chronology amended by M reveals, and there is no disagreement as to this, after 2003 F would come to this country for two reasonably extensive periods each year, normally in February and again during the summer months.

There were, as I find, many occasions when it would have been altogether straightforward for F to have been in contact with X in the way she described both before and after the parental separation. Likewise, he had the opportunity to send her text messages with suggested meeting times and places, to have taken her off in a hire car to some secluded place and for him to have sexually abused her.

The key to an understanding of X’s retractions is that on those occasions when there has been the potential for her allegations to be placed on a more formal footing, by the involvement for example of social services and the police, X has sought to deny or withdraw her account. When she did so in early October 2009, she said she’d lied because she was bored. By no stretch of the imagination was that a credible explanation. It was nothing more than an attempt at keeping the authorities at bay.

I should not have been surprised had X been unable to maintain her allegations in the court environment. There would always have been the potential for a retraction; and F obviously believed and hoped X may have been on the verge of denying his involvement when he turned to look at the screen mid way through the morning on Wednesday 3^rd July. As it turned out, X maintained her core complaint throughout. Miss Morgan led her through a very lengthy exploration of whether her central allegations were true or not. X adhered to her claims.

I turn next to consider X’s troubled childhood and whether the history as documented should cause me to conclude that the allegations are more likely to be false than true. Mr Storey drew my attention to seven explicit events charting the problems for X in her relationship with her mother, in particular, from about 2005 when she was 13 years old.

In June 2009, so three / four months before her the initial revelations at school, X was admitted to hospital. She “disclosed she was under a lot of stress” and did “not know how to make it stop.” She was not explicit but suggested there were problems in her relationships with her parents, especially her mother, that she would be punished and that it was “similar to sexual abuse.”

I pause to observe that in nothing X has said to anyone since, has there been any hint of sexual impropriety as between her and her mother or, indeed, her father. My sense is that by the summer of 2009, X was in a state of considerable anxiety as to what she should do about revealing what F had done. She was close to telling someone, hinting about ‘sexual abuse’ though unprepared then to identify the reality or name the perpetrator.

Dr W said this in her report of January 2012 – “X presents with a long history of medically unexplained physical symptoms. In my opinion, these are likely to be a ‘somatised’ (physical) expression of emotional distress. Her episodes of medically unexplained symptoms appear to have coincided with adverse events and periods of significant stress. In particular, there appears to be a temporal relationship between the onset of her early physical symptoms (in the form of collapses or ‘non epileptic attacks’) and the start of the alleged sexual abuse…. It is possible to see an established pattern of repeated medical presentations from the age of 8 years onwards with non specific symptoms, often of a dramatic nature, for which no physical cause has been found. While not all presentations of medically unexplained symptoms have an underlying psychological cause, research studies suggest this is likely in about 30% of patients presenting in this way. A pattern of repeated presentations makes this more likely. One psychological perspective is that physical symptoms can be an alternative ‘language of distress’ i.e. a way to access care when more adaptive and overt means … are not possible. In the case of X she was unable to disclose the alleged abuse because of threats to her sister and for fear of the consequences. In addition, the family culture is not one which seems particularly encouraging of overt expressions of emotion.”

Dr W, self evidently, was offering her opinion on the basis of her involvement with X and a long time in advance of this hearing. The purpose of her report was to inform the court’s decision as to whether X’s social services’ records should be disclosed. Nonetheless, her view as to the causes of X’s medically unexplained symptoms is relevant and merits consideration.

X’s complex medical problems have their origins in what F started to do to her when she was only 8. I emphatically reject the suggestion that the allegations originated out of X’s relationship difficulties with her parents.

I have said enough already about F’s evidence for it to be obvious that his denials were presented in a highly emotional fashion. At times his language was colourful but that was neither here nor there, so far as I was concerned.

More relevant, were some of the subtle signs as to how he views this court process. Of his participation in the Court of Appeal hearing, McFarlane LJ said this, “The father despite the limits of a telephone link, was readily able to communicate his frustration to the court. He has not seen his daughter for three years. He has been accused of being a paedophile, yet not told by whom or what the allegations are. He has been given no chance to prove his innocence. He regards the whole process as a ‘farce’”.

At the hearing on 12^th June when I was considering whether X should give evidence, again via a telephone link, F initially indicated it was only “50:50” that he would attend this hearing. He said, “At the moment, I’ll be there but I’d like A to be made available for contact. If I can’t see her, there will be no point in coming over and proving my innocence.”

On several occasions both in writing and during his evidence, F has made it abundantly plain that he has scant regard for this process. He feels a “full and proper police investigation” is the only way to clear his name. His attitude towards the court is on the one hand seemingly respectful – more often than not he’s addressed me as ‘Ma’am’ – but on the other he is dismissive, particularly should the outcome be adverse to him. I thought his response to my question about Mr Storey’s role and F’s appreciation of it very telling. If the outcome is as he would wish, F’s view of the fairness he has been accorded will be favourable. If not, then as M has said, he will probably return to Australia saying he’s been subjected to a ‘kangaroo court.’

At the end of it all, I have no hesitation in rejecting his denials. I am sure his protestations of innocence were lies; and it is interesting to note that even he, by a throwaway remark at the very end of his evidence, realised how unlikely it was that he rather than X would be believed. He said, “If by some miracle” the allegations are found to be false then he would like M to give him a few thousand pounds so that he might stay here for a few weeks and take A on holiday.”

No one other than F can identify the real reason why he began to sexually abuse X when he did; and it’s no part of my task to speculate as to his motivation, the distortions in his functioning or the impulses which led him to act as he did. One thing though, I should emphasise – X bears no responsibility whatever for what happened. She is blameless. Nothing she did or said could ever conceivably justify what was done to her.

X is a young woman who, by her participation at this hearing, has demonstrated immense courage.

My hope is that now these proceedings are at an end, so far as she is concerned, X’s life will develop in ways which she might not have thought possible. This should be the beginning of a new chapter for her in which by a process of gradual re-adjustment she begins to understand the realities of her own innocence and the scale of F’s culpability.