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Newport City Council v W & Ors [2006] EWHC 3671 (Fam)

Judgment following the dismissal of an application for care orders part way through a seven day hearing after hearing medical evidence that changed the complexion of the case.

The crucial evidence was from an expert witness who found that there was no evidence of sexual abuse, opposing the evidence of other experts. The judgment is of interest because of the judge's comments regarding how the physical examination of children should be carried out and recorded so as to provide reliable evidence and also reduce the intrusion to the child.

_________________________

Neutral Citation Number: Neutral Citation Number: [2006] EWHC 3671 (Fam)

IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
CARDIFF DISTRICT REGISTRY

Case No. NP05C00377

17th October 2006

His Honour Judge Crispin Masterman

NEWPORT CITY COUNCIL

v

G W (1st Respondent)
T W (2nd Respondent)
R L (1st Intervener)
L W (2nd Intervener)
R H (3rd Intervener)
Children's Guardian (3rd Respondent)

JUDGMENT

1 This is an application by a local authority for care orders which has gone badly wrong. On the seventh day of the final hearing evidence came to light which changed the whole complexion of the case and resulted in leading counsel for the local authority applying to have the application dismissed. That was an appropriate and responsible decision for the local authority to take, but it would not have been appropriate to bring the proceedings to a premature conclusion at that point. The evidence that had by that stage been heard raised issues that required a judgement for two specific reasons. Firstly, allegations had been made against individuals who now have a right to be exonerated. Secondly, if there are benefits to be gained by learning from mistakes then it is important to identify where those mistakes occurred.

2 To understand how this situation arose it is necessary to describe in some detail the chain of events and to comment and make findings on those that determined the course which these proceedings took.

3 T and G W are both 37 years old and have been married for 12 years. Their children are Z, now 11, I, now 9 and C (known in the family as B) now 7. By all accounts they were a happy and united family which, like most, had its ups and downs but certainly nothing whatsoever to attract the attention of social services. All that changed on the evening of 15th May 2004. On that evening R L, the then 11 year old son of friends of the family and incidentally the W' godson, was staying overnight. R L has learning difficulties and has been found to have an IQ of 47. He was described by his school as having no interest in girls or sexual matters. However that evening he was discovered by Mr W in C's bedroom lying on top of her and both children had their nightclothes pulled down. Mr W pulled R L off by the scruff of his pyjama jacket and marched him downstairs. Mrs W then attended to C, who was crying. R L's parents were summoned and came round. Mr W called the police and they were given an account of what had happened. Although the police report refers to R L confessing that he had "penetrated" C with his penis it is apparent that R L would not have used that word. In fact he seems to have been extremely reluctant to explain what in fact had been going on and Mr W himself was unsure when he surprised them together. Emotions were, understandably, running high and it appears that this incident caused not just a temporary rift between the W and L families but one which still continued at the time of the final hearing. It meant that all contact between the children and R L ceased immediately.

4 Following this incident the police alerted social services and a s.47 investigation was undertaken in conjunction with the police. Mrs W reported that C had become difficult about eating and going to school and had been very clingy since the incident, but was settling. L P, a social worker, was given case responsibility and started to visit the family for the purpose of starting self-protection work with C.

5 On 1st June 2004 R L was interviewed for the first time by the police under caution. The interview lasted for 65 minutes with a short break. His father was present, but no solicitor. R L was still only 11years and 3 months old. I understand that R L can present as more socially mature than he really is. This may be the reason why the police embarked on a procedure which with hindsight seems highly questionable. They did not have the advantage of a report made available subsequently to the court from a chartered psychologist, Gillian Evans, revealing not only R L's significant learning disability but also her finding that

"he can…be easily led and manipulated…he is…a very vulnerable, developmentally immature young man, who finds it hard to function independently without the close support and guidance of adults."

She said that he was functioning then at the level of a 6 year old. In the circumstances extreme caution would have to be exercised in relying on the outcome of this interview. In the event, on being asked what happened with C, R L replied "being rude". Asked what that meant he said "doing naughty stuff". Pressed about that he elaborated with the word "bumming". Despite lengthy further questioning during which he admitted what was already known, namely that their night clothes were pulled down, R L said no more than that 'bumming' involved his 'willy' and 'C's bum'. However he would not admit that the former made contact with the latter despite inducements that were made both by the police and his father.

6 On the 8th June 2004 C was referred by the police and social services for examination by Dr M, locum consultant paediatrician, at the Royal Gwent Hospital in Newport. The outcome of this examination was to have a pivotal effect on the further conduct of the investigation. The key part of her report reads as follows:

"Her genitalia were examined in a frog legged position, using the Welch-Aleyn videocam. C was very relaxed for this examination and it was observed, even before putting any traction on her labia, that her vaginal opening was gaping. She had grossly abnormal findings, on examination, of her hymen. As already stated, her vaginal opening was gaping and there was loss of tissue from what was probably originally her crescentic hymen with marked attenuation between 7-8 o'clock, bumps at 3 and 9 o'clock and a rolled thickened edge. When I took a low vaginal swab C giggled. Examination of her anus in a left lateral position showed no reflex anal dilation after 30 seconds and no abnormal features. C therefore was showing clear signs of vaginal penetration and therefore of sexual abuse."

Dr M goes on to discuss this finding against the history recounted to her, which she found difficult to reconcile, and describes how she discussed her findings with others before concluding:

"The examination has revealed that she has signs of sexual abuse which are chronic and unlikely to have been caused by an 11 year old".

In the light of this it is hardly surprising that the hunt was then on to discover an adult perpetrator of this chronic sexual abuse.

7 However on 22nd June 2004 L P, continuing her work with C at the home, uncovered fresh concerns. Using dolls as aids she succeeded in getting C to describe what had happened with R L and was told by C that R L "put his bit in mine". Z, then 9, had been 'hanging around and entered the room several times' and was asked to join them when she wanted to know what they were doing. Z then disclosed voluntarily that R L had 'done the same thing to her' twice, once when she was 7 and once when she was 9 years old. She went on to say "you know. He had sex with me…he put his willy in my private parts" and she said I had been present. I confirmed this.

8 C meanwhile went downstairs to reveal to her mother what had been said, which provoked a highly emotional scene in which both Mrs W and Z became very upset. In the midst of all this Z then said that her cousin L W, then 15, had 'messed with her' and that her mother was aware of it. Understandably, L P advised the parents not to allow any contact between the children and either R L or L W.

9 Those conducting the investigation decided that C was too young to be interviewed on videotape but that Z and I could be, and that R L and Z should be medically examined. On 27th July 2004 Dr M examined Z but found only vague signs which were not diagnostic of sexual abuse, although she pointed out that the absence of physical signs does not exclude such abuse. On the same day she examined R L, concluding that he was just beginning to enter puberty at a very early stage and

"my concern would remain about his ability to have caused damage to C and to have abused her over a period of time given his immaturity in terms of sexual development".

It followed from this that whatever happened between C and R L almost certainly did not involve penetrative sex and that no more could have happened between Z and R L.

10 Z was interviewed on 30th July 2004 by the police. She was asked first what L W had done. She said "He put his tinky in my G" . She said this happened when she was staying at her paternal grandfather's when she was 8. She tried to stop him but he pinned her down. She felt it "in my G…he was going up and down…he stopped because he heard my grancha…it felt awful". She said she had told her mother about a month later and her father said he would phone the police if it happened again. It did happen again, in L W's bedroom, just after Christmas. He had been hiding in an adjoining attic and locked her and C into the room and the same thing happened. Her mother got to hear about it and her father told L W that if he touched Z again anywhere he would kill him.

11 Asked about R L, she said that he had done the same. Once in his house and once in hers. "It tickled". She told her mother who told R L's mother. That according to her was in June 2004, which could not be correct as the families had ceased contact after the incident on 15th May 2004. The previous occasion was identified as having been on 23rd December 2003 but the evidence is clear that Mr and Mrs W had lost contact with R L's family at that period of their lives.

12 On 5th August 2004 I's interview by the police was recorded on videotape. Asked about R L and Z he said that Z had gone over to R L's house and had sex. R L pulled Z's nightie down and then his own trousers down and 'put their privates together'. He described how R L opened Z's 'penny' up and put his 'Thomas' into her. 'It went all the way in'. He then pushed her on the bed. It 'went on for ages'. He said R L's mother came in and saw it and got R L off Z and then told his parents, who grounded Z. I identified the date of this event as when his father had to go into hospital, which was in February 2004, but other evidence shows that the W family were not in contact with the L family at that time.

13 On 11th August 2004 C was spoken to by DC Millington together with L P and Mrs W but was unable or unwilling to say what happened between her and R L, and had only a hazy notion that something occurred between Z and L W which caused her mother to be furious.

14 I think there can be no doubt that once Mr and Mrs W learned of Z's allegations about L W, allowing any of the children to come into contact with him would have been the furthest thing from their minds. There seems to be no dispute that a year or more earlier Z had complained to her parents that L W had touched her in some way which was interpreted by her parents as inappropriate or sexual and Mr W had threatened to 'kill' L W if it happened again. In fact the whole series of events since mid-May had caused such ill-feeling that the parents decided by August to end all relations with the wider family. Unfortunately, on 10th August, the day Mrs W' mother was buried, the parents arranged for Mr Roger W, the children's paternal grandfather, to look after them and L W was present. He had been expected to be absent on holiday. I am quite satisfied that the parents would not have allowed this contact had they realised L W would be there, although it was in any event somewhat insensitive to send Z to the very place where she was alleging she had been abused.

15 Social services got to hear about the contact with L W and held an internal meeting at which the legal opinion was that the children were at ongoing risk of significant harm and that the grounds for applying for care orders were met. The social workers' view however was that it was worthwhile to explore the alternative of a more rigorous approach by the parents to protecting the children in their own home. Accordingly, on 13th August social services required the parents to sign an agreement that they would not permit any further contact between the children and either R L or L W. The children were not to be left in the care of Roger W and were to be made available to see and speak to social workers. The agreement concluded with a clause that made plain that any breach would result in 'legal action'.

16 On 16th August L P spoke to L B, her supervisor, 'regarding the most recent concerns and the outcome of the legal meeting' (Mrs B's record) and the note indicates that Mrs B, who had not met the parents, raised concerns that the children were not being protected, that the police were to speak to the parents as soon as possible and added that if that raised further concerns another legal meeting would be convened.

17 On 18th August L P visited the children and from her discussions with C and Z formed the impression that they would not engage with her as they had done previously and were reluctant to discuss what they had been happy to discuss before. The suspicion was formed that the parents had influenced the children not to cooperate although L P conceded that it was possible C simply didn't want to discuss things that day. She also agreed that the parents had been fully cooperative up to that date and there was no actual evidence that they had ceased to be so. She again consulted L B (who did not give oral evidence) and the (unminuted) decision was taken to remove the children. No further legal meeting was convened nor were the parents consulted.

18 In evidence L P said that Mrs B felt that there was a combination of the parents not being totally honest, the children having contact with L W and the need for space to find out what had happened to them. I do not believe this was a decision with which L P wholly agreed. I believe she recognised that a more prudent course would have been to make further investigations before rushing into a decision. If so she was, in my judgement, right. Whilst it is much easier to make such a judgement with the benefit of hindsight, nevertheless certain factors should have been clear at the time. The parents should not have been treated as failing to protect their children solely on the basis of the chance meeting with L W, of which they would plainly not have approved. There was no evidence that the parents were attempting to 'close the children down' and in any event this would not be grounds for removal. Removing the children simply to see what disclosures might be made could not be justified. Where none of the apparent reasons for removal stand scrutiny on their own, taken as a whole they can be no stronger. The facts were that there were no allegations of abuse by the parents, the parents had fully cooperated and they were not in breach of the agreement with social services.

19 This regrettable decision resulted in the parents being put under pressure they felt powerless to resist to consent to voluntary accommodation of the children with foster parents under s 20 of the Children Act. This took effect on 23rd August despite the parents' protests and their evident incomprehension of the reasons. They had just entered into a contract, believed they had not breached it and indeed they had not.

20 The Local Authority now acknowledges, with hindsight, that it failed in May 2004 to follow the guidance in Chapter 5 of Working Together to Safeguard Children published by the National Assembly for Wales. There was no initial assessment within 7 days of referral. It appears to have been completed four months later. It should have been an important document to inform those coming new to the case and the parents. That is of some importance in this case where between the children being accommodated and M P taking over the case in February 2005 there were three successive social workers allocated to the case.

21 There was no core assessment within 35 days after the initial assessment. The manner of its eventual commission was unacceptable and its content did not comply with the Framework for the Assessment of Children in Need and their Families. It meant that the Local Authority never had a clear and accurate assessment of this family. Despite a decision, clearly minuted, for a core assessment to be carried out by an independent social worker, M W, she was not given that specific instruction (the letter of instruction has been lost) with the result that no core assessment as such was ever produced. In fact M W, who is an experienced Children's Guardian who had just started taking private work, believed that her role was to plug a gap where the Local Authority was short of staff and carry out a social work role. As such she spent much of her time investigating the history and background to the allegations and then reported her findings in December. She agreed that it was not her function to carry out 'disclosure' work, nor was she asked to do so, but her conclusions appear to have been given more status by the Local Authority than she intended. The blame for the lack of clarity and purpose in her instructions must primarily fall on the Local Authority but I think that M W would now agree that she should have clarified her role at the time. One important comment which she did however make was that it was difficult to justify keeping the children in care in the absence of a specific disclosure implicating the parents. That seems to have been ignored.

22 There was no planning meeting to which the parents were invited so that they could put their case. There was no child protection case conference before the decision was made to accommodate the children. There was a failure to 'work together' with the parents. This is the very same criticism highlighted by Munby J in Re L (Care Assessment: Fair Trial) 2002 EWHC 1379. One cannot help feeling that this was a classic case for maintaining strong lines of communication with the parents, particularly where the parents' views – if given proper weight – might well have influenced the Local Authority's thinking.

23 Their involvement in the decision-making process was therefore much less than it should have been. No Child Protection Conference was even considered, let alone held, although this step should have been taken within 15 days of the first Strategy Meeting. The parents were excluded from Strategy Meetings and merely informed of the outcomes. The children's names were never in fact put on the Child Protection Register. Rather than go down the child protection route, management felt (I was told) the best way forward was to remove the children. The result of all this was (to quote Counsel for Mr W) 'that the essential disparity between the allegations and the presentation of the parents went unnoticed or, to the extent that L P brought it out, unheeded. The parents were not in a position to correct the wrong assumptions and misinterpretations which abounded in the various closed…meetings…that were held'.

24 A further unfortunate consequence was that when, threatened with removal of the children, the parents took legal advice, that advice might not have been to consent had the solicitors been able to ascertain that the social worker most closely involved was not herself in favour of removal.

25 A number of other shortcomings were identified by Counsel for Mr W in a detailed critique of the Local Authority's actions which is perhaps of more use in any internal review than being analysed here in what would become an overlong judgement. It should however be added that the criticisms were coupled with an acknowledgement, with which I agree, that all the professionals concerned believed themselves to be acting for the good of these children. It is undoubtedly true that social services departments have in recent years operated with inadequate resources and under immense stress and run the risk of attracting equal criticism whether they remove a child or whether they do not.

26 It must also be recognised that the Local Authority was faced with a dilemma. They had clear evidence from a Consultant Paediatrician that C had suffered chronic sexual abuse and yet the same source confirmed that R L almost certainly was not the cause. C had given no hint that any other person was involved and yet the clear implication was that an adult had abused her. At the same time they had allegations by Z which, in so far as they too involved R L, could not be taken as establishing serious sexual abuse of the kind Z appeared to be describing. Nor was there medical evidence that Z had in fact been sexually abused, despite her further allegations against L W. There was nothing to link L W to C in this respect. So who had abused C? Suspicion had to fall on those with the opportunity and logically that category had to stretch to the parents.

27 The next significant step in the investigation was when the police carried out an interview under caution of L W on 20th October 2004. He was at the time just 16. He resolutely denied Z's allegations and in fact accused her of hitting him in the face and causing a nose bleed. He agreed that his uncle Mr W had accused him in the past of touching Z, which he had denied. He claimed that Z often told lies, that she had told everyone she had sex with R L and described her as a 'slut'. He said that she had once tried to sit astride his lap in such a way as to make him feel uncomfortable and he had told her not to 'because I'm your cousin'.

28 At an earlier stage that year it had emerged that Mrs W had a brother, R H, who was a Schedule 1 offender, having been convicted of offences of sexual assault on his stepson. It was perhaps inevitable that, in casting round for a possible perpetrator of the abuse on C, he should fall under suspicion because he had in fact visited the W with his wife K and stayed for several days in September 2003. Subsequently he and his wife had babysat the children on a couple of occasions.

29 In the months that followed the children going into care the parents increasingly queried when they would be returned home, particularly as Christmas came and went. The Local Authority arranged for the parents to meet with M W and themselves and it appears that her findings were heavily relied on as summarising the continuing concerns that were said to justify the removal. The parents nevertheless continued to say they were unclear why the children could not by then be returned. When it seemed likely that the parents would withdraw their consent to further voluntary accommodation, the Local Authority applied for interim care orders. The application came before the Family Proceedings Court on 6th May 2005 and the Justices' Reasons include a reference to M W's conclusions that 'the parents had been less than honest with her over a large number of issues' and that 'the parents failed to protect their daughters'. They found reasonable grounds to believe that s 31 was made out and specifically referred to the sexual abuse of C, the fact that the parents could not be ruled out as possible perpetrators, their failure to protect her from chronic abuse and their failure to adhere to the written contract with social services. They relied on precisely the same grounds in respect of Z's abuse, if it were true. Whilst acknowledging that I had not been sexually abused, they accepted that he would have suffered emotional abuse as a result of what he had witnessed and that the parents had failed to protect him and failed to adhere to the contract.

30 There followed substantial delay which I do not propose to deal with here, largely because this case was managed in another very busy and over-stretched single court care centre and I have not been able to investigate the full reasons. Suffice to say that a finding of fact hearing was timetabled for January 2006 but vacated when (so I am told) no judge was available, further expert evidence was required and additional parties given permission to intervene. They were R L and L W, both represented by the Official Solicitor, and R H. Eventually, for procedural reasons, the case was transferred to this care centre and heard over a period totalling about 8 days from 14th September 2006.

31 At a pre-hearing review on 8th September 2006 the court was faced with an application which in normal circumstances would have been unlikely to succeed. With only six days until the hearing, Leading Counsel for Mr W indicated that his client could not accept the medical evidence and requested a further expert's opinion. At that stage the court had the evidence of Dr M dealing with her examinations, findings and conclusions, but also a second opinion served in March 2006 from Dr P, Consultant Community Paediatrician, instructed by the Children's Guardian. Dr P had been hampered by having to rely for her opinion solely on the notes and reports of Dr M together with a single still colposcopy photograph of each of C and Z. She did not have permission to examine either child. Her conclusions in respect of Z and R did not differ significantly from those of Dr M. Her comments in respect of C were that the photo showed a hymen which was not one of the normal, recognisable shapes. There appeared to be less hymenal tissue between 7 and 8 o'clock, the area described by Dr M as 'attenuated', and Dr P stated that this would normally imply that there had been some rubbing and friction in this area which could be indicative of pressure against and through the hymen on a number of occasions by a penis, object or finger. Dr P pointed out that good practice dictated that where there appeared to be an abnormality in the posterior margin of the hymen the child should be placed in the knee chest (prone) position 'where gravity pulls on the vaginal musculature and allows for any potentially normal artefacts seen in the supine position to be smoothed out'. In general however Dr P agreed with Dr M's interpretation of her clinical findings, but said:

'The shape and decreased hymenal tissue would cause me to have concerns that C has been abused on more than one occasion'.

32 It was those last five words that raised a question mark. They do not carry the same implication as 'chronic' sexual abuse. Dr P's report did not convey the conviction that Dr M's appeared to. Coupled to that was the uncomfortable fact that there was still no credible evidence of any adult with the opportunity and the inclination to have abused C in the way suggested. In those circumstances I authorised Mr W to obtain (if he could in the limited time available) a report from Dr Astrid Heppenstall-Heger, a paediatrician at the Los Angeles Children's Hospital and Professor of Paediatrics at the University of Southern California with an international reputation in this field. I should stress that this course was supported by Leading Counsel for the Local Authority. There followed a highly creditable degree of cooperation not only from Dr Heger at such short notice but also from her British colleagues in the case. Dr Heger was supplied with a copy of the photograph of C and the medical notes and reports and responded immediately with her opinion in letter form. This was that C showed no abnormality and that the principal sign relied on as diagnostic of sexual abuse, the loss of hymenal tissue, was probably explained by the fact that asymmetric traction had been applied by the examiner giving a false impression that tissue was missing. At very short notice and no doubt at considerable inconvenience given the eight hour time difference, a three way telephone conference was set up for Drs M, P and Heger. The result of this was consensus that C should be re-examined by different techniques. In spite of considerable reservations at having to expose C to a further intrusive examination more than two years after the first, I gave permission and she was re-examined, this time by Dr P. On the seventh day of the hearing we received the news that Dr Heger was right and Dr P was able to confirm, both with a brief report and with a series of colposcopy stills, that she had found no abnormality. Dr M was contacted and indicated that she would defer to Dr P's findings.

33 With this new evidence the Local Authority's case fell apart. The facts relied on to establish that the s 31 threshold had been passed were that the parents had failed to protect their daughters from, in C's case, chronic sexual abuse (impliedly by an adult); and in Z's case, abuse by R L (which on the medical evidence could not be viewed seriously) and by L W (proof of which was by then not going to meet the required standard). Leading Counsel for the Local Authority, acting with speed and responsibility, was able to obtain instructions within the hour that the Local Authority wished to have its application dismissed. As indicated at the outset of this judgement, I declined to take that course because it would have been wholly unsatisfactory to curtail the proceedings at that stage without publicly exonerating those on whom suspicion had unfairly rested and there was the critical question why the initial diagnosis had been wrong. I therefore directed that the hearing continue in order to complete the medical evidence.

34 Before dealing with that it is necessary to put to rest the allegations that have been faced not only by the interveners but by Mr and Mrs W. I remarked at the conclusion of the hearing that Mr and Mrs W had dealt with this whole disaster with dignity and forbearance and I repeat that again here. Indeed without the honest incomprehension with which Mr W faced the situation and the tenacity displayed by him and those advising him in the last weeks running up to the hearing, the case might have had a very different outcome. There could have been an even more serious miscarriage of justice than has already occurred. The apologies of the Local Authority have already been publicly and properly expressed in court but no-one who has listened to the evidence in this case could possibly avoid feeling the utmost sympathy for what this family has gone through. The children returned home as soon as the mis-diagnosis was confirmed and I was told that it was as if they had never been away, but it would be idle to suppose that two years' separation can be repaired in a weekend.

35 I hope also that Mrs W will not blame herself for the approach she took to the evidence. Her approach diverged from that of her husband in that she felt she should believe what the children were saying. She therefore conceded the threshold and accepted the medical evidence. She should not be criticised for accepting the expert evidence that had been accepted both by the Local Authority and the Children's Guardian.

36 As for Mr H, it is now quite clear that there is not a shred of evidence against him. At best the Local Authority's case was that he had a very limited opportunity to abuse C, had he had the inclination, but as the evidence unfolded it became obvious that he was never alone with her. There was of course no hint from C that she had been abused by an adult and it verged on the incredible that he should have had the opportunity to groom and then abuse his niece on 'more than one occasion' without the parents or the other children becoming aware that something had happened. He is entitled to be wholly and publicly exonerated.

37 Turning to R L, there is of course little doubt that something was going on between him and C on 15th May that he was ashamed about. It is difficult to know exactly how to characterise it. R L's mental age is little more than C's actual age and they were both sexually immature. At that age children often have only a hazy idea about sex but are old enough to be curious about the differences between the genders. I have no idea whether this was just a form of playing, or some kind of simulation of what they might have been exposed to on television, or resulted from the sort of playground conversations children have or a form of 'you show me yours and I'll show you mine' or whatever, but what I am clear about is that this should not have been treated as a criminal act and it did not merit a formal caution.

38 It is very difficult to see how this procedure could have been adopted. The National Standards for Cautioning issued by the CPS require the following conditions to be met before a caution may be administered by the police. Firstly there must be a realistic prospect of conviction. Secondly the offender must admit the offence. Thirdly the offender (or appropriate adult) must understand the significance of a caution and give informed consent to being cautioned. From what was heard in court there must be the greatest doubt that a reasonable Bench or jury would have convicted, particularly if R L's whole interview (which contained inducements) were to be excluded from the evidence as it seems it might have to be. There is a tenable argument that R L never in fact admitted the offence and legal advice would probably have been to challenge the charge. Lastly, there must be considerable doubt whether R L understood the significance of a caution (i.e. that it is a criminal record and that he is deemed to be a sex offender) and some doubt whether his father, who was without legal advice, fully appreciated the consequences. In any event the Local Authority does not now seek any finding beyond what happened on 15th May and which I have described in paragraph 3 above. Indeed no further finding is either required or appropriate.

39 As for L W, the Local Authority seeks no finding beyond the fact that Z told her father in June 2002 that L W had touched her on the leg and as a consequence Mr TW took protective measures by threatening to kill L W. Apart from commenting that Mr W used a figure of speech that was not intended to be taken literally and that he was simply threatening condign punishment, that finding is not opposed by those advising L W.

40 What would have been strenuously opposed if it had still been relied on by the Local Authority (but is not) is any suggestion that Z's and I's allegations involving L W are true. For completeness' sake I should deal briefly with the allegations made by both of them in their recorded interviews. These have been the subject of close scrutiny by Dr Alison Westman, a Consultant Child and Adolescent Psychiatrist, who was asked to consider their reliability. She gave her evidence before the re-examination of C took place. In summary, her view was that the specifics of I's evidence had to be viewed as of low reliability. Z's evidence varied between low reliability and moderate reliability. Her evidence of experiencing penetrative sex was of low reliability but of experiencing something untoward of a sexual nature on four occasions was of moderate reliability and could not be dismissed.

41 She remarked that it was not uncommon for a child to make things up and that once embellishment starts it can be 'like a rolling stone' and more and more fantastic detail comes out. This strikes a chord with the evidence that came from the later foster carer, Mrs Windless. Her evidence was not called nor was it relied on by the Local Authority but it should be mentioned to illustrate Dr Westman's point. Mrs Windless started to receive confidences from Z and C within weeks of their arrival and obtained their consent to note them down. The 'disclosures' then became more and more detailed but more and more unbelievable. They have served to cast further doubt on the earlier allegations made by the girls.

42 It does now seem quite possible that when L P started her work with C she was overheard by Z and that Z's subsequent revelations can be explained by attention-seeking coupled with a child's failure to understand the implications of what she was telling. Z's evidence as seen on videotape is articulate and confident, but it can also be demonstrated to be wrong. There was evidence that Z does make things up. The interview itself was flawed and the preliminaries were not carried out in accordance with best practice. I have no doubt that if it had been necessary to make specific findings about L W and Z, the evidence would have fallen far short of the required standard of proof and L W would have been entitled to be exculpated. As for R L and Z, the same comment applies but with the rider that R L's incapacity makes her story even more fanciful and further undermines what she says about L W. I do however share Dr Westman's overall concern that Z may have experienced sexual activity 'outside the norms of experience of a child of her age' but without having any clear idea how that may have occurred.

43 I turn lastly to the medical evidence. Although Dr M examined C on 8th June 2004, her report is dated 26th July 2004. This is explained by the fact that Dr M wished to discuss her findings with her colleagues Dr N and Dr R. Her report records that both shared her view but suggested she consult Dr W who was the Designated Doctor for Child Protection in another city and very experienced. She discussed the case with Dr W who agreed her findings. None of these three paediatricians of course had the advantage of being present at the initial examination. I interpolate that the practice in Gwent is now that two doctors of consultant status carry out a joint examination where sexual abuse is suspected. At that time Dr M and her colleagues were carrying out, she estimated, on average about one such examination weekly on referral from a local authority.

44 Dr M accepted Dr P's findings from C's second examination. She maintained nevertheless that she had carried out her examination in a recognised way, in accordance with the guidelines of the Royal College of Paediatrics and Child Health. She relied on the 1997 edition of the Royal College of Physicians' handbook "Physical signs of sexual abuse in children" which at Chapter 4 deals with 'size of the hymenal orifice and other signs associated with abuse'. She was also able to refer to "Child Abuse and Neglect, a Clinician's Handbook" by Hobbs, Hanks and Wynne. She said that she had taken all reasonable steps at the time, her concerns were real and she had described what she saw. On that basis she did not concede that she had made a mistake and referred to the 'peer review' she had undergone at the time. Taxed with the evident fact that she must have been mistaken, Dr M stated that if she saw what she saw again she would reach the same conclusion. She added that she would now however carry out a further examination (ie with the child in a different position) which was not then the practice of UK paediatricians in general.

45 I have to say that her evidence about the use to which she puts the colposcope caused me surprise and concern. The equipment available to her was acquired in 1996. She said, somewhat euphemistically, that the images produced presented 'storage problems'. It appears that there were anxieties that the images produced would be treated as pornography if they fell into the wrong hands. Following discussions and advice from the health authority's medico-legal team the decision was taken not to use it to take video footage and if photos were obtained they were limited to one only. Pressed on this Dr M was obliged to concede that if this was the real reason for taking only one photgraph then it was 'ludicrous'. The reason is that the Guidance she relied on says this:

It is considered to be good practice for a permanent record (still photographs or video) of the genital/anal findings to be obtained whenever these areas are examined during the forensic assessment of a child who may have been subjected to sexual abuse. These images are usually obtained via a colposcope. The prime intention of such documentation is to support the clinical examination. Therefore, the images should be of adequate quality to demonstrate the clinical findings and if they do not this should be recorded in the clinical notes. In addition photodocumentation may enable additional medical opinions to be obtained regarding the description and interpretation of the clinical findings.

The Guidance goes on to say that the images must be stored securely in accordance with local policy. The Handbook in Chapter 2 says:

A major benefit of colposcopy is the clarity of the photographs obtained which allow both for a second opinion and for peer review without the need to examine the child further. It also makes available to a subsequent expert witness what was seen by the first doctor, should a trial ensue.

46 These are prophetic words in the present case. When Dr P re-examined C she took about 14 photos which demonstrated clearly that there was no abnormality. The single photo taken by Dr M succeeded in misleading four paediatricians. However when Dr Heger saw it she was instantly of the opinion that it fell into a category she had seen many times before and that a common mistake had been made. In due course she was proved right. I can only speculate that fuller use of the colposcope's capabilities in the first place might have avoided what followed.

47 Perhaps more worrying are the criteria relied on by Dr M for her diagnosis. The inference from her report that the vaginal opening was gaping seemed to be that she found this to be significant in terms of sexual abuse. In evidence she corrected that, saying it was merely an observation. The bumps at 3 and 9 o'clock she said were not relevant but again an observation. The rolled thickened edge she thought was significant, but not on its own. C giggled was simply an observation on her demeanour and not an indicator. She had however reported that there were grossly abnormal findings which she explained were limited to the loss of tissue between 7 and 8 o'clock and the associated rolled thickened edge.

48 This (incorrect) inference appears to have been drawn by social services. In the record of a strategy discussion on 8th July 2004 at which Dr M was present the following appears:

"Dr M medically examined C. C was extremely compliant and not bothered about the position she was in. Her vaginal opening was gaping. C's behaviour during the medical was felt to be abnormal. When a swab was taken she giggled. There was evidence that C had been sexually abused but concerns were raised regarding the level of abuse."

Dr M is of course not responsible for the content of this note, and it would be understandable if the writer had not understood some of the anatomical technicalities, but it feeds a suspicion that social services were being given to understand that there were more diagnostic signs to support a finding of sexual abuse than was truly the case.

49 Dr P gave evidence both before and after C's second examination. She confirmed that a 'gaping' vaginal opening has been shown by research not to be supportive of an abusive act. 'Bumps' at 3 and 9 o'clock would be a normal variant (if associated with intra-vaginal ridges, as to which there was no finding). In her report she had agreed that the significant findings were the attenuation (thinning) between 7 and 8 o'clock and the rolled thickened edge. The latter would not be significant on its own. She pointed out that 'attenuation' is a term of art and it should properly be used to describe comparisons between two examinations. Furthermore, research over the last two or three years suggested it was not necessarily diagnostic in the absence of other findings. She had been reliant on Dr M's findings and the single photograph and accepted that the asymmetrical area of the hymen could have been caused by rubbing. She had however never expressed the view that these findings were absolutely diagnostic of sexual abuse, as there was a possibility that they were normal variants in this child. But she now emphasised that where there is uncertainty about the clinical findings the child should be examined in more than one position. Hence, in the light of Dr Heger's views and research, she was in favour of a second examination, albeit two years after the event.

50 Giving further evidence by videolink after the second examination, Dr P felt that Dr M's original finding could have been the result of uneven traction as explained by Dr Heger. It was also the product of a limited examination where too few photographs were taken. The knee/chest position was not used, nor the technique of flooding the vestibule with water. She agreed that the limited use of the colposcope was very sad and did not serve the interests of the children concerned. It is always awkward to criticise a colleague but Dr P had to agree that it was unsatisfactory and out of date to be relying on the 1997 Guidelines when dealing with a developing area of medicine where much research had been published since 2000. She would have hoped that specialists in this area would have kept up with US research (the UK not having had the funding for research that the US has had) and be working to their standards. She said the US research, which is to a high standard, is already making a big difference to the teaching in the UK. The Royal College of Paediatrics has now taken over responsibility for rewriting the Guidelines on an evidence basis and if the UK decides to differ from the US they will no doubt say why.

51 Dr Heger also gave evidence by videolink, but from California. There is no doubt that she has an enviable reputation and has been at the forefront of research in this field. She told us that 20 or more years ago she was taught things that are now known to be untrue. Dr Heger endorsed the use of 'Approach to the Interpretation of Medical and Laboratory Findings in Suspected Child Sexual Abuse: a 2005 Revision' by Prof. Joyce Adams, which she said represented the views of leading child abuse specialists in the USA today and was accepted as mainstream opinion.

Dr Heger is of the opinion that the UK took a wrong turn after the Cleveland Enquiry and has been overtaken by other western nations. She and her colleagues differ from the approach of Hobbs and Wynne. She feels there is a tendency in the UK for paediatricians to over-diagnose due to relying too much on the medical evidence instead of looking at the whole case together with the medical findings. As I understand it she is saying that the clinician should be asking herself whether equivocal findings can be properly categorised as normal rather than suspecting them of being abnormal. More particularly she feels that the UK should either be giving more weight to the US research findings or doing research of its own if it is contended that children in the UK are somehow different. She entirely agreed that if any abnormality is found the child must be examined in the knee/chest position or the hymen floated. She strongly advocated the use of the colposcope and uses video recordings on an everyday basis. It is the best way of avoiding the child being re-examined. In this case she looked at the single photo (having seen probably 30,000 in her career) and knew 'instinctively' that it was normal and therefore instigated the re-examination.

52 I was referred prior to the hearing to Holman J's remarks in Re Y 2004 1 FLR 855. In that case a 5 year old had been examined in only one position. A single photograph was taken. Sexual abuse was diagnosed. The child was examined 7 months later, when no photos were taken but the diagnosis was confirmed. A third examination was carried out 7 months later again, 2 photos were taken and the outcome was the same. At the fourth examination, 11 months later, 11 photos were taken and this time the joint finding of both experts was that there was no evidence of sexual abuse. The photographs taken previously had proved to be unreliable because they did not show what was apparent with binocular vision. The experts contended that the 'gold standard' must be the physical examination. Interestingly, Dr Heger was the additional expert consulted in that case and the case also collapsed in the face of an unexpected reversal of the medical opinion. Holman J was careful simply to recount the evidence and draw attention to the potential danger in relying upon photographs. He suggested that the professional bodies concerned should consider whether, in the light of the case, any parts of their guidance should be revised. Secondly, whilst acknowledging that intimate examinations must be minimised, re-examination may nevertheless be preferable to a potential miscarriage of justice and irreparable harm to the child as well as to her parents.

53 The parallels between that case and the present one are obvious. From my experience in this case I would respectfully endorse what Holman J had to say about re-examinations. As for the dangers of relying on a colposcopy photograph in the absence of an examination, that too is illustrated by the present case. To that I suggest there must be added two points. First, that where the examination raises suspicions of sexual abuse, the child should be examined in more than one position. Second, that video colposcopy is the best way of avoiding the child being re-examined.

54 I end this (probably overlong) judgement with a brief survey of physical signs which may elicit different responses depending on which side of the Atlantic the examination takes place. Despite hearing the views of Dr P and Dr Heger, I do not consider I am equipped to pronounce on who is correct, but I do draw attention to the fact that differences of approach may still exist in respect of the following clinical findings:

(a) The size of the hymenal opening.
(b) The child's behaviour on examination.
(c) 'Attenuation' of the hymen.
(d) Width of the posterior rim.
(e) Angular or irregular features in the posterior/lateral location.
(f) Notches or clefts.
(g) Bumps.
(h) Rolled or thickened edge.
(i) Erythema.

55 Finally, I wish to record that I shall, at the parties' invitation, give permission for a transcript of this judgement to be disclosed to the Area Child Protection Committee and to the Health Trust for the area concerned. Copies should also be made available to Drs M, P and Heger for their information. I also authorise disclosure to those within the Local Authority concerned to assist in any review of procedures. I intend to give judgement in open court with the identity of the parties, social services personnel and the doctors concerned (save for Dr Heger) anonymised. This is to emphasise that the intention is not to pillory individuals but to identify ways in which practices and procedures may be improved, both in the fields of medicine and social services. I shall make available a short summary should there be any media interest.


His Honour Judge Crispin Masterman
Cardiff Civil Justice Centre
21 April 2007