ON APPEAL FROM THE FAMILY COURT AT SWINDON
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE MOYLAN
LADY JUSTICE ASPLIN
| M (Children)
|- and -
- and –
- and –
Mr Colin Morgan (instructed by Wiltshire Council) for the Local Authority
Mr Andrew Bond (instructed by Forrester Sylvester Mackett Solicitors ) for the Mother
Mr David Josty (instructed by Wansborough Solicitors) for the Father
Hearing dates: 3 December 2020
Crown Copyright ©
Background in brief.
(1) The LA seek permission to withdraw the proceedings on the basis they are unlikely to be able to satisfy the attributability condition under s 31 CA 1989. The court is referred to the local authority position statement filed with this case summary.
(2) The parents support the applications to withdraw and are willing to engage with the CIN planning suggested by the LA.
(3) The Guardian does not support the application and invites the court to test the evidence.
a. Gonorrhoea is transmitted most usually and almost entirely by penetrative sexual intercourse or direct genital exposure to freshly produced genital secretions and/or ejaculate during sexual activity including finger-to-genital transfer of fresh ejaculate or pre-ejaculatory fluids;
b. The current conventional wisdom among both UK and US paediatricians is that a finding of gonorrhoea in a pre-pubertal child "over four years old" must be taken as prima facie evidence of sexual abuse until proven otherwise.
c. The interval between exposure to infection and development of symptoms of genital infection with gonorrhoea varies considerably between adult men and women and between women and pre-pubescent girls. The majority of adult pre-menopausal women infected with gonorrhoea will have no obvious symptoms and can carry the infection for many months up to about two years before their immune system gradually diminishes and clears the infection. In pre-pubescent girls, it is clear that among those who do develop obvious symptoms the incubation period is "very short as in adult men", which he described as being within 1 to 14 days of exposure in the case of urethral gonorrhoea. "The incubation period for gonococcal eye infection is likely to be very short as for urethral infection."
d. Since the balance of probabilities demands that in any paediatric case the infection must be considered prima facie evidence of sexual contact, then R may have been exposed to infected fluids initially either in or over the genital area without developing genital symptoms and with subsequent accidental self-inoculation into the eye causing the most immediately obvious signs of disease; alternatively ejaculation of infected fluids over the face with subsequent accidental self-inoculation onto the vulva or into the vagina with this latter site of infection remaining symptomless; or, accidental exposure in her eye from one or other of the two children who were simultaneously diagnosed with conjunctivitis, of unspecified cause, in the same week as R.
e. If the original site of the infection was genital, then the lack of any genital symptoms precludes any possibility of determining the incubation period of the original acquisition. In this scenario subsequent accidental self-inoculation into the eye would have occurred "no more than an absolute maximum of two weeks – and most probably one week or less – prior to the first development of ophthalmic symptoms being noticed. Likewise, if the original site of infection was ophthalmic then the incubation period was most probably one week or less".
f. Dr Cutland was apparently unaware that two other children in the same nursey were diagnosed to have conjunctivitis in the same week as R and that may "significantly affect the overall balance of probabilities – or possibilities – in this case". Accurate diagnosis in General Practice of each of the children's eye infections is "inherently difficult".
g. R was found to have severe and obvious gonococcal eye infection. This diagnosis is not in doubt. Infection would probably have been acquired within a week of onset of symptoms.
h. R probably had symptomless vulvovaginal gonococcal infection but the finding is "less robust" as the sample was taken in suboptimal conditions by her mother, albeit under the direct supervision of the Consultant paediatrician. If accepted to be genuine it is not possible to determine which site of infection was the original source and the incubation period is uncertain.
a. The swab from R's once infected eye taken on 13 February was negative, but R had been treated with an antibiotic beginning seven days previously. The vulvovaginal swab revealed a positive result for gonorrhoea which may remain positive for up to two weeks after correcting antibiotic treatment is commenced. The possibility of accidental transference of gonococcal material from R's eye may have occurred, and the possibility of a false positive could not be excluded.
b. In a section headed "Adjustments to answers to questions put by the Instructing Solicitor" , Mr Greenhouse confirmed that the most likely mode of primary infection was that R may have been exposed to infected fluids initially either in or over the genital area without developing genital symptoms and with subsequent accidental self-inoculation into the eye causing the most immediately obvious signs of disease.
c. There remained the possibility that the vulvovaginal swab was contaminated but, if a true positive then, on the balance of probabilities, vaginal infection is likely to have preceded that of the eye, but the incubation period from the original vaginal acquisition is entirely uncertain. In these circumstances, R is likely to have infected the other children in the nursery; but if a false positive then she may have been infected by them. The sequence of infection he postulated was because there was "one verbal suggestion of inappropriately sexualised language having occurred some three months prior to the development of overt eye infection", although there seemed to be no "obvious pointers to the original source of the infection of the precise timing of acquisition".
Judgment under appeal
"The [LA's] position on these matters has varied over the course of the proceedings, but this is no criticism of them as I am satisfied that they have at all times attempted to analyse in a serious and sincere way both the expert evidence (which, it must be said, has had some inconsistencies within it and has at times been confusing) and the difficult procedural issues (e.g. how widely should an investigation be pitched to produce a fair and meaningful trial?)".
"Both parents wholly support the [LA's] conclusions and are, it seems to me sincerely, willing to continue to work with the [LA] outside the court arena if the case is concluded by my allowing the [LA's] application."
(i) Whilst it is almost always in the interests of a child to ascertain as much information about what abuse has occurred by whom and when, especially perhaps sexual abuse with its potentially long lasting psychological effects, where a trial would be unlikely to reach a meaningful conclusion on these matters that interest should have significantly less weight attached to it than when the situation is otherwise.
(ii) The evidence suggests that if the timetable were taken at its fullest there would potentially be a very large group of possible perpetrators, perhaps including significant numbers of family members, friends and teachers and helpers at [R's] nursery, possibly also the parents of other children at the nursery who also had eye infections at the same time. The time and expense needed to investigate all these people properly would, in my view, be disproportionately large. Although it is rare to raise financial issues in this sort of context it is right to note that such an exercise could also have tied up a disproportionately large amount of local authority, court and legal aid resources.
(iii) Even if the court accepted the orthodox view that gonorrhea infections are indicative of sexual abuse, the inconsistencies in the medical evidence in this case, if exploited in cross-examination, might render it very difficult for the court to reach any satisfactory positive findings against anybody.
(iv) If, at the end of a trial, a significant number of people were left in the pool of perpetrators, it is unlikely that the actual plans the local authority currently has for ensuring the children's safety would be changed by such a finding. The current evidence suggest that it is most unlikely that a court would be able to find a small group of perpetrators or identify one perpetrator. Whilst somebody might make full admissions in cross-examination, that is fairly unlikely in a case like this where there appear to be no circumstantial evidence pointing to any one person as a greater possibility than any other.
(v) Although the courts are loathe not to attempt to protect children by seeking to identify potential risks of future harm ( see for example Lord Nicholls in Re O and N  UKHL 18) there are some cases, and this it seems to me is one, in which it is not possible to do that in a way that is fair and meaningful."
The Grounds of Appeal
Ground 1 – The court erred in its approach to the question as to whether there was a realistic prospect that after a fact-finding hearing a pool finding would be made which included the parents.
Ground 2 – The court was wrong to give no or no proper weight to the circumstantial evidence in the case which suggested a real possibility that one of the parents was the perpetrator of the abuse. The circumstantial evidence warranted further investigation through a fact-finding hearing.
Ground 3 -- The learned judge placed too much weight on the purported inconsistencies in the evidence of Mr Greenwood when in fact his written evidence strongly suggested that the child had become infected as a result of sexual contact and the other evidence was more relevant to whether the parents were likely perpetrators of the abuse including the timing of the infection.
"reasons for judgment will always be capable of having been better expressed … reasons should be read on the assumption that, unless he has demonstrated the contrary, the judge knew how he should perform his functions and which matters he should take into account. This is particularly true when the matters in question are so well known as those specified in section 25(2) [of the Matrimonial Causes Act 1973] . An appellate court should resist the temptation to subvert the principle that they should not substitute their own discretion for that of the judge by a narrow textual analysis which enables them to claim that he misdirected himself."