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TB v DB [2013] EWHC 2274 (Fam)

Fact-finding hearing of a mother’s allegations against a father of violence and failure to protect their child from abuse. Allegations not found.

The father of a 5-year old boy applied for a residence order. The parents of the boy had been married for four years but on separation the mother had taken the boy to live with her, with the father having to apply firstly to discover her whereabouts and then for contact with his son.

As part of the application, a fact-finding hearing came before Michael Keehan QC. The allegations were all set out in a composite Scott Schedule.

The judge considered the law he needed to apply, and noted that consequent on Re B (Children) (Care Proceedings: Standard of Proof) [2008] 2 FLR 141, he should apply the simple balance of probabilities test.

At a hearing in April 2010, eight months after the mother had left the family home, contact, initially supervised, was ordered. The recital to the order noted that the parties agreed that a fact-finding hearing on the mother's allegations was not necessary since the mother's concerns were not about the relationship between her and the father, but about the risk posed by a paternal uncle to the child. The paternal uncle was on the Register of Sex Offenders on account of a conviction in 2009 for kissing a girl under the age of 13 in public. At a later hearing, the father gave an undertaking that this uncle would not attend any contact.

The father's direct contact started in June 2010, and in October 2010 a contact schedule was set out which would lead to him having unsupervised contact in January 2011. A month before that contact, the mother alleged to police that she was suffering serious ongoing violence from the father. A s.47 investigation followed and contact continued to be supervised.

By June 2011, with the child now represented by a Guardian, an order for overnight staying contact was made, with a recital that supervision of contact was no longer necessary. At a final hearing in January 2012, a shared residence order was made, with the intention that neither parent would have priority or primacy over the other.

Following an extended period of staying contact in April 2012, at the end of which there was dispute between the parents as to the date on which the child should be returned, the mother made a report to police of domestic violence. On receiving this allegation, social services informed the mother that the threshold for their involvement was not met. In the following days, both the mother and a friend of hers gave recordings of conversations that they had had with the child to police which they said were suggestive of sexual abuse by the uncle. On both occasions, the mother and her friend were allegedly prompted to record what the child said by the child enquiring as to whether the mother was going to get into the bath with him. 

The mother then made a further report to the police that the child had said that his uncle had been giving him baths and staying overnight. Having been asked by police whether she had any evidence of this, the mother produced a further recording to this effect.

The mother invited the court to make findings of aggressive behaviour by the father, but also to make findings that the child was sexually abused by his uncle and not protected by the father. The father sought that the court should make findings as to whether the allegations were true or not.

The judge heard evidence from the parties, witnesses and from two police officers. He did not find the mother a reliable witness and, in respect of all 16 allegations against the father, found that she was inaccurate or lying. In respect of the allegations against the uncle, he also found that the mother was lying. He was critical of ABE interviews that were conducted with the child which permitted the mother to tell the child to tell the officers what had been said to her.

The judge found that the mother's actions were part of a concerted and long-standing campaign against the father.

Summary by Gillon Cameron, barrister, 14 Gray's Inn Square
______________________

This judgment is being handed down in private on 25th April 2013. It consists of 13 pages and has been signed and dated by the judge.  The judge hereby gives leave for it to be reported.

The judgment is being distributed on the strict understanding that in any report no person other than the advocates or the solicitors instructing them (and other persons identified by name in the judgment itself) may be identified by name or location and that in particular the anonymity of the children and the adult members of their family must be strictly preserved.

Case No: FD 09 P 02249
Neutral Citation Number: [2013] EWHC 2274 (Fam)

IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION

Royal Courts of Justice
Strand, London, WC2A 2LL
Date: Thursday, 25th April 2013

Before:

MR. MICHAEL KEEHAN QC
(Sitting as a Deputy Judge of the Family Division)
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Between:

TB Applicant

- and - 

DB Respondent
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Digital Transcription of Marten Walsh Cherer Ltd.,
1st Floor, Quality House, 6-9 Quality Court, Chancery Lane, London WC2A 1HP
Telephone: 020 7067 2900    Fax: 020 7831 6864    DX: 410 LDE
Email: info@martenwalshcherer.com
Website: www.martenwalshcherer.com
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MS. RHIANNON LLOYD (instructed by Messrs. Rowberry Morris Solicitors) for the Applicant
MS. LOUISE BROWN
(instructed by Messrs. Johal & Co.) for the Respondent
MR. ROBERT LITTLEWOOD
(instructed by The Co-operative Legal Services) for the Guardian ad Litem
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Judgment
MR. MICHAEL KEEHAN QC:

1. I shall direct that a transcript of this judgment is prepared at the joint expense of the parties.

2. In this matter I am concerned with one child, D.  D was born on the 25th August 2007 and is therefore five years of age.   His father, the applicant in this matter, is TB who is 57 years of age.  His mother, the respondent, is DB who is 52 years of age.  The parents were married on the 22nd October 2005.  Two years later D was born.  Sadly, the parties separated on 29th July 2009 when the mother left the former matrimonial home with D.  She stayed, as I understand it, for a short period of time with relatives and then in four successive refuges before settling where she now lives in Cambridgeshire. 

3. The father lives with the paternal grandmother in London.   He has one brother who features in this particular matter, SB.  Consequent upon the mother's departure from the former matrimonial home, the father made an application to discover there whereabouts and to achieve contact with his son, which was issued on the 6th October 2009.  Sadly, it was not until the 29th April 2010 that an order was made for the father to have direct contact and the first visit between father and son took place on the 12th June 2010.

4. In my judgment D is, in many ways, a very lucky little boy.  He has two parents who plainly and obviously love him very deeply indeed.  Both of them, in their respective evidence, spoke very warmly and movingly of their son; the father describing him as a "dream child", an intelligent, happy, lively young boy.  

5. This matter is listed before me this week, first, to conduct a fact-finding hearing on the basis of allegations set out in a composite Scott Schedule of March of this year (at D384 in the bundle) and thereafter and consequent upon the judgment in the fact-finding hearing, to conduct the welfare hearing and determine where D's residence should be.

The Law
6. For the purposes of this part of the hearing the only issue of law is the question of the standard of proof that I must apply before making findings of fact.  Consequent upon the case of Re B (Children) (Care Proceedings: Standard of Proof) [2008] 2 FLR 141 I apply the simple balance of probabilities test.  

7. During the course of this hearing I have heard oral evidence from the mother and the father; from the mother's friend, JN; and the father's brother, SB; from two police officers who investigated various allegations, Detective Constable Smith from the Metropolitan Police and Detective Constable Sutcliffe from the Cambridgeshire Police; from a Mr. Muchekeza, a social worker in Cambridgeshire; and solely on welfare issues at this stage, from the Children's Guardian, Ms. Beth Coulthard.

8. The background to this matter is set out fully in an agreed chronology, for which I am grateful to counsel and part of which I shall read into this judgment in a moment.  But the issues are starkly and succinctly set out by the Guardian in her last report of March of this year at F187 to 188 of the bundle where she says:

"6. A finding in favour of DB would show that D has been exposed to sexual harm, physical chastisement, conflict within the father's home and recent domestic abuse by the father of the mother.  Significantly, such a finding would [show that] TB failed to protect D, deceived the courts and CAFCASS and paid no heed to court orders.   TB's allegation that DB has made and repeated untrue allegations of serious domestic violence not being found, would raise concerns as to the impact of these long-standing issues on mother and D.  



8. TB asserts the mother made false allegations against him and his family concerning domestic violence, his alcoholism and threats to abduct D that she repeated to agencies in order to curtail contact.   He maintains her latest allegations, that he permitted the sexual abuse of D by his uncle, were made by DB 'knowing them to be untrue and/or with the express purpose of stymieing the relationship between father and son'.  He further alleges that D was recorded, questioned, coached or prompted to make false allegations against his family."

9. As I mentioned a few moments ago, it was not until the 29th April, after the mother had left the family home in July 2009, that contact was ordered, first of all, indirectly and then to commence directly at a Contact Centre.   There was a recital to that order which reads as follows:

"And Upon it being recorded that the parties agree a fact-finding hearing on the respondent mother's schedule of allegations is not necessary as the mother's concerns are not regarding the relationship between herself and the applicant father but rather the risk posed by the paternal uncle and whether the child could be adequately protected from that."

10. The mother, prior to that hearing before District Judge Aitken, had filed a statement dated 1st March (D133 in the bundle) and subsequently a Scott Schedule dated 22nd March (D182 in the bundle).  The father had his first direct contact, as I have mentioned, on the 12th June 2010.  There were throughout the latter part of 2010 further hearings relating to the father's contact where undertakings were given by the father either that he would not consume alcohol preceding contact or an undertaking that his brother would not attend any contact.  

11. In the order of the 18th October 2010 a programme was set out by District Judge Aitken which would lead to the father having unsupervised contact in Cambridgeshire on the 22nd January 2011.   However, just a month prior to the first unsupervised contact taking place, on the 15th December 2010 the mother made contact with the Cambridgeshire Police making allegations against the father that she was suffering serious ongoing violence from him (I74 in the bundle).   The police referred the matter to Social Services.   A section 47 investigation was undertaken.   At a subsequent hearing on the 23rd December it was ordered that further contact by the father should be supervised.

12. On the 15th February 2011 District Judge Aitken ordered that D be joined a as party to these proceedings and a Guardian was appointed.   That was Ms. Coulthard who has remained the Guardian throughout.   On the 29th March 2011 the mother made an oral application at court for the removal of the Guardian.   That was refused.    On the 20th May 2011 a letter was received from Social Services making it plain that they had not been made aware by the mother of an undertaking given by the father in the order of 18th October 2010 as to SB, his brother.

13. On the 8th June 2011 at a further hearing before District Judge Aitken and upon the court recording a recital that supervision and support of contact was no longer necessary, a scheme of contact was set out for all visiting contact between D and his father culminating in the start of overnight staying contact on the 13th August 2011.  Happily, that overnight contact took place.

14. There was a further hearing then before District Judge Aitken on the 20th October 2011 which culminated in a final hearing before the District Judge in January 2012.   On that occasion the court made D the subject of a shared residence order, the intention being that neither parent would have priority or primacy over the other and, as the Guardian told me in evidence today, so that in the future it was hoped the father would not been marginalised by the police or by Social Services if there were to be further allegations or incidents which required their involvement.

15. Pursuant to that order, D had an extended period of staying contact with his father between the 6th and the 15th April 2012.  It is of note that during the course of her oral evidence the mother told me that during the period of that staying contact she had a feeling that something was not right.   There was an issue between the parties about whether D should be returned on the 12th April on the mother's case or the 15th April on the father's case.   As it was, he was returned on that latter date.  Coincidentally, just two days later, on the 17th April 2012 the mother made a report to St. Ives Police Station re an allegation of domestic violence.   A referral was made by the police to Social Services.   On the 19th April Social Services concluded and notified the mother that the threshold for their involvement was not met and, accordingly, the matter would not be taken further. 

16. Two days later, on the 21st April, the mother alleges that when D was in the bath at ten o'clock on a Saturday morning he asked her (the mother) to get into the bath with him.  This, apparently, so troubled and shocked the mother that, on some pretext, she went downstairs to get her mobile phone and then to record what was purported to be a conversation between her and D.    The transcript of that tape-recording is set out in the bundle at E326.  It is perfectly plain from reading that transcript that D was subjected to persistent questioning and direct questioning by his mother and when, as part of that, the child was asked who bathed him or who was in the bath with him, when it was put to him that it was SB, the child said, "No", but the mother persisted.   It was then suggested by the mother that D had said that he had "wetted SB K's thing" which transpires on re-listening was not what he said.   He had said that he had "letted SB K's sink" which obviously makes no sense at all.

17. Two days later, the mother and D are at the home of a friend of hers, JN, when it is said by JN, when she was bathing D and her two children, that D asked her whether his Mummy was going to get in the bath with them.  This, apparently, so shocked JN that she called for the mother, asked for her phone and proceeded to tape-record a conversation with D.  For whatever reason, that conversation either did not properly record or, by an oversight of DC Sutcliffe of the Cambridgeshire Police, was never sent to the High Tech Unit for retrieval.  She asserts that during that conversation D spoke of secrets that he had with his Daddy and of bathing with his Uncle SB.  

18. JN's evidence, I mention at this stage, was extremely troubling.  She gave evidence with a high degree of passionate fervour that what D had said to her was evidence of sexual abuse and was true.   She told me that she was absolutely 100% certain that what D had said was right. She could not explain what it was by D asking whether mummy was getting in the bath that so alarmed her and so shocked her that she asked for the mother's telephone to record the conversation.   Moreover, she denied, when asked, that the mother had discussed with her either the events of the 21st April or had told her of other matters that were of concern to the mother about D and having contact with his father.  

19. I regret to say I simply do not believe JN.   I do not believe and I do not accept that somebody could have reacted so strongly to that apparently innocent comment from a little four year old unless she had been told something of the history and put it into a sinister context.  What is even more alarming is, not content with recording D on that occasion, she then took the opportunity on unspecified further occasions to question D about what his uncle had done or what had happened to him so, as she put it, she could be satisfied that what he was saying was true.   One can only imagine the potential harm that was done to this little boy with that sort of ill-informed, unregulated and "aggressive" questioning.

20. On the 24th April, the following day, the mother again went to St. Ives Police Station this time to report that the child had said that Uncle SB had been giving him baths and staying overnight.   The mother was asked whether she had any further evidence.   It can be no coincidence that the following day the mother records a further conversation with the child.   The transcript of that conversation is to be found at A326 of the bundle.   This was a much longer conversation than that of the 21st April.   It lasts about 10 minutes.   I was invited to, and carefully listened to both the recorded conversation of 21st April and the 25th April.   The following day, the matter was referred by the police to Social Services.   The mother did not permit the court ordered contact to take place between D and his father at the end of April.

21. On the 1st May she telephoned the local police station and repeated her allegations.  Father made an application to enforce the residence order.  The matter came before the court on the 4th May.  The father did have contact on the 9th and 13th May but that was then suspended effectively.  It certainly did not take place until the 3rd August.  On the 8th May and the 17th May the mother went back to the police re-stating her allegations. 

22. On the 23rd May, so a month after it is said that D had first spoken of having a bath with his uncle, a preliminary interview prior to an Achieving Best Evidence video interview was undertaken by Detective Constable Sutcliffe of Cambridgeshire Police and Mr. Muchekeza of Cambridge Social Services.   I shall return to consider the conduct of that interview in a few moments.

23. On the 19th June SB was arrested by the police and interviewed.   He was further interviewed on the 3rd August 2012.   As Detective Constable Smith told me in evidence (for it was he that conducted the interviews) he was satisfied with the denials made by TB about allegations that he had bathed with or otherwise sexually abused D and, in discussions with his superior officer, a decision was made not to refer this matter to the Crown Prosecution Service.   I was told and accept that the mother was not told by the Metropolitan Police that the matter had been or was being referred to the Crown Prosecution Service, but it appears that at a court hearing on the 7th July 2012 the mother told the court that the police had referred the matter to the Crown Prosecution Service.   That was plainly wrong and untrue.

24. On the 18th September 2012 the matter was before District Aitken once again.   The matter was transferred to the High Court.   Directions were given which culminated in this hearing before me.

25. Going back into the further past, the mother has made allegations at various times that she was the subject of violence at the hands of the father and at the hands of SB.  Curiously, as I shall refer to in a moment, those allegations have either not been made in statements but have subsequently been reported to the police or to the Local Authority or earlier allegations have increased in severity from that first reported.

26. In the light of the fact that these allegations have been made by the mother and have been in recent years repeated by her, notwithstanding the recital to the order of the 29th April 2010, the father invites me to make findings on whether the allegations made by the mother against him and his brother are true or are not true.   The mother invites me to make findings against the father of more recent aggressive behaviour but, far more seriously, invites me to find that D was sexually abused by his uncle and that the father failed to protect his son and allowed that abuse to occur.   I should also add the mother told me in evidence that in February 2012 D apparently told her that he and his Uncle SB had kissed and cuddled on the paternal grandmother's bed.

27. SB is plainly a troubled man.   It is plain that he has suffered very real difficulties in his life including drinking alcohol to serious excess.   It is plain that in the years gone by during the currency of the parent's marriage, up to but shortly before their separation, he caused very real problems for his mother, for his brother and for his sister-in-law.   He has a conviction in 2009 of kissing a girl in public under the age of 13.  He is therefore on the Register of Sex Offenders and is managed by Jigsaw in the community.  Detective Constable Smith and Mr. SB told me of how he has strategies in place to ensure that he maintains his Jigsaw conditions and does not commit like offences against children again which, for example, included when visiting his mother at the family home where there is a school nearby, he (a) ensures that he does not go when the children are going to school or leaving school and (b) he telephones his mother to ask if he may visit and then telephones to say he has arrived.  These allegations made against him in relation to the sexual abuse of D have affected him very greatly.   He told me, and I accept, that it led him to become depressed in July of last year for which he required medication.   His vulnerability was evident as he gave evidence before me.  He did so in a somewhat guarded manner.  That, in my judgment, is accounted for by the effect of these allegations upon him and not for any other underlying reason.

28. The father gave evidence before me.  He gave it in a manner which might be characterised as somewhat pedantic but precise and paying careful attention to detail.   It was plain that he loves his son deeply.   He was clear in his denial of any physical abuse of the mother and clear in his denial that his brother, SB, would have had any opportunity to have abused D as alleged.  Ms. Brown, on behalf of the mother, prays in aid police notes where it would appear the father has, who was at the time undertaking a doctorate, passed himself off to the police as a doctor.   The father does not necessarily accept the account set out in the police report.  Even if they are true, they are examples of self-aggrandisement on his part and do not, in my judgment, otherwise undermine his credibility.   I agree with the Guardian's analysis and view of the father; that he is very thorough, he is straightforward and he is reliable.  In my judgment, in relation to the areas of evidence relevant to the issues I have to determine, I found the father to be a credible and reliable witness. 

29. I very much regret to say I do not form the same view about the mother.   It is plain that she was extremely anxious and emotional.   In my judgment, she was all too ready to assume and to interpret the events with the worst possible connotation.  I also find that by her actions of making allegations to the police and the Local Authority from time to time, whether in December 2010 or in April last year, her purpose and intent was to stop, disrupt and minimise the father's contact to D.  I do not understand why at this hearing in her evidence she alleged she had been raped by the father and there had been an attempted rape of her by SB.   That does not appear in either the 2010 findings document nor the schedule of findings sought for the purposes of this hearing.   I do not understand how, in her recent statement filed for these proceedings and in her oral evidence, she speaks so positively of the father as a father and of his relationship with D in light of the allegations she now makes against him.   I also do not understand how she could in her evidence assert that it was her desire to sit and talk through problems with the father when she has never done so in the past and, as has been demonstrated, her first recourse is not to apply to this court but to go to police and Social Services. 

30. I do not accept that D told his mother that SB had kissed or cuddled him on a bed in February 2012 or at any other time.   I do not accept that any such matter was reported by her to the father.   In my judgment it is clear on her pattern of behaviour that if D had said anything like that to her she would have raised a hue and cry and extended staying contact, as occurred in April last year, simply would not have been permitted to take place by her.  She would, in my judgment, have immediately made a complaint to the police and/or to Social Services as she did in late April 2012. I find the mother to be an unreliable historian who has exaggerated events at times to bolster her attempts to stop or limit the father's contact with D.  At other times I regret to find she has invented allegations and lied to professionals, to investigating agencies and to the court.  

31. I so find on the totality of the evidence I have read and heard but give the following 16 examples for my reasons:

(1) Contrary to what had been asserted in statements and at court about the father's violence, on the 13th June 2011 in a report by Kelly Stevens the mother told her that the father was not violent to her and told her that the father had acted protectively from time to time.   The mother (though Ms. Stevens was not called at this hearing) denies that she said those things but could not explain why at no stage had she taken issue with those assertions in Ms. Stevens' report.

(2) The mother could not explain why in her statement she asserted (D43 of the bundle) that D had been on the Child Protection Register.   It is plain he had not.  When she so asserted she was lying.  

(3)  In a statement in 2009 (D14 in the bundle) the mother set out that the father was seeking an injunction against his brother when she knew that an injunction was in force.  She claimed in her oral evidence that she had not sought to mislead the court but in October of 2009 she was not in the right state of mind.  I do not accept that explanation; the mother was once more lying. 

(4) In the November 2009 statement that I have just referred to there is no reference to any allegation of rape by the father or attempted rape by SB.   In my judgment there is no reference not because the mother, as she told me, could not admit it but because those allegations are false. 

(5) There is no reference in the Schedule of 22nd March 2010 (D182 of the bundle) to the father being physically violent to the mother.   When asked to explain that omission the mother said she was told to keep it short.  I entirely agree that it may have been appropriate to keep it short but the most serious allegation made ought to have been included.   The fact that it was not, namely, the father had been physically violent to her is not there because in my judgment it is not true. 

(6) It was established that there were clear discrepancies between the mother's statements and Schedule and her diaries, both the typed version and the manuscript version.  So, for example, at D138 there is a reference to the father being drunk.  It does not appear in the typewritten version of the diary or the manuscript.   The mother could offer no explanation for that omission from her diary. 

(7) In one of her earlier statements (D24 of the bundle) the mother asserts that the father hit her twice on two unspecified occasions.   There is no reference to any such violence in the diaries.  The mother could not explain why. 

(8) Those same allegations of violence do not appear in any Schedule.   There is no explanation why.  

(9) There is reference made in an early statement (D24 of the bundle) to the mother being threatened by the father with a pair of scissors and a knife.  By the time the Schedule is produced (D184 of the bundle) it has become the father threatening her with scissors and knives.   There is no explanation for the allegation going from the singular to the plural.  What is more, as for the day in question (E43 of the bundle) there is no reference to either knives or scissors in the mother's diaries.   When asked to account for that omission she said it was recorded on another page in the diary.   It is clear that E42 was the next page and there is no reference there.   The mother asked if she could go and get her diary so she could prove that it was mentioned.   She had to accept it was not there and could not explain why not. 

(10) There is an incident relied on on the 13th July 2009 (D185 of the bundle) in a Schedule.   It is not referred to in any witness statement.   The mother could not account for the omission.  In my judgment, again, she is lying. 

(11) In her oral evidence the mother alleged that on the day of the separation the father had pushed her out of the house.  She could not account for why, in her statement (D27 of the bundle) there is no indication of physical violence or contact at all. 

(12)  As I have mentioned, there was an agreed recital to the order of 29th April 2010 that for old allegations no findings would be sought.   Those allegations, however, were resurrected in December 2010 (D211, D217 of the bundle).   The mother could provide no explanation as to why those matters were not relevant, not relied on in the April and suddenly became relevant in the December.   In my judgment it is because those allegations against the father are false and the mother was resurrecting them to her advantage in stopping unsupervised contact. 

(13) In December 2010 (I74 of the bundle) the mother alleged the father had raped her and said that that allegation made previously by her had been investigated by the police, but the family had forced her to retract it.   The mother could not explain that account which was patently untrue.   No allegation of rape against the father had ever been made to the police and it had never been investigated.   There had been no question of the allegation being forcibly retracted by her because of pressure from her family. 

(14) The mother could not explain why in her diary, where events are described in some detail, there is no reference to any episode of rape by the father or of attempted rape by SB. 

(15) The mother asserted that in October 2010 her concerns about contact were really only about the risk posed by the father because of incidents outside contact centres when he had been, it was said, aggressive to her sisters.   She could not explain why these alleged aggressive behaviours were not contained in any Scott Schedule nor were they referred to in any solicitor's correspondence.  

(16) Finally, there is a reference in the bundle to a MM, a worker at a play group, having been asked by the mother to make a referral to Social Services.   The mother denies that she asked MM, to make referrals to Social Services.  I am satisfied that the record at F102 is correct and the mother is, once more, lying.

32. In my analysis of these allegations I am satisfied that SB struggled with alcohol abuse.  I accept he caused huge difficulties for the family.   I accept that the paternal grandmother, the mother and the father from time to time relented in the past and allowed him to return to the family home.  I accept that there were times when, through drink, he was abusive and, to a degree, uncontrolled.   I accept that there were numerous occasions when the family felt it necessary to call the police because of SB's actions and condition but I note the last occurred on the 17th April 2008.    I accept in relation to SB there were, no doubt, intense arguments from time to time.  There may have been some physical contact.   I do not accept, however, that SB was physically violent to the mother.  

33. I do not accept that the father was physically violent or objectively controlling of the mother.   The father has plainly been frustrated by these protracted proceedings.   No doubt from time to time he has vented his frustration in arguments with the mother but, in my judgment, no more.   The mother, on the other hand, is, as I have said, an anxious individual, overly anxious which causes her to over-react to events from time to time.   I note her previous partner, a man called R, is, sadly, accused of being violent to her and of raping her.  I accept that there was a very clear difference in the demeanour of the mother when she was asked about the events of abuse at the hands of R (where she clearly was extremely and understandably emotional) compared with and contrasted to her demeanour when asked about the rape by the father or the alleged attempted rape by SB.

34. I turn to consider now whether I am satisfied that D was sexually abused by his uncle.    I remind myself that at the time D was a little four year old boy.  On the CD recordings that I heard of the 21st and 25th April he came across as very jolly, very happy and very chatty.   There was no sense throughout and, in particular, the latter recording that lasting some 10 minutes, of him being upset or distressed or concerned about what he was saying.  

35. Secondly, and in relation to the mother, on the 21st April in the context of her being told that the Social Services were not going to take any further action into the matter referred by the police to them, I am concerned that she was too ready to reach a sinister conclusion.  She did not contact the father.  She effectively went straight to the police.  I remind myself that those events took place when, as the mother had told me, she had a feeling in her heart that something was not right when D was staying with his father.

36. Thirdly, I have already referred to my grave misgivings about the evidence and actions of JN in relation to an alleged recording of the 23rd April.  A more contaminated piece of evidence of alleged "disclosure" by a child could not be thought of.

37. Fourthly, the mother having been asked by the police the previous day whether she had further evidence of her allegations, the next day makes a longer recording with D where he is subjected – as the transcript clearly shows – to wholly inappropriate questioning.

38. Finally, the interview of the 23rd May 2012 conducted by Mr. Muchekeza and DC Sutcliffe was, by any standards of child abuse investigations, woeful.   That they conducted the discussion at the child's home with the mother present in the house might well be excused.   But they questioned the child for 30 minutes without him making any disclosure and were at the point of calling it a day and leaving, which is understandable, but that they permitted the mother to speak to the child in their presence which was, "Tell them what you told Mummy about the bath", is quite incredible.   It is a plain good ABE practice never to ask a child to repeat what they said to somebody else, simply to ask them to tell what has happened to them or what they have experienced.   To continue the discussion in the presence of the mother with the child being from time to time held by the mother is, in my judgment, wrong and improper.

39. The totality of all those matters taken together is that that body of evidence, of the recordings and of what D is supposed to have said to the police, to his mother and to JN is so contaminated or the risks of it being contaminated are so high as to, in my judgment, be completely unreliable.   I am reinforced in that view by the fact that Mr. Muchekeza and DC Sutcliffe, in material areas, had different notes and recollections of what it was that D was supposed to have said.   It is no minor insignificant matter, for example, that one records the child saying "he washed or touched his uncle's willy and bottom" and the other records he touched "near".

40. In any event and furthermore, I am satisfied that it is almost inconceivable that this father would allow this child to be abused or to be harmed by anybody let alone by his brother whom he knows has had a very troubled past.  In many ways, the mother herself in evidence conceded that she really could not believe that this father would allow this to happen.   Moreover, whilst it is right that there were some issues on the father's evidence and on the uncle's evidence as to whether the uncle had seen D on two occasions last year, namely Easter Sunday and Mothering Sunday, or whether he may have been at the home when D was there on two other occasions in late 2012 is not really, in my judgment, relevant or significant upon the central question about whether this uncle had the opportunity to abuse D.

41. I accept the evidence of the father and of the uncle that the latter never bathed D, that he was never in a bathroom when D was in the bath and that he was never ever alone with D after the parties had separated in 2009.

Conclusions
42. Thus, I find:

(1) The allegations of past violence and rape made against the father and SB by the mother are untrue. 

(2) The allegations that SB sexually abused D are untrue.  Any allegation that he otherwise acted inappropriately towards D, for example, kissing or cuddling on a bed, are likewise untrue. 

(3) In relation to the mother's allegations against the father, set out in the Scott Schedule in paragraphs 1 to 8, they are, in my judgment, not made out.  In each case I accept the explanations given by the father.  

43. Whether the mother deliberately coached D to say what is ascribed to him in February and/or April and/or May 2012 or whether her wholly inappropriate conduct and questioning of him (and the wholly inappropriate questioning by JN) about these matters on so very many occasions caused him or led him to say these things, I do not know.  But whatever the cause, whatever the reason, what is relevant and of great concern is that this mother did not hesitate to put the most sinister of explanations to what her four year old was saying and did her utmost to thwart the father's contact and his relationship with his beloved son.

44. I regret to find that her actions were not borne of acting in D's best interests but were part of her concerted and long-standing campaign against the father.

45. That is the judgment of the court.

MS. BROWN:   My Lord, we are grateful.    Obviously the parties would welcome the opportunity now to consider that overnight.

JUDGE KEEHAN:
  Certainly.   I shall, in a moment, rise.   If there are any corrections or any errors I may have made in the course of the judgment and/or further reasons are required, would you let me know tomorrow afternoon?

MS. BROWN:
  Of course, my Lord, yes.

JUDGE KEEHAN:
  I will ensure that those are included in the transcript.

(Adjourned till tomorrow afternoon at 2.00)