Y v W & Z (Rev 1)

In this matter I am concerned with the welfare of Z, born on 9 March 2013, aged three years-old. The mother of Z is W, a citizen of a Member State of the EU. The father of Z is Y. Z is a party to these proceedings and is represented through a Children’s Guardian. At present the father has supervised contact with Z at a contact centre.

The substantive applications before the Court comprise an application by the father for a Child Arrangements Order and Prohibited Steps Order in respect of Z, issued on 18 September 2014 and an application by the mother for a Child Arrangements Order and an Order permitting her to remove Z temporarily from the jurisdiction.

On the first day of this hearing I dismissed an application by the father for permission to withdraw his applications in respect of Z. My reasons for dismissing that application are set out in a separate ex tempore judgment given on that date. In short, I was not satisfied that it was in Z’s best interests to permit the father to withdraw his application in respect of his child.

That decision was taken within the context of this matter having been listed this week for a finding of fact hearing to determine the truth or otherwise of an allegation against the father that is relevant to his applications before the Court. In summary, that allegation is that in 2000 the father perpetrated sexual abuse against X, the five-year-old daughter of the father’s then partner, N. The father is not the father of X.

The father vehemently denies being the perpetrator of the sexual abuse endured by X, although, as I have said, immediately prior to the hearing listed to determine the truth or otherwise of that allegation, and immediately after the receipt of the expert report of Dr Rogstad (Consultant Physician and Honorary Senior Lecturer in Genitourinary Medicine) which I shall come to, the father sought to withdraw his application and to seek no orders in respect of Z, notwithstanding that he has been pressing for the same for well over a year.

I have at this hearing had the benefit of statements, and heard oral evidence from N (by video link), the father and the mother. I have had the benefit of seeing the transcript of the video interview of X.

In circumstances where X was aged five at the time of the alleged sexual abuse sixteen years ago, in circumstances where she did not speak about abuse in her ABE video interview and in circumstances where all parties accept that she was the victim of sexual abuse, no party sought her attendance for cross-examination. Further, no party disputes the evidence of Dr Rogstad or the evidence of the other expert instructed in this case, Dr Gavin.

I have been very careful at all times to bear in mind that the lay witnesses who have given evidence to this Court regarding the allegations in question (specifically N and the father), are being asked to recall events that took place sixteen years-ago.

The age of the relevant allegations in this case has presented challenges in securing disclosure of relevant evidence. However, through the work of the parties, assisted by orders of the Court, substantial (although not complete) disclosure has been achieved. In the circumstances, I have seen disclosure concerning the allegations of sexual abuse that has been secured from the social services of the relevant local authority. The papers relating to the criminal proceedings have not been retained by the Police, or the Crown Prosecution Service, although it has been possible to obtain copies of certain of those papers from alternative sources (namely the retired Forensic Physician who examined X on behalf of the Police, Dr E) and I have considered these. Finally, X consented to the disclosure of certain of her medical and mental health records into these proceedings.

I have been very careful through the course of this hearing to bear in mind that disclosure obtained in this case is not, by reason of the passage of time, entirely complete. In particular, I have borne in mind that the Court does not have a comprehensive picture of the circumstances in which the charge of rape against the father, arising from the events concerning of X in 2000, was discontinued by the Crown Prosecution Service.

In addition to the issue of sexual abuse, the mother also alleges that the father was verbally abusive to her during the course of their relationship. These allegations are denied by the father. At the outset of the hearing the mother sought certain findings in this regard. However, having regard to the principles set out in FPR 2010 PD12J, and Re L (Contact: Domestic Violence), Re V (Contact: Domestic Violence), Re M (Contact: Domestic Violence), and Re H (Contact: Domestic Violence) [2000] FLR 134, it was agreed by all parties that it was not necessary for the Court to examine and determine those allegations at this hearing.

I am grateful to all counsel and their instructing solicitors for the efficient and diligent manner in which they have prepared and presented a case considerably complicated by the historic nature of the allegations with which the Court is concerned. I am also grateful to the relevant local authority for the assistance rendered to the Court by way of the provision of documents and liaison with X regarding the sensitive issue of disclosure in this case.

The findings sought against the father are set out in a Scott Schedule, prepared by those representing the mother, and are as follows (certain of which are no longer disputed by the father):

The survey of the background to this matter must begin in 2000. At that time the father was in a relationship with N, which relationship had begun in 1998. N contends that the father is the father of two of her children, a fact that the father contends he was unaware of prior to these proceedings, but now appears to accept. When pressed on this issue in cross-examination, the father claimed that he had asked N to abort the pregnancy of the first child, as he was concerned about the level of responsibility in the context of a causal relationship, and that he had not thought to ask about the paternity of the second child.

N says the father was fully aware of the paternity of the two children and that, at least by the time of the second pregnancy, the relationship was not casual; a point the father appeared to concede. N was emphatic on this point when giving oral evidence.

I am satisfied that the father was aware of the paternity of both children at the time of the pregnancies. I am satisfied that it is unlikely that the father would have pressed N to terminate the pregnancy on the grounds of not wanting responsibility if the child was not his and the relationship was as casual as he contends. I find it frankly incredible that the father did “not think to ask” about the paternity of a second child in the context of a relationship that both N and the father concede by that time had become more serious. I am satisfied that the father is not telling the truth about these matters, in an effort to depict himself as less involved in N’s family and home life than he actually was.

There is a dispute in this case as to how much time the father spent at the property of N. The father contends he spent very little time at the home of N, and only at weekends. N was clear that the father would stay at her property regularly, sometimes for every night in a given week. The relevance of this dispute is of course that it informs the question of whether and to what extent the father had an opportunity to perpetrate abuse on X.

In his statements dated 12 November 2015, and 5 April 2016, the father does concede that on occasion he would stay overnight with N, but he denies emphatically that he was ever left alone with X, and that the day-to-day care was carried by N. The father concedes that he was on occasion present with N bathed the children, but states that he “certainly did not take any lead role with regards to supervision”. The father goes on to state “I also definitely do not recall being alone with the children” and “I certainly do not recall being there unsupervised with the children at all”. The father states that it was he who would go to the shops if provisions were needed, although he then states that “If N had popped out to the shops (and I cannot recall any specific times that she has done so) it would not have been for long, as the local shop was in close proximity to the house”. The father denies ever having put X to bed and says he took no role in doing so.

The father maintained his denial of ever having been left alone with N’s children, and specifically X, over the course of his nearly two-year relationship with her. In cross-examination he stated that there was no moment in time when he was on his own with any of the children. He asked the Court to accept that at no point during that period was he apart from N when the children were in the property.

Within this context, whilst the father conceded that the task of caring for three children when pregnant with a fourth would have been an onerous task for N, and that in circumstances where two of the mother’s other children, S and T, were of similar ages and had similar routines, X would stay up whilst N put the other children to bed. He insisted that by reason of her being clingy X, would always be with her mother while she was caring for the other two children.

N contends in her statement that during the course of their relationship the father would stay at her property for three nights per week. N states that the father’s relationship with X was good. She further contends that the father would help with washing and dressing the children for school in the morning, and would help with supervising meal times and bath times in the evening. N contends that the father was left unsupervised with the children if she went to the local shop, or if she was in a different part of the house. She stated that the father would on occasion bathe X unsupervised and put her to bed, which activities would take up to an hour. In her oral evidence, N was emphatic in her insistence that the father did care for X unsupervised on occasion, which care included bathing her and getting her ready, including for bed.

Within this context it is important also to note that on 5 January 2000, N is recorded as having told social workers that the father did none of the care of the children, and spends little time with them. However, at 13:00 hours on 6 January 2000, N told doctors that the father would have had the opportunity to abuse X, the father spending time upstairs alone with X when she was caring for the other children. N was clear when speaking to doctors however, that she did not believe that the father had abused X

The Social Services records indicate that on 12 January 2000, N was questioned by Police, and stated that no other males apart from the father had had unsupervised contact with X or the other children. It has not been possible to trace a record of this interview. However, I note that in the social work records dated 12 January 2000, (the day N was interviewed by the Police) it is recorded as follows:

“It appears that Y got access to X on his own as the routine for the family in the mornings was that N would come down with the two younger children to get them ready, and Y would stay with X upstairs getting her ready”.

In oral evidence, N was adamant that the father had spent significant periods at her property, and had had unsupervised contact with X. Indeed, the point at which N became most animated during her evidence was when it was suggested to her that this was not the case. N states that the only other person to have unsupervised contact with X at this time was her sister.

Within the foregoing context it is of course important to recognise that N’s account to this Court of the father’s level of involvement in the care of the children, and specifically whether he had unsupervised contact with X, is different to that which she initially gave to social workers, although consistent with that which she thereafter gave to doctors, social workers and the Police.

Having heard N give evidence, and having regard to certain of the documents before the Court, I am satisfied that the original and different account given by N was given in the context of:

Applying the principles set out in R v Lucas [1981] QB 720, I am satisfied that N’s original account was heavily influenced by her anxiety about the DSS, and her shock and confusion regarding the allegations, and that it is her later and subsequently consistent account that is more likely to be the truth.

On the issue of the extent to which the father was involved in the care of N’s children, and with X in particular, the ABE interview of X is also important. X was ABE interviewed on 7 January 2000, by M, a Clinical Psychologist. During the course of the interview X made no mention of sexual or other abuse. It is however of note that when asked who lived at her house, she said “My Dad and Mummy”, and that her “Daddy’s name” is “Y”. X said of the person she referred to as “Daddy” that “He stays at work and when it’s dark he comes” and that this happened on “some days”. X further stated that if she is naughty, the person she referred to as “Daddy” smacks her and puts her to bed.

It is clear that (at least from X’s perspective) the father came to the property on days he had been working, and was seen by her as “a father figure within the home”. Within this context I note that in the Social Services document record on 25 February 2000, N indicated that X often asked for the father following his arrest. All this, in my judgment, points to a degree of involvement by the father in X’s life and her care that went significantly beyond the level the father now seeks to portray.

The father asserts that at the time the allegations in respect of X arose, N was having a sexual relationship with another man. The father’s case in this regard is not particularised as to dates and times. Whilst in his oral evidence the father suggested that N had a sexual relationship with T’s father during the course of her relationship with the father, the sense of that evidence was that this had occurred somewhat earlier than the events with which the court is concerned. However, the father also highlighted a man called F as being a man N was having a sexual relationship with in mid-November 1999.

In his closing submissions the father posited the possibility that F was responsible for the abuse sustained by X, pointing to Dr Rogstad’s evidence that the symptoms of gonorrhoea exhibited by X would have developed within days or weeks of infection, and that X was first taken to the Emergency Department with symptoms on 28 November 1999. Miss Salmon submits that there is no indication that the Police investigated F as part of their inquiry, and no clear indication as to from where N or the father contracted gonorrhoea.

The assertion on the part of the father in respect of F stems from a comment that appears to have been made by N, either to a Detective Constable G at 12:00 hours on 7 January 2000, that she had a sexual relationship with a man called F, with whom she had had intercourse twice in mid-November 1999. She insisted at this time that this man had not come in to unsupervised contact with X.

However, prior to this point, N had told doctors in the Emergency Department at 13:00 hours on 6 January 2000, (and it is recorded earlier on 7 January 2000 telling the social worker) that she had only had sex with the father. In her statement N denied having sexual relations with anyone other than the father between 1998 and January 2000, and that she had not had any STD infection prior to 2000. In oral evidence, N denied having sexual relations with anyone else in late 1999, stated she could not recall a man called F, and pointed out that she was six months pregnant at the time with the father’s child.

The evidence as to whether N was having a sexual relationship with another man called F, in addition to the father, in late 1999, is thus inconsistent. On balance, however, I consider it more likely that the account given by N to Detective Constable G on 7 January 2000, is the truth. My reasons for this are threefold:

I am further reinforced in my conclusion that N’s statement that she had had sex with F twice in November 1999 but that he had never had unsupervised contact with X is more likely to be the truth, by reason of it being unlikely in my judgment that she would have left F alone with X if he were a relatively casual sexual encounter for two nights over the course of that month. The fact that the father was unable to provide any further details in respect of F reinforces the apparently very casual nature of N’s encounters with that gentleman.

Finally, in this respect, as I have noted already, X has only ever spoken about the father in the context of talking about males in the household, and as I will note later in this judgment, it appears certainly on the records available, that she has not mentioned F in the context of talking about the sexual abuse she suffered.

On 28 November 1999, N took X, who was then aged five years-old, to the Emergency Department after noticing that X was suffering from vaginal discharge, which discharge was confirmed upon examination by Dr D at the Emergency Department. I have had the benefit of seeing a statement from Dr D taken by the Police on 21 January 2000. No party sought to call Dr D to give evidence.

A urine sample was taken, and upon testing was found to have traces of protein and blood. A presumptive diagnosis of a urinary tract infection was made, X was prescribed a course of antibiotics, and a follow up with the paediatric outpatient clinic was arranged.

On 13 December 1999, the GP, Dr T, noted that X’s discharge continued. I have had the benefit of seeing a statement from Dr T taken by the Police on 19 January 2000. No party sought to call Dr T to give evidence. Dr T confirms that she took two swabs and did not perform an internal examination.

Dr E (the Independent Forensic Physician who examined X on behalf of the Police on 6 January 2000) confirms in her report dated 8 March 2000, that the swabs taken by the GP were taken from an area that would not have caused damage to the hymen. Dr T referred X to the local hospital.

X was seen at hospital on 16 December 1999 by Dr L, a Consultant Paediatrician, at which time the discharge persisted. It would appear on 16 December 2000 that N was concerned that X might have been abused, although a later letter from Dr L dated 6 January 2000, indicates that N was expressing a general concern related to the possibility of sexual contact outside the home. In her oral evidence N confirmed that her general worry about sexual abuse was just one of the concerns “in her head” at the time.

A vaginal swab was taken on 16 December 1999. I have had sight of the pathology results dated 4 January 2000, confirming that X had gonorrhoea. The delay between the swab being taken on 16 December 1999, and her diagnosis with gonorrhoea on 4 January 2000, appears to have resulted from an administrative error.

On 17 December 1999, Dr N performed an internal examination by means of the insertion of a hysteroscope (a smooth sided instrument with a diameter of 6 mm, which Dr E states will be able to pass through the elastic hymenal opening without resulting in any damage). I have seen the contemporaneous notes of this examination, and have had the benefit of seeing a statement from Dr N, taken by the Police on 21 January 2000. Dr N details the examination and states that she did not specifically examine the hymen during that examination, that the examination excluded a foreign body as being the cause of a discharge and that no post-operative bleeding was noted following this procedure.

Following the results of the test for gonorrhoea becoming available on 4 January 2000, it would appear that N asked X whether anyone had touched her. X insisted that no-one had. N, however, reported to the social workers that X did ask whether she, N, had ever been touched down below.

On 6 January 2000, X was examined by an Independent Forensic Physician, Dr E, a Consultant Paediatrician, Dr L, and a doctor from the Genitourinary Department, Dr A, at hospital. I have again had the benefit of seeing the contemporaneous notes of this examination. The contemporaneous notes of the examination on 6 January 2000 detail the examination revealed a full width deep angular deficit in the hymen at the 6 o’clock position. The summary of medical findings dated 6^th January 2000, states that the “Genital findings are consistent with penetration through the hymen, and this, together with the finding of gonococcal infection, are very strongly indicative that sexual assault has occurred”.

I have also had sight of the witness statement prepared by Dr E for the Police, following the examination of X on 6 January 2000, dated 8 March 2000. No-one has sought to challenge the evidence of Dr E. In her statement Dr E records that prior to X’s presentation with vaginal discharge, X had no history of urinary tract problems. Dr E records the finding of a full width deep angular deficit in the hymen at the 6 o’clock position. Dr E sets out the following conclusions in her report:

On 20 April 2000, Dr E provided a further witness statement, which set out the following further matters arising from the examination of X, on 6 January 2000:

N stated that when she first heard about the damage to X’s hymen, she thought of an accident X had been involved with on a bike when she collided with a wall.

On 7 January 2000, Dr A examined N as a result of her informing him that she was pregnant. I have also had sight of a statement of Dr A, taken by the Police on 20 January 2000. Again, no party has sought to call Dr A to give evidence. Upon examining N, Dr A noted that she had cervical discharge and accordingly took swabs. The results of a test performed on the swabs were highly suggestive of gonorrhoea, Dr A confirming that he checked the sample himself under the microscope (although it must be noted that Dr Rogstad states that microscopy cannot distinguish between Neisseria gonorrhoea, the sexually transmitted infection, and Neisseria meningitides, which is found in the throat).

As I have noted, on 7 January 2000, X underwent an ABE interview, and did not talk about abuse. The father was arrested and interviewed by the Police on 10 January 2000. It has not been possible to secure a tape or transcript of that interview, but the social work records indicate that the father denied abusing X. The father consented to being tested for gonorrhoea.

On 11 January 2000, Dr A examined the father and noticed a slight discharge from his urethra. Dr A took swabs. The results of the tests performed on those swabs were highly suggestive of gonorrhoea, Dr A confirming that he again checked the sample himself under the microscope. Again, I note that Dr Rogstad has stated that microscopy cannot distinguish between Neisseria gonorrhoea (the sexually transmitted infection) and Neisseria meningitides (found in throat). In consequence, the father sought to secure his genitourinary records within the context of these proceedings. Given the passage of time it has not been possible to locate the father’s GUM records, which information obtained suggests in all likelihood have been destroyed. Notwithstanding the absence of those records, and having regard to the evidence of Dr Rogstad (which I deal with later in this judgment) the father concedes that he did have Neisseria gonorrhoea at the relevant time.

The father was interviewed again in light of his testing positive for gonorrhoea. He again denied any knowledge of abuse, stated that he did not ever share a bed with X, and indicated that there was no possibility of him having accidentally infected her. Once again, it has not been possible to secure a transcript of this interview, and this account is taken from the social work records. Following this interview, the father was charged with the rape of X, and remanded in custody.

In her oral evidence, N confirmed that subsequent to the arrest of the father (and after N had told X in response to X asking where the father was, that he had been “naughty” and was “in prison”), X had said that the father had “touched her in the bath”, and that she did not like him. It was not suggested to N in cross examination that she was lying when she gave this account of what X said.

The criminal proceedings against the father were ultimately discontinued. In the absence of disclosure from the Crown Prosecution Service, the precise circumstances in which the criminal proceedings were discontinued is not entirely clear. It would appear, however, that the prosecution became concerned about the potential modes of transmission of gonorrhoea. The Social Services records indicate that the CPS disclosed into the criminal proceedings historic research conducted in the mid-1960s that indicated that it was possible that gonorrhoea could be transmitted through the shared use of towels. The Social Services records indicate that this development led, eventually, to the case against the father being discontinued. There is also some suggestion on the papers that the Police, or the CPS, had become concerned regarding N’s account of X having an accident whist riding her bicycle.

In her statement to the Court, N confirmed that in the months and years following the alleged abuse, X has become very depressed, self-harms, and is unable to maintain stable relationships by reason of her depression, mood swings and panic attacks. In October 2001, X was referred to a Child and Adolescent Psychiatrist. The Court has had the benefit of seeing certain of X’s medical records, including certain records from CAMHS. Those records reveal the following matters:

The accounts given by the father to professionals and the Court in these proceedings, regarding the events in 2000, have been less than consistent. The CAFCASS Safeguarding Enquiries Report dated 29 October 2014, records that on 22 October 2014, the father gave the following account, which in no way accords with the records that the Court has before it:

“Mr Y stated that the incident involved was with regard to his ex-partner’s daughter, and not his daughter. He said that she took her to the doctors and the GP found a hair, and they informed the Police. He stated he was under suspicion but it was thrown out of Court by the Judge. Mr Y said he did not do anything and there was no evidence at all. Mr Y stated that Miss W is aware of this investigation”.

In his statement in these proceedings dated 10 April 2015, the father concedes he was charged in 2000, with rape in respect of X. The father states “Basically what led to my arrest and the subsequent trial was as a result of me sleeping with a girl who contracted gonorrhoea, and so did her five-year-old child”. However, in detailing the circumstances by which the criminal proceedings were brought to an end, the father claimed in his statement that “The child was forensically examined and there was no evidence at all of a sexual nature”. By reference to the records I have summarised above, this was not true. In his later statement the father attributes this to a lapse in memory, and states that he did not intend to deceive the Court.

In his statement of 12 November 2015, the father states that “It is my understanding there has never been a disclosure made by the child that would indicate she has been abused in any way”. As set out in the medical and mental health records of X, summarised above, this is not correct, although I accept that the father would have had no way of knowing this at the time he signed his statement on 12 November 2015.

The father and the mother were in a relationship between 2007 and 2014. That relationship ended in May 2014. In his statements, the father contends, as he did to CAFCASS on 22 October 2014, that he was open with the mother about the fact he had been charged with the rape of X in 2000. The mother denies that the father told her this. In oral evidence the mother was adamant that she had not been told by the father of the events of 2000, or their aftermath. She said had she been told she would never have lived with him, or planned a family with him. Her extreme distress at the consequences of her having ordered her life and her plans to build a family without this knowledge was palpable and compelling during her evidence. Further, I note that the account the father gives in his statement of telling the mother about the events of 2000, is different from the account he gave in this regard in his oral evidence.

In addition to the evidence I have set out above, I have had the benefit of two expert reports. Neither expert report is disputed by the parties, and it has therefore not been necessary for either expert to attend to give oral evidence.

Dr Karen Rogstad is a Consultant Physician in genitourinary medicine. Her area of expertise is sexually transmitted infections, and their association or otherwise with child sexual abuse. Dr Rogstad very properly makes clear that she is not a qualified paediatrician, and therefore is not an expert on other indicators of child sexual abuse.

Within the context of her area of expertise, Dr Rogstad has been involved in the production of both editions of the Royal College of Paediatrics Child Health, the Physical Signs of Child Sexual Abuse in 2008 and 2015. She has published research on the incidents of sexually transmitted diseases in children under the age of thirteen.

Dr Rogstad states that gonorrhoea is the term used to describe an infection caused by the gram negative intracellular diplococcus bacteria, Neisseria Gonorrhoea. Dr Rogstad makes clear that this is not a robust bacteria and is unable to survive outside the body for more than a very short period. It is a sexually transmitted infection in adults and is passed on by direct contact of mucus membranes with infected secretions. It causes an infection in the vagina and cervix of women, and the urethra of men and women. In neonates (defined as infants less than one month old) and, unusually, in older children and adults it can infect the conjunctiva.

Dr Rogstad opines that in prepubital children, genital infection in an adult could be transmitted through vertical transmission from the mother to child during delivery, through an infected birth canal, or from rupture of infected membranes, through contact with contaminated objects (fomites) or through sexual contact. Dr Rogstad notes that currently good evidence exists only for infection at birth, or infection due to sexual transmission. Dr Rogstad states that gonorrhoea is rare in children. Prepubital girls with gonorrhoea are thought to develop symptoms soon after the infection, in a matter of days or weeks.

In this case, Dr Rogstad opines that sexual transmission is the most likely cause of transmission. Dr Rogstad bases this opinion on a review of the evidence base for gonorrhoea as a marker for child sexual abuse, undertaken for the Royal College of Paediatrics Child Health, the Physical Signs of Sexual Abuse 2008 and 2015, which suggests that the majority of cases of gonorrhoea in children are sexually transmitted. The fact that in adult women gonorrhoea is always passed through sexual intercourse with rare, if any exceptions, and its presence in this case are additional indications of sexual abuse.

Further, Dr Rogstad considers that vertical transmission at birth is highly unlikely in this case, as children with vertical infection would normally present in the neo-natal period with conjunctivitis. There is no evidence of that occurring in this case. In addition, Dr Rogstad states that there is no evidence of gonorrhoea persisting in the five years after birth, X being five when she presented with gonorrhoea.

Dr Rogstad also considers that fomite transmission (transmission by way of a contaminated object) is unlikely as the gonococcus bacteria cannot easily survive outside the human body. In respect of the specific question of whether fomite transmission could occur through the shared use of a towel, Dr Rogstad highlights a review article published in 2007 (Goodyear-Smith F, What is the evidence for non-sexual transmission of gonorrhoea in children after the neonatal period? A systemic review [2007] Journal of Forensic Medicine Vol 14 (8) 489-502). That review considered several publications dating from the 19 century to 1980, concerning the non-sexual transmission Neisseria gonorrhoeae by the way of towels, bedding or underwear.

The Royal College of Paediatrics Child Health, the Physical Signs of Child Sexual Abuse 2008 considered the Goodyear-Smith review lacked the rigorous criteria used in that evidence based guidance regarding certainty of diagnosis, exclusion of abuse, and it also included conjunctival infections. Dr Rogstad further points out that most of the papers on non-sexual transmission of gonorrhoea in children date to when child sexual abuse as a cause was rarely considered and, where it was, this was not the result of a full assessment using a multi-professional approach. In addition, some of the papers used questionable testing methodology. Finally, Dr Rogstad cites a recent report on non-sexual transmission (Dayan L, Transmission of Neissseria gonorrhoeae from a toilet seat (2003) Journal of Sexually Transmitted Infections) in specific and unusual circumstances where the child demonstrated no other behavioural or physical indicators to suggest child sexual abuse.

Within the foregoing context, Dr Rogstad considers that whilst it is theoretically possible and cannot be ruled out, it is highly unlikely that gonorrhoeae was transmitted to X by way of a shared towel. Dr Rogstad considers that, whilst there have been occasional reports of accidental transmission under highly unusual circumstances, accidental infection is rare, and is highly unlikely to have occurred in this case. Dr Rogstad is not aware of any cases of accidental genital infection in children.

Dr Rogstad is clear that infection with gonorrhoea cannot arise de novo, and has to be transmitted. As to the source of the infection in X that Dr Rogstad considers most likely results from sexual transmission, Dr Rogstad cautions that she has not seen the results of the culture of the organisms swabbed from N and the father, or the typing of them. As noted above, Dr Rogstad further cautions that microscopy cannot distinguish between Neisseria gonorrhoea, the sexually transmitted infection, and Neisseria meningitides which is found in the throat.

However, Dr Rogstad opines that because both adults had microscopy suggestive of gonorrhoea (which Dr A took pains to check carefully), and X was culture positive, it is likely that this was a true infection. Whilst in the absence of the results of culture and typing, Dr Rogstad cannot be “absolutely certain” that the strain present in X was the same as that in the adults, in the absence of any other identified person having regular contact with X, it is more likely than not in Dr Rogstad’s opinion that the source of the infection is one or other of N or the father.

Dr Gavin is a Forensic Physician. She is a lecturer on Forensic Medical examination of Sexual Assault. She has examined over 500 adults and children of both sexes, who were complainants of alleged rape or sexual assault.

After describing the nature and characteristics of the hymen, Dr Gavin states that injuries to the hymen may occur when an object penetrating through the hymen stretches the hymenal tissue beyond its elastic limits, resulting in one or more partial or complete lacerations. Where the laceration is complete (i.e. a laceration extending through the whole width of the hymen to its base) the laceration will usually heal to leave a discontinuity in the full width of the hymen, absent surgical repair.

Dr Gavin makes clear that it is not possible to distinguish between penetrative injuries caused by penile penetration from those caused by a finger, or other object. She states that general injuries usually heal rapidly by reason of the tissue’s excellent blood supply. Once healed, Dr Gavin is clear that it is not possible to date the hymenal laceration.

Dr Gavin is careful to point out that indentations in the hymenal membrane may also be part of the normal hymenal morphology seen in non-abused prepubital girls, as well as sexually abused girls. However, Dr Gavin notes that deep clefts or notches in the posterior hymen (those amounting to greater than 50 percent of the width of a hymen) have only been reported in prepubital girls with a history of vaginal penetration.

Dr Gavin states that healed full width lacerations may be found in girls following penetrative sexual abuse, or accidental hymenal trauma. In prepubital girls who have been sexually abused, Dr Gavin says the healed full width laceration will usually be found on the posterior hymen between the 3 o’clock and the 9 o’clock positions. Mechanisms for accidental injury include:

Dr Gavin opines that an injury to the hymen as the result of a non-penetrating straddle injury is very rare, and that accidental non-straddle injury is even less common. Dr Gavin states that clinical experience and reports published in the literature suggest that accidental genital injury is uncommon, and that isolated hymenal injury is very rare, although she cautions there are several limitations that must be considered when interpreting the literature. Finally, Dr Gavin opines that gentle insertion of a hysteroscope under direct vision through the hymen does not usually result in injury to children with normal sized hymenal orifices, although iatrogenic injury is a possible complication, depending on the experience and skill of the operator.

Within the foregoing context (and noting that the description given by the examining doctors was given prior to the publication of the Royal College of Paediatrics Child Heath the Physical Signs of Child Sexual Abuse 2008, which introduced a standardised descriptive terminology) in Dr Gavin’s opinion, the full width deep angular deficit in X’s hymen at the 6 o’clock position, as observed during the examination undertaken on 6 January 2000, is most likely to be a healed laceration caused by a previous injury to the hymen, now termed a “transection”. Dr Gavin arrives at this conclusion by reason of the fact that hymenal transections have not been reported in prepubital girls selected for non-abuse, and accordingly it is extremely unlikely that the transection seen in X is a normal variant.

Within the foregoing context of the three possible causes of injury to X’s hymen (penetrating trauma as the result of sexual abuse, accidental injury, and iatrogenic injury), Dr Gavin is of the opinion that the most likely cause for the hymenal transection is penetration through the hymen as the result of penetrative sexual abuse. Dr Gavin’s opinion is based on:

Whilst Dr Gavin notes that N reported that X had been involved in an accident whilst on a bike, she further notes that no further details to determine when this accident occurred, or whether injury to the genitalia was noted at the time. In the absence of genital injuries at the time, Dr Gavin considers that accidental injury to the hymen is unlikely in circumstances:

Dr Gavin is likewise of the opinion that the hysteroscope examination undertaken by Dr N on 17 December 1999, is very unlikely to have caused injury to X’s hymen. Dr Gavin notes that Dr E recorded the estimated diameter of X’s hymenal orifice as approximately 8 millimetres. Whilst accounting for the fact that measurements of hymenal width are often inaccurate, Dr Gavin considers that this finding indicates at least that X’s hymenal orifice was not abnormally small, and that therefore, a 6 millimetre hysteroscope inserted under direct vision would not normally expect to cause injury to the hymen. Further, Dr Gavin notes that this procedure was performed on X under general anaesthetic, which would have resulted in the tissues being very relaxed. In addition, Dr N records in her Police statement, that the procedure was totally atraumatic with no post-operative bleeding. In all these circumstances, Dr Gavin considers it very unlikely that the examination of Dr N caused the damage to X’s hymen, although the possibility cannot be completely excluded. Dr Gavin opines that it is extremely unlikely that X caused the hymenal damage to herself.

Against the background facts and the evidence set out above, and the expert evidence, I am now required to determine whether the facts set out in the Scott Schedule are made out on the balance of probabilities.

The burden of proving a fact is on the party asserting that fact. To prove the fact asserted, that fact must be established on the balance of probabilities. The inherent probability or improbability of an event remains a matter be taken into account when weighing the probabilities, and deciding on balance whether the event occurred. As has been observed in Re B [2008] UKHL 35, paragraph 15 “Common sense not law requires that in deciding this question regard should be had to whatever extent appropriate to inherent probabilities”.

The decision on whether the facts in issue have been proved to the requisite standard must be based on all of the available evidence, and should have regard to the wide context of social, emotional, ethical and moral factors (A County Council v A Mother, A Father, and X, Y and Z [2005] EWHC 31 Fam).

Where the evidence of a child stands only as hearsay, the Court weighing up that evidence has to take into account the fact that the child has not been subject to cross-examination (Re W (Children: Abuse Oral Evidence) [2010] 1 FLR 1485).

As I have already had cause to consider in relation to N, where a Court concludes that a witness has lied about one matter, it does not follow that he or she has lied about everything. A witness may lie for many reasons, for example, out of shame, humiliation, misplaced loyalty, panic, fear, distress, confusion, and/or emotional pressure (R v Lucas [1981] QB 720).

A finding that a child has been subject to sexual abuse may be made as a result of a wide variety of evidence, including direct evidence from the child, reported evidence of what the child has said or demonstrated, direct evidence of adults, admissions by adults, expert psychological or psychiatric evidence, or expert medical evidence and diagnosis. In most cases a finding may be based upon a combination of one or more of these sources of evidence.

Within this context, the Court must not evaluate and assess the available evidence in separate compartments, rather, regard must be had to the relevance of each piece of evidence to other evidence, and to exercise an overview of the totality of the evidence in order to come to the conclusion whether the case put forward has been made out in the balance of probabilities (Re T [2004] 2 FLR 838 at [33]).

When assessing whether or not allegations of sexual abuse are established, the Court should focus upon all of the relevant evidence in the case, including that from the alleged perpetrator and from family members (Re IA (Allegations of Sexual Abuse) [2012] 2 FLR 837).

Within this context, when the Court is considering allegations of sexual abuse, purely medical assessments and opinion should not be allowed to predominate (Leeds City Council v YX and ZX (Assessment of Sexual Abuse) [2008] 2 FLR 869). Where medical evidence shows signs which are compatible with sexual abuse (as opposed to probative of it) other non-medical evidence will be needed to confirm the diagnosis (Re Z (Minors: Child Abuse Evidence) [1989] 2 FLR 3).

There is no room for a finding by the Court that something might have happened. The Court may decide that it did, or that it did not (Re B [2008] UKHL 35 at [2]). However, failure to find a fact proved on the balance of probabilities does not equate without more to a finding that the allegation is false (Re M (Children) [2013] EWCA Civ 388).

In accordance with the foregoing general principles, when assessing whether or not allegations of sexual abuse are proved to the requisite standard, the Court should focus on all the relevant evidence in the case, including as I have said, the evidence of the alleged perpetrator.

Where the Court is dealing with an allegation of sexual abuse, the Court should adopt a two stage process. First, is there evidence of sexual abuse? If so, is there evidence of the identity of the perpetrator? (Re H (A Minor); Re K (Minors) (Child Abuse: Evidence) [1989] 2 FLR 313, and Re H v R (Child: Sexual Abuse Standard of Proof) [1995] 1 FLR 643).

Finally, in relation to the issue of disclosure, the annex of Best Practice Guidance, June 1997, taken from the Children Act Advisory Committee Handbook of Best Practice, highlights the difficulties that can arise in private law cases where allegations of sexual abuse are made. In particular, the guidance notes that the Court has the power to compel discovery of documents held by local authorities, or the Police, and that any issues regarding such disclosure should be determined at an early stage. In cases where, applying the principles set out in FBR 2010 PD12J, and Re L (Contact: Domestic Violence), Re B (Contact: Domestic Violence), Re M (Contact: Domestic Violence) and Re H (Contact: Domestic Violence) [2000] 2 FLR 134, it is plain that a historic allegation of sexual abuse will be likely to be relevant in deciding whether to make a Child Arrangements Order, and if so in what terms, it is very important that the guidance set out in the annex to the Best Practice Guidance of June 1997, is followed.

Having regard to the concessions made by the father, the totality of the evidence before the Court, and applying the legal principles that I have summarised, I am satisfied that the following facts are made out on the balance of probabilities:

My reason for being so satisfied that the foregoing facts are established to the requisite standard are as follows. First:

Further, whilst evidence of opportunity is not by itself probative of sexual abuse, within the foregoing context I am also satisfied that the father had unsupervised contact with X in N’s property, during the course of his relationship with N, and during November 1999. The father’s assertion that over the course of his two-year relationship with N, he had no unsupervised contact whatsoever with her children, including X, is highly unlikely, in my judgment, to be true. This is particularly the case where the father himself conceded in evidence that the task of caring for three children when pregnant with a fourth would have been an onerous task for N, and that in circumstances where S and T were of similar ages and had similar routines, X would stay up whilst N put the other two children to bed.

Within this context, and for reasons I have already set out, I accept that N was telling the truth when she told doctors, the Police and social workers in 2000, that the father would have had the opportunity to abuse X, the father spending time upstairs alone with X when she was caring for the other children.

I also rely on the fact of X’s perception that the father was “Daddy” in her eyes, suggesting a significant level of involvement by the father in X’s life, and the fact that X stated in her ABE interview that if she was naughty the person she referred to as “Daddy” smacks her and puts her to bed.

Having regard to the totality of the evidence before the Court, I am satisfied on the balance of probabilities that there were occasions when the routine in the property was that N would be with the two younger children to get them ready, and the father would be alone with X unsupervised.

I am satisfied that the father has been untruthful on a number of occasions in respect of the events of 2000. Within the foregoing context I am satisfied that he is not telling the truth when he seeks to assert vehemently that he on no occasion had unsupervised contact with N’s children, including X. I am further satisfied that he gave an untruthful account of the events of 2000, when speaking to CAFCASS on 22 October 2015 during the initial Safeguarding Procedure in this case and giving an inaccurate and utterly sanitised account of those events. Finally, I am satisfied that the father gave an untruthful account of the events of 2000, in his statement, when asserting that “The child was forensically examined and there was no evidence at all of a sexual nature”.

In considering the import of these lies told by the father, I have of course had regard to the principles set out in R v Lucas. I recognise that the father could have difficulty remembering accurately events that occurred sixteen years ago. However, I also bear in mind that the father was the subject of criminal proceedings in respect of those events, and was represented during the same. In the circumstances, he would have been assisted to understand the evidence against him. In addition, in seeking to establish that he told the mother of the events of 2000, the father asserts that he has “always been open” with his partners, suggesting that he had cause to recollect these events in the years following 2000, thereby refreshing his memory. I also bear in mind that a parent who is seeking contact with their child may be tempted to sanitise their history for fear that the truth may adversely impact on their case. Finally, it is important to note that a person may have more than one motivation for not telling the truth.

Looking at the evidence as a whole, and on balance, I am satisfied that at least part of the motivation behind the father telling the lies he did to CAFCASS, and to the Court was an attempt to avoid the discovery of an episode of abuse that he knew he had committed. In the circumstances, I have taken account of the lies the father has told in reaching my conclusion that he perpetrated the abuse suffered by X.

In reaching my conclusions I have also borne in mind that X has herself made statements implicating the father as her abuser. I accept the evidence of N that X told her that the father had “touched her in the bath”, and that she did not like it, and made statements to N to the effect that “it wouldn’t have happened if you had not gone out”. I further note the entries in the CAMHS records that X drew inappropriate sexualised pictures, and intimated that the father had abused her, stating on 25^th February 2002 “You know that Y that did that thing to me, he’s ugly, he lives in [location given] now with [identity given]”. Whilst I have been very careful to bear in mind N’s concession that following the father’s arrest, she told X in response to X asking where the father was, that he had “been naughty” and was “in prison”. In my judgment, this does not substantially change my analysis of the significance of the statements made by X.

Finally, in reaching my conclusion, I make clear that I have not relied on the evidence concerning X’s behavioural difficulties in the months and years following the abuse she suffered. Whilst that behaviour is likely to be the result of the sexual abuse that all parties accept was perpetrated against X, it seems to me that it does not assist the Court in determining who perpetrated that abuse, save where X made explicit statements in that regard.

Miss Sammon has, in her careful and full submissions, said all that can be reasonably said on the father’s behalf. I accept Miss Sammon’s submission that the father has no criminal convictions, was not known to Social Services prior to 2000, has had no dealings with Social Services or the Police since 2000, save in relation to the breakdown of his relationship with the mother. I further accept Miss Sammon’s submission that the father has never been seen to behave inappropriately towards his own daughter or other children. However, whilst I have borne these matters very much in mind when assessing the likelihood that the father perpetrated abuse against X, I do not find that they alter my conclusions in that regard.

Surveying the broad canvas of evidence, and for the reasons I have given, in conclusion I am satisfied on the balance of probabilities that the father sexually abused X, in or around November 1999, by penetrative sexual abuse on at least one occasion. As a result of which, she was infected with gonorrhoea, suffered a laceration to her hymen, and suffered emotional harm which has manifested itself in high levels of emotional and behavioural distress for X in the many years that have followed.

That is my judgment.