MISS RECORDER HENLEY

This judgment was delivered in private. The judge has given leave for this version of the judgment to be published on condition that (irrespective of what is contained in the judgment) in any published version of the judgment the anonymity of the children and members of their family must be strictly preserved. All persons, including representatives of the media, must ensure that this condition is strictly complied with. Failure to do so will be a contempt of court.

Before:

MISS RECORDER HENLEY	

IN THE FAMILY COURT                                                  Case No. BB15P00083
SITTING AT MANCHESTER
In the matter of the Children Act 1989

In the matter of A (born [on a date in] 2010) 

BETWEEN:
F and SM
Applicants 
-and-

(1)	M
(2)	A
 (A Child, by her Children’s Guardian, Miss Howarth)
Respondents

__________________________________________________________
JUDGMENT
__________________________________________________________

Representation

Applicants – Miss Healing (Counsel)
Respondent M – Miss Singh (Counsel)
Respondent Child A – Miss Gregg (Counsel)

Introduction

1.	The Court is concerned with A (born [on a date in] 2010) now aged 6 years 3 months old.  A’s parents are the Father, F aged 32 years and the Mother, M aged 26 years.  The parents separated before A was born and have never been married but each share Parental Responsibility for A, as a result of F being granted a Residence Order in respect of A on 22nd August 2011.  The second applicant is F’s wife, A’s step mother, SM aged 37 years. 

2.	This matter comes before the Court for a Fact Finding Hearing in private law proceedings brought by F and SM. In their application dated 26th November 2015, they applied for a Prohibited Steps Order to prevent M from removing A from their care, and more specifically her school; SM also seeks a Child Arrangements Order for A to permit her to share Parental Responsibility for A with each of her biological parents.

Background

3.	A was made the subject of care proceedings shortly after her birth following concerns about the M’s mental health.  M was thought to be suffering from post natal psychosis, an extreme form of post natal depression, which led to professional concerns about A’s safety in the care of the M.  M had been mentally unwell during the pregnancy and upon A’s birth she went into a mother and baby unit with her.  

4.	As a consequence of concerns by professionals about M’s deteriorating mental health during the first few weeks of A’s life, A, then aged less than two months old, was removed from M’s care by the Police.  This removal was followed by an application for an Emergency Protection Order on 5th March 2010 by Bury Metropolitan Borough Council which was compromised by M agreeing to A’s voluntary accommodation in foster care.  Care proceedings followed.

5.	In October 2010 A went to live with the F.  Care proceedings concluded with the making of a final Residence Order to F, a 12 month Supervision Order in favour of Bury Metropolitan Borough Council and unsupervised contact to M as follows: Mondays from 12noon-6pm, alternate Wednesdays from 12 noon-6pm, Fridays from 2pm-5pm and alternate weekend staying contact from 2pm on Friday until 7.30am on Monday.  Although I have seen a document entitled “Schedule of Findings to Satisfy Threshold Criteria” which purports to be a conceded set of findings, this document simply lists “concerns” and “referrals” in respect of M.  No findings or concessions were made as to whether those professional concerns were proven.  Those matters relate entirely to M and for these purposes it is sufficient to say that M has an admitted history, accompanied by an independent expert psychiatric assessment carried out in those proceedings by Dr Sarah Davenport, confirming that she had mental health difficulties which precluded her from safely caring for A at the outset of those proceedings but which had significantly ameliorated by the conclusion of them.  An addendum report dated 16th March 2010 confirms the progress that she made, including that she no longer met the criteria for Emotionally Unstable Personality Disorder. 

6.	In 2013 M applied for a Shared Residence Order.  Miss Howarth, A’s Guardian in these proceedings was appointed as A’s Guardian in those proceedings.  The result of those proceedings was that A remained living with the F and M’s contact was adjusted to alternate weekend contact with one midweek overnight contact.  

7.	By this time M was in a relationship with SF, who had first met A as a baby.  On 8th January 2013 M gave birth to B, A’s half sister (SF being B’s father).  Also by this time, F was in a relationship with SM, who joined A’s life when she was 2 years old.  SM had an older child C (born [on a date in] 2005).  A therefore had to adjust to not only no longer being an only child, but sharing family life with F with his new partner and her daughter, and sharing time with M with her new partner and their baby.  Further change for A happened just months after B’s birth when F and SM had a child of their own, D (born [on a date in] 2013) shortly followed by their wedding on 3rd August 2013.

8.	In March 2015 a further set of private law proceedings were issued, this time to vary the contact arrangements for A.  M sought contact five days per week on weekdays with weekends for F.  F sought to vary M’s contact to remove the midweek contact.  Proceedings were compromised by agreement with the making of a Child Arrangements Order, which provided for A to spend time with M on alternate weekends and for the midweek contact to cease.  

Precipitating event

9.	On 17th July 2015 F and SM took all three children in their care, including A, on holiday to Turkey.  M had seen A for contact on the preceding weekend of 10th-12th July 2015.  Prior to embarking on the flight on 17th July 2015, A was permitted to telephone the M. 

10.	On 23rd July 2015, whilst in Turkey, SM asserts that A touched her vagina and disclosed that she had been sexually abused by M.  This incident and the events that followed led to these proceedings being issued.  What happened on that day, what A said and why has been the focus of this hearing.  I am asked to determine the facts of that day and whether A has been sexually abused by M.

11.	On 23rd July 2015, F and SM made a handwritten note of their account of events.  On 25th July 2015 SM covertly recorded a conversation she had with A on her mobile phone.

12.	Upon their return from holiday on 1st August 2015, F and SM reported matters to the Police handing over a copy of their contemporaneous note and the mobile phone recording.  They each made police statements and arranged for A to be ABE interviewed.  SM’s police statement is dated 1st August 2015; F’s is dated 21st August 2015.

13.	A was interviewed by the police in the form of a video recorded Achieving Best Evidence interview on 1st August 2015.  She made no disclosures.

14.	On 2nd August 2015, F and SM arranged for A and C to attend the police station and give ABE interviews.  A’s second ABE interview took place first at 10.49am.  Again, she made no disclosures.  Following this, C was ABE interviewed at 11.06am.  After the family left the Police station, A was returned and gave a third ABE interview.  This took place at 12.44pm.  Within this third interview, she made disclosures that M had touched her vaginal area and struck her chest, and that this had occurred on one occasion shortly after the preceding Christmas.

15.	A’s disclosures led to the arrest and interview under Caution of M on two occasions, the first on 2nd August 2015, the second on 18th August 2015.  M was made the subject of police bail.  During the investigation, on 2nd August 2015 B was removed from M’s care by the Police and placed with her Maternal Grandmother.  A written agreement was entered into with Bury Metropolitan Borough Council whereby M and SF agreed that she could remain living with her Maternal Grandmother and that M’s contact with B would be supervised.  Ultimately, the police decided to take no further action in November 2015 and B was returned to M’s care where she remains.  SF has filed a statement in support of M in these proceedings dated 18th April 2016; within that statement he states that although he continues to live with M and B the stress of these events has led to the breakdown of his relationship with M.

16.	As a consequence of these events, not only has M not seen A since 12th July 2015, A has not seen any member of her maternal family since that date, including B, her younger sister.

17.	A has been attending for therapy since October 2015.  I’m told that this therapy is predicated on the basis that she has been both the victim and perpetrator of sexual abuse.

18.	On 23rd November 2015, once her bail conditions had been removed, M attended A’s school.  This led to these proceedings being issued, with F and SM asserting that M was attempting to remove the child from the school.  

Findings sought

19.	F and SM seek the following findings:
(a)	In 2014-2015 A has displayed sexualised behaviour at home and at school.  They assert that this has included: “lifting up her knickers” whilst at school and in public; putting her hands down her knickers and touching herself in her genital area; spreading her legs and placing her younger brother’s head in between her legs and in her crotch area and taking her clothes off in public.
(b)	On 23rd July 2015, whilst on holiday A approached SM to give what she thought to be a hug, instead A placed her hand between SM’s legs and pushed her forefinger into SM’s vagina as she did this A said, “does this make you happy mummy?”  
(c)	A presents with concerning sexualised behaviour due to, or having been subjected to some form of sexual abuse and/or being a witness to inappropriate sexual behaviour
(d)	A made the following disclosures on 23rd-24th July 2015: 
(1)	When asked by F why she did as is described in (b) above A replied, “because its what happens to me, it’s what M does to me.”  A disclosure of digital penetration inflicted upon her by M.  
(2)	“When asked to stop M slapped my chest and told me to shut up”.  A disclosure of inflicted physical assault by M
(3)	“Mummy had threatened if she [sic] told anyone she would go to jail”.  A disclosure by the child of a threat by M to ensure that the child would not tell anyone.
(e)	At some point during 2014-2015 A has:
1)	Been subjected to one or more sexual assaults by M or someone else whilst in the care of M
2)	Been a witness to one or more incidents of inappropriate sexual behaviour by M and/or someone else whilst in the care of M
3)	Been subjected to digital penetration inflicted upon her by M and or someone else whilst in the care of M
4)	M has inflicted a physical assault upon the child by way of repeatedly slapping her chest.
5)	The child has been threatened by M and/or someone else to ensure the child would not tell anyone about the alleged abuse. 

Positions of the parties

20.	F and SM seek findings that M sexually abused A.  Notwithstanding the way the matter is pleaded on their behalf, neither suggested to me in evidence that anyone else perpetrated sexual abuse whether in M’s care or otherwise.  Nor did either of them suggest to me that A’s behaviour was due to witnessing sexual behaviour by M or anyone else whilst in M’s care.  SM seeks a Child Arrangements Order for A and states that she is in effect her primary carer, that she is the main person having contact with the school and that she needs Parental Responsibility to give necessary consent for school trips and events.  F supports her application.  The Applicants oppose the immediate removal of A and submit that if she is to be removed, she should firstly be permitted to live with F alone, who will vacate the family home for this purpose or secondly be placed with the Paternal Grandfather, F’s father, who I was told has attended Court today.

21.	M denies each allegation made against her.  It is her case that these are either innocent events which have been misconstrued or malicious allegations or a combination of both, made with the intention of depriving her of a relationship with A.  When asked in oral evidence M told me that she thought it was more likely to be a mixture of both.  She opposes the granting of a Child Arrangements Order in favour of SM and argues that it is neither necessary nor desirable for SM to hold Parental Responsibility due to the risk that this will lead to further marginalisation of her role in A’s life.  M supports the immediate removal of A to the Maternal Grandmother’s care.

22.	M, F and SM all agree to participating in an expert psychological assessment.  M and F consent to an expert psychological assessment of A being conducted.

23.	The Guardian submits, having objectively considered the evidence, that many of the findings sought by the Applicants cannot be made.  F and SM’s accounts are inconsistent, uncorroborated by independent evidence and contradicted by the unchallenged evidence of the school.  The Guardian is concerned about the use of CCTV monitoring in the home and the manner in which A has been treated within the home and questioned by the Applicants about what, on their case, are traumatic events.  It is submitted that although it is open to me to find that these are innocent events which have been misconstrued by SM against a background of earlier sexual abuse, that would not account for F’s attitude and behaviour.  It is submitted that should I find that there has been capitalisation of innocent events, or any maliciousness on the part of F and SM then this would give rise to clear evidence of emotional harm and that A’s immediate safety would demand removal from F and SM today. 

The Law

24.	The law in respect of findings of fact is well established and uncontroversial. The burden of proof lies with the Applicants.  It is the Applicants that bring the case and they have identified the findings they invite the court to make.  The burden of proving the allegations rests with them. All of the findings that they seek to prove are denied.

25.	The standard of proof is the balance of probabilities, as set out by the House of Lords in Re B (Care Proceedings: Standard of Proof) [2008] 2 FLR 141.  If I accept that the evidence relied on by the Applicants proves on the balance of probabilities that A was sexually and physically abused by M those facts will be established for the purpose of these proceedings and all future decisions concerning A will be based on those findings. I remind myself of the words of Lord Hoffman in Re B which apply to sexual and physical abuse as they would to any finding of fact:
 "If a legal rule requires facts to be proved, a judge must decide whether or not it happened.  There is no room for a finding that it might have happened.  The law operates a binary system in which the only values are nought and one."

26.	Any finding of fact in Children Act proceedings, and indeed in all civil cases, must be based on evidence.  As Lord Justice Munby (as he then was) has said in Re A (A child) (Fact Finding Hearing: Speculation) [2011] EWCA Civ 12: "It is an elementary proposition that findings of fact must be based on evidence, including inferences that can properly be drawn from the evidence and not on suspicion or speculation". I reminded myself of these words as I considered the evidence of F and SM in particular; suspicion and speculation cannot and must not form part of my analysis and decision-making.  In respect of all the lay witnesses I have seen I have kept in mind that people lie for many reasons and the provisions of a Lucas direction (R v Lucas [1981] QB 720); I refer to the direction that I must keep in mind from the Lucas case, namely that people lie for a myriad of reasons, not all of which are easily discernible, and that the fact that they have lied does not mean that it follows that they are responsible for the act or acts alleged.

27.	In this case, as in other cases of possible child abuse, I take into account all the evidence before me and consider each piece of evidence in context of all the other evidence as a whole.  As Dame Elizabeth Butler-Sloss, President observed in Re U, Re B (Serious Injuries: Standard of Proof) [2004] EWCA Civ 567 the court "invariably surveys a wide canvas". A point further amplified by her in Re T [2004] 2 FLR 838 at paragraph [33]:
 "Evidence cannot be evaluated and assessed in separate compartments.  A judge in these difficult cases must have regard to the relevance of each piece of evidence to the other evidence and to exercise an overview of the totality of the evidence in order to come to the conclusion of whether the case put forward by the Local Authority has been made out to the appropriate standard of proof." 

28.	The evidence in this case is largely based on four sources; the oral testimony and written statements of F and SM; the three ABE interviews of A on 1st and 2nd August 2015, the ABE interview of C on 2nd August and the mobile phone recording of A and SM created by SM.  There is little by way of corroborative documentary evidence, and no physical forensic evidence. The credibility of F and SM and of M is central to the case, together with A’s recorded disclosures.  I keep in mind that the demeanour of A, and, indeed, of the other witnesses, is only one part of the evidence and forms only part of the whole. 

Evidence

29.	During this hearing, I have heard evidence over the course of three days from SM, F, M and A’s Guardian.  I have read the bundle of documents filed for these proceedings and had access to the bundle of papers filed in the earlier care proceedings.  In addition to this, I have been able to watch the DVD recordings of the ABE interviews conducted by the Police with A and C and the recording taken by SM on her mobile phone of her conversation with A dated 25th July 2015.  I indicated that due to the potential consequences of my decision, which could include immediate welfare concerns for B on one hand and for A on the other that I wanted to hear from the Guardian.  Arrangements were made for her to attend Court on the third day and to give evidence following the evidence of M, which she watched.  She was able to attend on the first day and so heard almost the entirety of SM’s evidence.  She missed the second day due to other commitments but did see all of the evidence on the third day, which included F and SM being briefly recalled to comment upon the ABE interviews.  

30.	I give this judgment on the fourth day of the hearing, having heard submissions from counsel on behalf of each of the parties and having been updated as to developments since the evidence concluded; these are twofold:

(a)	SM had written me a letter overnight, which I have read and ensured that the other parties were able to read.  Within that letter she accepts that she “could have overreacted” to “her incident” with A.  She says, “in court it is made out that I treat A like an abuser, this is far from the truth”.  She states that the “abuse” is her issue to deal with and “is not a reason to punish F”.  She implores me to leave her family unit intact and accepts that they have all been affected by these events and should be permitted to undergo professional assessments with A in situ.  She accepts that they all need family counselling.  She refers to A as “my daughter” and invites me not to destroy her family.  She tells me that whether M has abused A or not she always welcomed a resumption of contact in her favour.  She states that if necessary, F will move out of their home to care for A alone rather than A be removed.   
(b)	Overnight A was given gifts from M and indicated that she wanted to speak to her.  She was permitted to speak to her for five minutes on the phone and thanked M for her presents.  It is agreed that this telephone contact went well.

31.	I am grateful to counsel for their submissions and to Miss Gregg in particular, who has contacted each relevant local authority to prepare them for the giving of this judgment.

32.	SM gave evidence over the course of a full Court day, tipping into a second.  She is the key witness to this hearing.  She is the only witness who can give a first hand direct account of what she says A did to her on 23rd July 2015.  She has provided her account in writing in three forms: a contemporaneous note made around an hour after the incident dated 23rd July 2015 and timed at either 6.32pm /6.52pm; a police witness statement dated 1st August 2015 and a Children Act 1989 statement dated 2nd January 2016.  During her evidence in chief she failed to confirm her police statement or contemporaneous note was accurate.  She told me that she had not read her police statement since she made it.  She also told me that she had not viewed the DVD recordings of the children in full nor read the transcripts of their evidence.  She told me that she had not watched the recording on her own mobile phone for a considerable period of time.  I invited her to read these documents and view the recordings overnight before she completed her evidence.  I enquired whether F had seen his police statement and the other materials.  He too told me he had not.  I invited him do so before giving evidence.  On the second day, SM confirmed that subject to three brief amendments she confirmed her police statement was accurate, I note that she had signed it at the time she made it on every page and that it contains an initialled amendment.  I permitted counsel to ask any further questions arising from this.

33.	Unfortunately neither F nor SM were able to view the recordings overnight and so I made clear that each would be recalled to confirm they had seen them before the conclusion of their evidence in the case, and before the M’s evidence, in order to permit questions to be asked in relation to those recordings.  They did this on the morning of the third day of the hearing.  Again I permitted counsel to ask any further questions arising from this. 

34.	SM told me in her evidence in chief that A was “great, amazing, fine, a typical princess”.  I got the impression that she was attempting to convince me that she had no difficulties with A at the commencement of her evidence.  She told me that A had not been happy going to contact with M.  She informed me that A “adores” her maternal great grandmother but that since the incident in July 2015 A has had no direct contact with any member of her maternal family.  She blamed this on the Police, other professionals and the Court and asserted that the cessation of all direct maternal family contact was as a result of her and F following the advice of others. 

35.	When asked to explain what she said A had done on 23rd July 2015 SM initially said “She came running over to me – she put her hand up my towel and put her finger up the walls of my vagina whilst saying, “Does this make you happy?”  Later in her evidence SM sought to correct her account of the 23rd July 2015 incident from one that A had inserted her finger into SM’s vagina to one that A had touched the outer lips of her genitalia.  She sought to explain this apparent inconsistency by saying that her understanding of “vagina walls” was that they were external.  This clarification only came after she was invited in cross examination to explain how a five year old child would have managed to insert a finger inside her during what she accepted was a “split second” incident and after it was highlighted that in her contemporaneous note, she had written A “tried to finger Mummy SM through her pants”.  This was one of a series of inconsistencies in her account.  She accepted that she calls trousers “pants” but insisted that at the time of the incident she was wrapped in only a towel and had no clothes on.  She could not explain the discrepancy in her contemporaneous note.  For this and a number of other reasons set out below, I am not satisfied based upon her evidence that the incident happened as she described. 

36.	SM admitted that she was hysterical after this incident and that A was also hysterical and had kept saying, “I’m sorry Mummy”.  She was able to acknowledge that A “mirrored” her hysteria.  C, she told me, was also hysterical and present in the room.  On any view this must have been a chaotic and distressing scene.  F suggests that A’s reaction, namely the degree of distress she exhibited was not something he had ever seen before.  He described her “breaking down” and said he took this as proof that she had been abused herself by M.  He could not recognise that A’s response may well have been due to SM’s extreme reaction, which he accepted was a unique event, coupled with his questioning of A.  I am satisfied that A’s response was as a consequence of SM’s distress and F’s questioning and does not in any way assist in determining whether she has been abused.  

37.	SM accepted that her contemporaneous notes, her police statement, and her Children Act statement are each inconsistent with the others in a number of respects, for example what she had been wearing, whether the child inserted her finger or not, which day of the holiday this had occurred on, how many times A had been questioned following the incident and how soon after the incident she had recorded A on her mobile phone.  She stated that where there were inconsistencies, her contemporaneous note would be more accurate.  Her explanation for her note not according with her oral evidence was her hysteria when she wrote it, her explanation for her Children Act 1989 statement not being a full and accurate account was that she was poorly represented at that time, wrote it herself and did not know what to put.  She attempted to tell me that she did not know that this statement would be put before a Judge.  I fail to accept this as a truthful answer – she accepted when I questioned her that she was at the hearing when her statement was directed by District Judge Greensmith and knew it was for these proceedings.  Her explanation for her Police statement not being accurate was that she had only “skim read” it and thought she was going to have a full ABE interview later.  The Police officer wrote the statement and not her, she said.  Overall I found her evidence to be contradictory and unsatisfactory in respect of the 2015 incident.  She repeatedly made excuses and sought to blame others for the inadequacy of her evidence.  Her evidence was unconvincing and far from cogent.  I cannot make finding (b) on the basis of her evidence.  

38.	I found several aspects of SM’s evidence deeply troubling.  She referred to A as having “abused her” and “attacked her”, that she “hated what happened that day” and has had to “block it out”.  At one stage during her evidence she became so distressed at having to recall the episode that she hyperventilated and the case had to be stood down whilst she was administered with First Aid.  SM views herself as the victim of sexual abuse at the hands of A.  She told me that A’s therapist is attempting to repair the relationship between her and A.  She told me “A’s therapist believes she attacked me” and is working with A on the basis that she “has been abused and is an abuser”.  She said prior to the incident she had enjoyed “cuddle time” on the sofa with A but after it she did not allow A near her.  This distorted thinking in respect of a then 5 year old child is highly concerning.  Her perception that A may pose a sexual risk to others in fact commenced prior to the July 2015 incident.  Before the holiday she told me that she had met with A’s school to discuss A’s “sexualised behaviour” she told me that she had expected the school to put in place safeguarding measures to protect the other children from A and was critical that they had not done so.  I was troubled to hear that F and SM have no less than eight CCTV cameras in and around their home.  F was asked by Miss Gregg whether these were installed due to concerns that A may abuse the other children in the household and whether they were installed after the holiday to Turkey.  He answered Miss Gregg and I in the same way “I can’t remember”.  I do not accept this as a truthful answer.  He told me that they had lived in the house 4 years; the events of July 2015 were just 9 months ago.  It beggars belief that he was simply unable to say whether they were installed before or after the holiday.  

39.	In so far as the findings sought in respect of A’s alleged sexualised behaviour, the only evidence I have in this regard is from F and SM.  M told me that she had never seen such behaviour.  I have the benefit of a report from A’s school, written by the Head Teacher dated 10th February 2016.  I note that at the top of the letter the school’s Ofstead ratings for two consecutive inspections are printed.  Both are “Outstanding”.  The report discusses A’s progress in the school since she started there in September 2014.  She describes A in the following terms:

“A is a lively happy little girl who clearly enjoys school.  Academically, she is working towards age related expectations for a child of her age.
During her reception year at school, her concentration span could be short and it was difficult to sometimes keep her on task for a sustained period of time.  As a result, she sometimes could distract others.  This is however not unusual behaviour for children of that age and is not considered by staff to be problematical.  It is certainly not the sort of behaviour that would justify the keeping of records….
The staff do not have any issues with A’s actual behaviour in school.  She has not received any behaviour sanctions and staff have not had any need to employ behaviour management strategies above and beyond those applied to all children…
I am aware of two minor incidents that have occurred during A’s time at [the school].  The first incident involved A cutting her own hair, which she explained was done whilst in the creative area.  The second incident involved A taking beads from class.
Staff however consider these disparate events to be the kind of minor issues that are routinely dealt with by school.
Her class teacher also recalls an incident last year when A was in reception class and she showed her knickers.  This was a one off incident which is commonly dealt with by primary schools and requires little more than a reminder of appropriate behaviour.”    

40.	This report from the school is accompanied by A’s school report and some handwritten recordings of meetings between F and SM and the school and M and the school.  Further evidence from the school is contained within the report prepared for these proceedings by Lancashire County Council dated 4th December 2015.  Again, no mention of sexualised behaviour is made.  The evidence from the school entirely accords with the evidence of M.

41.	Both F and SM were each highly critical of A’s school and teachers.  SM told me that she had registered a complaint with the Chair of Governors and that she did not think that they still held an “Outstanding” Ofstead rating.  Her complaint to me was that they had failed to keep accurate records of concerning incidents involving A and in essence did not take their safeguarding duties seriously and were not adequately trained to deal with safeguarding.  The evidence from the school paints a very different picture of A.  They say she had no behavioural problems; she has a very positive school report.  There is a significant mismatch between the evidence from the school and the evidence from SM about A’s behaviour.  SM does not seek to explain this by saying A is different at home than at school, she goes so far as to say that significant incidents that happened at school are not recorded.  SM’s interpretation of the incidents that have been recorded is that they are far more significant and serious than the school suggests.  She described the taking of beads as “stealing” and informed me that A had also “stolen” from Tesco’s.  When explored, this related to her eating pick and mix from the sweets counter.  She told me that A banged on the Head Teacher’s door.  Her evidence with regards to both these episodes was contradictory and confused.  On the one hand she sought to tell me that A had behavioural problems which the school were not properly acknowledging, on the other she sought to laugh off that A banged on the Head Teacher’s door and attempted to down play that her method of disciplining A for “stealing” was to take her back to the Supermarket to be spoken to by a Security Guard.  

42.	SM told me that the Police officer had a “quiet word” with her about threatening the children with going to “jail”.  Later on in her evidence she sought to change this to threatening them with the Police.  She accepted “jail was the same thing” when pressed.  She told me that she used this threat as A was afraid of the Police.  I am satisfied that A was afraid of the Police because of the threats that SM made and that the reason why A refers to jail in her disclosures is as a consequence of the threats made to her by SM.  These were words that SM had put into A’s mouth and not as a consequence of anything M had said. 

43.	The school informed Lancashire County Council for the purposes of their report for these proceedings that they have “no concerns with A’s behaviour within the school environment…The school cannot recall any instance of where they had concerns around A’s irritability or any instances of her leaving a classroom without permission to bang on the Head Mistress’s door.  The school can recall one occurrence in the autumn term of 2014 when A was seen to be showing her knickers, but when told not to do this she accepted that it was not appropriate behaviour.  The school say this is “typical” behaviour for a child of her age and something that some children do innocently.  Another child was also doing the same in a purely innocent manner.  Both of the children received an explanation that they should not be doing this.  There has been no other reported similar behaviour since.”  

44.	I found F’s evidence overall to be evasive and unhelpful.  Many questions were answered with “I can’t remember”, “I can’t recall”, “I guess”, and “It must have been”.  He avoided answering questions, on occasion simply saying, “I can’t answer that”.  I asked him repeatedly whether he thought a Prosecution should have been brought against M after he told me that he believed that she had sexually abused A.  He gave me different and contradictory answers.  He avoided giving me a straight answer.  I warned him during his evidence that I simply wanted him to answer the question he was asked truthfully.  Instead he appeared to spend much of his time trying to second guess why he may be being asked a question and tailoring his evidence in a way that may bolster his case that A had been sexually abused.  He could not identify that the way that both he and SM had questioned A might have been leading or suggestive of the answer.  Both F and SM sought to persuade me that it was the level of detail that A had disclosed that led them to the view that she had been abused.  When asked, each struggled to answer what that detail was.  

45.	As I have set out, the only evidence I have is about A’s alleged sexual behaviour is from F and SM.  Their evidence is uncorroborated by any independent evidence and is contradicted by the school reports and by M.  The school and M provide evidence that she has not displayed sexualised behaviour.  Only one incident occurred at school of A showing her knickers, another little girl of the same age had done the same at the same time.  The school had spoken to both girls and the episode was not repeated.  In their view it was an innocent act, in the context of these being very young children.  I reject any suggestion that the school have minimised this incident or that it represents sexualised behaviour.  It does not.  I have already described F and SM as wholly unreliable witnesses.  I reject their accounts that A displayed sexualised behaviour in their home.  She may well have pulled D between her legs on occasion but that should not be given any sinister interpretation.  She was five years old and he was two years old at the time.  This represents normal childhood behaviour.  I am satisfied that attempts to suggest this was sexualised behaviour by F and SM came from them, not the school, the Police or the therapist and was a further attempt to bolster their case against M.

46.	The evidence of the school has not been challenged.  No teachers were requested to give evidence or be cross-examined.  I note that the Head Teacher of A’s school has been a teacher for 25 years, a Head Teacher for 10 years and is a National Leader for Education.  I do not accept SM’s assertions that the school has failed to record or in some way minimised A’s behaviour.  I make clear that wherever there are discrepancies, I prefer the written evidence provided by the school and reported in the social work evidence.  I find that SM is exaggerating and fabricating incidents of behaviour by A which are not in fact happening in reality.  I am satisfied that SM’s perception of A is unduly negative.  She interprets A’s behaviour in a sinister way and has done so since long before the July 2015 incident.  This perception is undeserved and has led to A being unfairly treated.  The school report that A was becoming concerned that negative behaviour at home would have consequences for her at school.  The school felt it was outside their role to discipline her for behaviour, which was said to have occurred whilst she was at home, and suggested the use of a behaviour chart to F and SM.

47.	F and SM raised with the school concerns that A may have ADHD.  The evidence of the school is clear, “The school do not regard A’s behaviour as exhibiting signs of ADHD.”  F told me in evidence that he continues to fail to accept the school’s opinion that A does not have ADHD.  I find that F and SM lack the necessary understanding and skills to meet A’s needs and promote her emotional, behavioural and psychological welfare.  They fail to realise the harm that she has suffered as a consequence of the changes she has experienced in her life and blame all her incorrectly perceived problems upon her and M.  I am satisfied that they have each attempted to fabricate and exaggerate examples of A’s behaviour to bolster their allegations against M.  I do not make finding a).

48.	SM told me that in 2014 during a family holiday in Tunisia she was sexually assaulted by a male masseur.  She told me that she reported this assault to the Police and the individual was “lashed” as it was Ramadan.  This incident was only revealed by SM when she was questioned about information C gave the Police in her ABE interview.  Only then did she accept that C, then aged 8 years old, was made aware of what happened at the time and that the whole family had flown home early as a consequence.  She told me that she had had counselling following this incident and that the counselling had concluded before the July 2015 holiday but after what happened with A she had to restart her counselling.  SM perceives that she has been sexually abused in 2014 by this unknown adult male and then in 2015 by A.  The apparent link made by SM between these two incidents is deeply troubling and puts A at risk of very significant emotional harm within the household she shares with SM.  I am satisfied that the treatment of A, a young child, who is being brought up to believe, and is treated as though, she is a perpetrator of sexual abuse, falsely, within her own home represents significant ill treatment. 

49.	SM initially sought to give me a more favourable impression of her relationship with A than she latterly accepted.  As her evidence unfolded it became clear that her relationship with A is not a positive one.  She found A to be “defiant”.  She accepted using a behaviour chart that was filled mostly with crosses signifying bad behaviour.  She had repeatedly raised issues of concern that she had about A’s behaviour with the school.   C’s ABE interview is illuminating in this regard.  She describes A in the following terms: “Everybody says she’s really really cute ‘cause whenever they meet her.  And then I’m like nooo she’s well naughty.  She’s like the devil in disguise”, a “naughty, very naughty” child who upsets SM.  She describes A only attending two sessions of ballet as she was only allowed to go if she was not “naughty”, having to stay in the car on a family trip to Blackpool as she was “normally naughty in the car” and being ungrateful of what SM did for her and bought her.  She said, “She just does stuff on purpose to upset my mum”.  She described A’s behaviour as, on occasion, making SM “really angry and upset”.  

50.	Towards the end of SM’s evidence she described A as “extremely defiant” towards her and “nasty” towards her.  She said she doesn’t show gratitude and lacks appreciation of what she’s got.  She said she met A when she was aged 2 years and “even at that age she was defiant”.  In contrast, SM described C in glowing terms.  She said A was very different to C, that C sets a good example and got the highest scores in her grammar school.  Of C she said, “In 10 years she is the most exemplary child I could ever wish her to be”.  The contrast between her perception of her own daughter and A is a stark one.  I am satisfied that within F and SM’s  household A is characterised, unfairly, as a defiant and badly behaved child and punished accordingly.  The disparity between the way A and C are perceived by SM, their primary carer, is likely to lead to significant problems for A in terms of her identity and self esteem if this does not change.  I am satisfied that C’s perception of A is as a consequence of the views of SM and that she has been influenced to also view A in the most negative of terms.  This is emotionally harmful for not only A but C as well. 

51.	F and SM each sought to assert that A had been consistent in her disclosures.  Neither recognised that by: failing to make disclosures twice to the Police in ABE interview; initially denying touching SM at all, denying that anything had happened to her; saying that her teacher then a school friend had touched her and by telling Police in her third ABE interview that F and SF were both there when M touched her genitals, she had been in any way inconsistent.  It was only when A said that M had touched her genitals and hit her that they accepted that this was “the truth”.  Every other version given by A was dismissed or rejected.  When F and SM were recalled to confirm that they had viewed the ABE interviews they each told me that the first two interviews contained no disclosures as A was effectively scared of a police officer that she didn’t know and so “clammed up”.  Each sought to persuade me that the third interview contained genuine disclosures and each invited me to accept A’s account in that interview as the correct one.  Their zealous prosecution of M continued to the bitter end of their evidence.     

52.	Having listened to the audio recording made by SM I am not at all persuaded that A made any genuine or reliable disclosures.  The manner in which she was questioned was oppressive and highly suggestive, for example A is asked “So why did she hit you and punch you in the chest” …“Had mummy been drinking?”.  It is a distressing recording to listen to.  I agree with Miss Gregg’s submissions that SM’s manner with A is “brutal”.  I reject any suggestion that F and SM should be excused on the basis that they lack professional training or experience of how to deal with these matters.  This was not the way that loving, caring parents ought to behave towards a young child, who on their case had suffered a significantly traumatic event.

53.	The recording is riddled with leading questions.  The tone that SM adopts is aggressive.  A is heard to be evidently distressed.  SM admitted to me that she was still angry at the time the recording was made.  I remind myself that this recording was taken not the following morning after the incident but the day after that.  It is concerning that SM remained so angry for so long and that she is clearly directing her anger at A.  During the recording SM says, “So why did you say to daddy, F that it was all lies a minute ago?  What were you scared of?”  I am satisfied that SM’s account of how this recording came to be made is not a truthful one.  It is clear from the recording that “a minute” before the recording started A had told F that nothing had happened to her.  SM told me this was not the case.  I reject her account.  I’m satisfied that A was told to “tell the truth”, and to give the version they wanted her to give, namely that she had been sexually abused by M.  No other version of events satisfied them.  F told me that he questioned A in the same way as SM when he spoke to A.  The way that A was questioned was in my view emotionally abusive and renders any subsequent disclosures by A as unreliable.  I do not make finding (d).  

54.	I find that F and SM repeatedly questioned A in an oppressive and callous way from 23rd July 2015 until their return to the UK a week later.  I base this finding upon the evidence of C who freely informs the Police that A was questioned every day.  She says that during the questioning A would often deny what was put to her.  She says that A was told by SM that if she did not “tell the truth” she would “put people’s lives in danger”.  I am satisfied that this regime of questioning only ceased when A told the story they wanted to hear – that she had been sexually abused by M.  

55.	Having viewed A’s ABE interviews and read the transcripts I am not convinced that the third interview provides any disclosures of sexual abuse upon which I can rely.  These were poorly conducted ABE interviews, with several leading questions being asked in each.  The Guardian told me that she has had ABE interview training and in 12 years of social work these are the worst that she has seen.  She agreed with me that it is surprising that given A’s age no Intermediary was used and that there was no use of visual aids, dolls or other props made available.  She told me that in her view these were not child focused interviews, there being limited opportunity for the child to talk and that in her view it was abusive to carry out three ABE interviews in respect of a 5 year old child in what was effectively little more than a 24 hour period.  I agree with all of the Guardian’s observations.  

56.	 In respect of the third ABE interview, again, I am satisfied that F and SM sought to mislead me about how this interview came about.  I am satisfied having watched A that her third interview came about as she told the officer it did.  She had completed her second, and what the Police had told F and SM would be her final interview, and made no disclosures.  They were told that since she had made no disclosures she would not be interviewed a third time.  The family left and then returned shortly afterwards.  In the intervening period I am satisfied that A was, as she said, crying and that she was made to cry by SM telling her she had not told the truth and would not get sweets as a consequence.  Effectively I am satisfied that A was forced to return and prompted to give “the correct” version of events.  The version that F and SM wanted her to say, namely that she had been sexually and physically abused by M.  I find that this episode was significantly emotionally abusive.

57.	C was “reminded” what to say by SM in her ABE interview.  Both A and C describe SM telling C what to say.  A’s account is “Mummy said to C… Mummy M touched my bits” whilst C says about SM, “Well she said not to worry ‘cause they are really nice and she said its gonna be okay ‘cause she … just begin, tell them all about it, and she gave me some hints erm.. what to say…. Then she would say like if I didn’t remember something she would remind me what would have happened”.  I am satisfied that C was told what to say about the 23rd July 2015 incident during her ABE interview by her mother.  I am satisfied that by enlisting C, a 10 year old child, to give evidence to the Police in support of her false claims of sexual abuse against M, SM has caused C emotional harm and jeopardised the relationship between A and C. 

58.	Contrary to SM’s assertion in evidence to me that she simply wanted reassurance from the Police and now wants me to decide what has happened to A, I am satisfied that she has sought to engineer the evidence in such a way so as to prove that A abused her and was abused by M. 

59.	I am not satisfied that A did anything other than innocently touch SM in the context of a family game which consisted of the family tickling each other.  Both the contemporaneous note created by F and SM, and A’s ABE interview refer to this game being played.  The note states that what A did was set in the context of the family playing that game immediately beforehand, as follows “A was playing tickle with the whole family when she tried to finger Mummy Cat...”  

60.	Despite the context of this game, SM fails to recognise the innocence of the event.  I make clear that A is not an abuser.  She did not attack or abuse SM.   A does not pose a sexual risk to other children or adults.  I am satisfied that SM’s perception of the events of 23rd July 2015 is grossly distorted.  Her perception may have been influenced by the events of her 2014 holiday, whether that is the case or not she ought to appreciate that a 5 year old girl is not culpable in the way she suggests.

61.	In so far as SM is concerned, the way that she perceives A is deeply concerning and emotionally harmful.  She misinterprets ordinary innocent behaviour as bad, “nasty” and sexualised.  This may be because her perception of A is as a result of genuinely held but distorted beliefs, it may be that this represents a more calculated attempt to set A aside as a “naughty” child.  To ascertain this, expert psychological assessment of SM is required.  I am satisfied that there is a combination of distorted perception and malicious behaviour at play in so far as SM repeatedly seeks to blame the child and M for the behaviours that she exaggerates and distorts.   

62.	In so far as F is concerned, I am satisfied that his motivation is simply to punish M and use any example he can to thwart contact and prevent M seeing A.

63.	I heard evidence from M on the third day of the hearing.  I found her to be a credible and straightforward witness.  She gave direct answers to questions, she acknowledged her own past failings and that she had been difficult with F about contact arrangements in the past.  She accepted that she did not trust or like F or SM.  She categorically denied the allegations that she had sexually abused A.  She described the devastating effects of these proceedings upon her listing the impact upon her mental health at having to be arrested and interviewed, the removal of B from her care for several months, the cessation of contact with A, the ending of her relationship with SF as a consequence of the stress of the proceedings.  She gave her evidence in an appropriate and measured way, with demonstrable distress as she spoke about B and A.  She told me in some detail, at my request, of the ongoing investigation into her physical health and potential diagnosis of Multiple Sclerosis.  I did not gain the impression that her distress was as a result of self-pity.  She spoke with clarity and informed me that she had given the potential consequences of my decision thought, it was evident that she had done so.  I invited her to tell me what her plan was if I made the findings against her, she told me with understandable distress that she would vacate her home to allow SF to stay in it caring for B.  She told me she had discussed and agreed this with him.  I asked her what her take on the allegations were, whether she thought this was innocent misconstruing of events or a malicious attempt to sever her relationship with A.  M’s view was a combination of both.  Innocent events had been misconstrued and used as an opportunity to end her contact.  I asked her whether, if I were to find that matters were as she saw them, she would be content for A to remain in the care of F and SM and if not, where A should live.  I was impressed with her answer.  She told me she would be uncomfortable with A staying where she was, she was measured in this response and I did not detect undue bitterness.  She told me that although she would like A to live with her, she accepted that that could not happen immediately due to A’s current situation.  She suggested that A could live with her Mother, the Maternal Grandmother or the Paternal Grandfather in the interim.  She told me that she had discussed this with the Maternal Grandmother, who would have A “in a heartbeat”.   I do not accept that unsubstantiated police referrals relating to historical incidents which were put to M in cross examination establish that she lacks credibility or that she is a someone who fabricates incidents, drinks to excess or is violent.  I have no evidence to make any such findings.  Nor do I accept that what M may have did or said when acutely unwell at the time of A’s birth gives rise to any propensity to cause physical or sexual harm.  I reject any suggestion that her mental health difficulties, which I am satisfied on the updated evidence I have are much improved, bear any relevance to the central issues of fact that I am asked to determine.    

64.	As set out in the background section of this judgment, A has encountered a series of significant changes in her life.  Her parents have been in litigation and disagreement about her care and contact arrangements since she was two months of age.  She has had to adjust to new step parents and new siblings.  It is not at all unusual that she may from time to time have presented as challenging towards her step mother and to seek to play off each “mummy” against the other.  M was able to recognise this.  In the context of what has been a bitter dispute between her parents, a lack of communication and trust between the adults in her life, this is not only understandable but to be expected.  Each parent and SM must bear some responsibility for the emotional harm that has resulted to A from their ongoing dispute about her.  I accept M’s evidence that the parents have continued to be in dispute about contact arrangements since she was two months old and that this continued after May 2015, I reject F’s account that there were no further issues after the consent order was lodged in May 2015.  I am satisfied that A has suffered significant harm due to this dispute.  

65.	It is the lack of insight into A’s behaviour, the lack of understanding by SM in particular, that causes such concern.  F appears to have simply adopted whatever SM has said.    Neither F nor SM have demonstrated any understanding or insight into the harm that their actions have caused to A or remorse for the devastating consequences of their actions as far as M, B and SF’s lives are concerned.

66.	I have two written reports from A’s therapist, dated 3rd December 2015 and 24th March 2016.  Both reports describe the extent of the emotional harm that A has suffered – namely that she regressed in some sessions and frequently alternated her play between being a baby, a toddler and her chronological age; that she presented as fearful and anxious and extremely clingy towards her father, that she has shown aggression towards baby dolls, that she has requested that the therapist become a doctor in role play and has said “I just want you doctor to make me better”, any family pictures by A only depict her father and herself; she makes no comments about her mother.  In their opinion she is a “vulnerable child [who] is extremely confused, anxious and fearful”.  They record that she has shown improvements as their work progressed and is now more settled.  The Guardian told me that when she met A on 5th April 2016 she was concerned that A failed to mention B when asked to list her siblings and did not mention her mother.  It is her opinion that A is suffering from separation anxiety.  I am satisfied that these professional observations of A are accurate and provide further evidence of the significant emotional harm that she has suffered.  

67.	I dismiss all of the findings sought by F and SM.  I am satisfied that M did not sexually abuse the child, that she did not physically abuse the child and that A did not sexually abuse SM.

Legal Framework in respect of welfare decisions

68.	In relation to the welfare aspects of the case I remind myself that the welfare of A is my paramount consideration. That is section 1(1) of the Children Act 1989.  In considering what orders to make I have regard to the Welfare Check List found in section 1(3) of the 1989 Act.

69.	 In relation to the threshold criteria of section 31(2) Children Act 1989 I have regard to whether I am satisfied that A has or is at risk of suffering significant harm.

70.	In considering making an interim care order I have had close regard to the Article 6 ECHR and Article 8 ECHR rights of M, F and SM and of A, but I remind myself that where there is tension between the Article 8 rights of the parent, on the one hand, and of the child, on the other, the rights of the child prevail; Yousef v The Netherlands [2003] 1 FLR 210.

Welfare analysis

71.	I am extremely grateful to the Guardian for her oral evidence in this matter.  I invited her to give me her opinion on the immediate welfare implications in respect of each potential outcome of my fact finding judgment, prior to her being aware of the findings I would make.  I found myself agreeing with each aspect of the evidence that she gave.  She reaffirmed my thinking with regards to the consequences of my decision, whichever way I decided it.

72.	On the basis of the findings that I have now made, I accept and adopt the professional opinion of the Guardian and make welfare decisions as follows:
(c)	The therapist should cease its work with A immediately and will be permitted only a “goodbye visit” to allow A to conclude her relationship with them.
(d)	A’s immediate safety demands that she is removed from the care of F and SM today as a consequence of the significant emotional harm that they have perpetrated.  A shall be removed from their care under the auspices of an Interim Care Order and placed with the Maternal Grandmother, subject to a written agreement.  I have the benefit of an up to date assessment of the Maternal Grandmother by the local authority and am aware that she was positively assessed to care for B for several months last year, and to supervise M’s contact with A.  I am satisfied that placing A with her maternal grandmother is a proportionate and necessary step to safeguard her welfare and promote her relationships with her family.  It is by far the preferred option above a removal to foster care, which must only be sanctioned as a last resort.  I do not consider that a placement with the Paternal Grandfather is a viable option at this stage.  I was told just minutes before handing down this judgment, that having reflected on his position over the short adjournment he could not care for A in the interim in any event.  Full assessments are required of all members of F and SM’s  family who wish to have care or spend unsupervised time with A, in order to ascertain whether they accept the findings that I have made and can protect A from F and SM.  I accept that removing A from F, the person who has cared for her for the majority of her life, will be disruptive but when I balance the harm she is likely to suffer in his care against the harm of such disruption I am unhesitatingly of the view that a removal from his care is a necessary and proportionate step to safeguard her welfare.  I direct that A is to be removed from school today and that the school are to be informed that she must not be collected by anyone other than a social worker and/or the Maternal Grandmother. 
(e)	I direct that Bury Metropolitan Borough Council shall file and serve a s.37 Report in respect of A.
(f)	I direct that Lancashire County Council shall file and serve a s.37 Report in respect of C and D.
(g)	I disclose a copy of this judgment to each local authority for the purposes of preparing those reports.
(h)	 I direct that F and SM shall only be permitted to have supervised contact with A, supervised by the relevant local authority.  C and D should join this contact.  Assessments in respect F and SM will need to be carried out by the local authority in terms of future care and contact arrangements. 
(i)	M’s contact with A will recommence over the course of the next fortnight.  It will be unsupervised.  The Guardian herself will undertake the necessary work to reintroduce them.  B and the rest of the maternal family will be reintroduced in the same time frame.
(j)	A psychological assessment of F and SM, A and M is required and I direct such an assessment takes place and is filed within the next 8 weeks.  I will approve the identity of the expert and letter of instruction on the basis of a Part 25 application to be made by the child’s solicitor to me administratively.  I expect this to be a joint instruction, led by the child.  
(k)	I will list an IRH in respect of the welfare aspect of this case before me in 3 months’ time.  This hearing will be vacated in the event that care proceedings are issued in respect of A.

73.	I make an Interim Care Order sanctioning the immediate removal of A from the care of F and SM for the following reasons: I am satisfied that following an innocent tickling game, and oppressive and leading questioning, F and SM have manufactured a case that A has been sexually abused by M.  They have deprived A of a relationship with any member of her maternal family for nine months, thereby causing her significant emotional harm.  They have taken her to attend therapy on the basis that she has been sexually abused and is an abuser.  The way that A has been treated by SM in particular, both before and especially after July 2015 is emotionally abusive.  I am satisfied that A has suffered very significant emotional harm in the care of F and SM and that the threshold criteria for the making of an Interim Care Order pursuant s.38 Children Act 1989 is met.  I am satisfied that A’s immediate safety demands that she is removed from the care of F and SM today on the basis of the findings I have made.  I do not consider that A can be safely cared for in the interim by F alone, he has caused very significant emotional harm by fabricating and manufacturing a false case of sexual abuse against M and has failed to protect A from the false and distorted beliefs of SM that A has abused her.  I make an Interim Care Order for a period of 8 weeks in favour of Bury Metropolitan Borough Council alongside a s.37 Report, which I direct it to complete.

74.	For the reasons set out within this judgment I am satisfied that it is not in A’s best interests for SM to have Parental Responsibility for her and I dismiss her application for a Child Arrangements Order.