England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE FAMILY DIVISION
(HIS HONOUR JUDGE VILJOEN)

		Royal Courts of Justice Strand London, WC2 Friday, 25th October 2002

Friday, 25th October 2002

1. LORD JUSTICE MANCE: I will ask Hale LJ to give the first judgment.
2. LADY JUSTICE HALE: The mother appeals against the order of His Honour Judge Viljoen, sitting in the county court jurisdiction of the Principal Registry of the Family Division, made on 8th May 2002 following a three-day hearing. The material parts of the order for this purpose are those that provide that "there be weekly visiting contact by the child to her father to be arranged by the CAFCASS Officer at a convenient contact centre", that "the mother do make the child available for such contact" and that "the Child and Family Reporter do prepare a report on the issue of contact and on how future contact can be extended to include staying contact. Such report to be filed by 8th August 2002".
3. The parents have known one another since their childhood. They met while their respective mothers were living in Salvation Army accommodation in East London. They had both suffered sexual abuse in childhood, the mother between the ages of seven and nine from her mother's boyfriends, the father from rapes in the children's home where he was accommodated whilst in care. They are both intelligent, well motivated people who have overcome whatever obstacles were presented by their family and other circumstances; they have studied and they have gained professional qualifications, the mother as a social worker and the father as a housing specialist.
4. They had a whirlwind romance in 1983 when they met again aged 20 and 19. The father was still a student studying at university away from London, so it was some years before they set up home together. They bought their matrimonial home in 1994. Their only child, J, was born on 23rd September 1996, so she is now just six years old. The mother took maternity leave, intending to return to work. Indeed she did so, but arrangements with two child minders broke down because of the mother's complaints about certain matters which she did not like about their care of the child. Since then she has been the full-time carer for her daughter.
5. From quite early on it is plain that the mother found it difficult to trust the father to play an ordinary fathering role. At the age of three months she complained of the father singing a popular song to J with what she considered to be inappropriate lyrics: "You're too sexy for your clothes". Aged 10 to 11 months she noticed J sitting with her legs split and playing with her nipples. Aged two to three she noticed the way that J played with her Barbie doll, undressing it from the waist down first. The father's evidence was that because of the mother's suspicions he withdrew from bathing, toiletting or dressing J when she was about nine months old and that by June 2000 sexual relations between the parties had been affected and the father slept in the living room.
6. In late 2000 or early 2001 there was an incident when the mother went out early before J was dressed, and when she got back she noticed that J had tights on but no knickers. The mother said that J told her that daddy would not let her put her knickers on and was touching her bottom. Early in 2001 J told her mother that her father had been looking at "her private bits". Matters came to a head in June 2001. On Sunday 24th June the father took J out for the day on Hampstead Heath, and after they got back the mother says that J was manipulating her nipples and said, "Daddy was doing this to me." Then on Wednesday 27th June 2001, in the early hours, the mother says that she found the father at J's bedroom door. The father says that J came to see him in the living room and he took her back to bed but not into her bedroom. The mother says that J told her later that, "Daddy was touching my front bit", and pointed to her private parts. The mother was so shocked by this that, after the father had gone to work, she changed the locks so that he could not return and he had to go to stay with his mother.
7. The father denies any allegation that he has in fact abused his daughter in the ways suggested. However, in a letter dated 10th July 2001 to the mother he did not deny that J had said these things to her mother. He simply claimed that they were lies and he did not know why she was telling them. It is a sensitive letter that the father wrote. He understood, at that time at least, how the mother felt about it and agreed that contact should take place with the mother present, and the mother produced a written agreement which they both signed.
8. Contact carried on in that way for about two months. The father decided that their relationship could not be repaired and wrote proposing terms for a divorce. In October he presented a divorce petition. This was based on the alleged fact that the mother had behaved in such a way that it was not reasonable to expect him to live with her. The first of the particulars given in support of that was that she had made "unfounded" allegations of sexual abuse. That petition was put in after the parties had argued in September. On 16th September 2001 they had an argument about collecting the father's property from the former matrimonial home, and thereafter the father's contact with J ceased. He has not seen her since.
9. The mother reported the allegations to the police on 19th September and to the social services on 20th. A social worker interviewed J on 9th October to decide whether she was capable of being interviewed in accordance with the Memorandum of Good Practice. During that interview J repeated her allegation. A "memorandum" interview took place on 15th October 2001. We have, of course, not seen the video of that interview. The judge describes how the woman police officer, despite skilful interviewing, elicited nothing in the way of an allegation of sexual abuse. J did say that her father was naughty, but that was because he had hit her on her knee with a fairy wand. The social worker did elicit touching, although the judge said that this was in answer to a leading question. The father was then interviewed by the police and denied that any abuse had in fact taken place. No further action was taken. The impression gained by the social worker was that the police officer had believed what the father had said.
10. The father applied for contact. The reasons given for the application on the form stated that the mother had "erroneously and maliciously" accused him of sexual abuse. There was an order for interim supervised contact at the Thomas Coram Centre and for a report under section 7 of the Children Act 1989 from social services. That contact did not in fact happen. The mother says that because there was an issue of resources it was not made available to them. Witness statements were exchanged and a section 7 report was produced by Angela Belmonte dated 3rd April 2002.
11. That is an extremely full and, to my mind, very sensitive report indeed. It reports upon how the police and the social services' inquiries went. It reports on J's fondness for her father and her wish to see him again. It recognises the reality of the mother's belief in the allegations and proposes supervised contact. In paragraph 95 she says:

"The Local Authority therefore, sees no reason why J cannot begin to have supervised contact with her father, as were the understandings prior to 16th September 2001. It is recommended that such a re-connection process be conducted by a neutral, independent, monitoring body able to provide structure and an assessment, to provide a view to future contact arrangements. The Local Authority recommends a referral to Accord contact centre."

The report did raise various concerns, that J had been exposed to an environment highly sensitive to sexual abuse and about the currently high levels of anxiety and tension between the parents while they went through divorce proceedings.

12. The final hearing came before His Honour Judge Viljoen and took three days. He gave judgment on 2nd May 2002. He had heard the parties give evidence. He saw the video and heard the tape of the father's police interview. He puts the case in this way:

"The father does not seek to say that the mother is manufacturing the evidence about the allegations. He accepts that J must have told her mother this. He disputes the truth of those statements, and he has done so right the way through, and the mother admits that he has always denied it. The father is concerned that she [J] has made these allegations, and asks himself why and cannot find an answer. It would be speculative for me to say why she has made these allegations, but I take note of the fact that she has grown up in an environment where her father was not allowed to do what other fathers normally do with their children, such as dressing and bathing them. She had experiences at nursery school that were novel to her ..."

He goes on to mention some of those experiences. When dealing with each of the parents he says:

"I have carefully listened to the evidence, and particularly noted the demeanour of mother and father in the witness box. I have concluded that mother is over-sensitive about sexual abuse. I suspect this is probably due to her sad experience as a child. ... The evidence is such that the mother came across as somebody who disliked the father intensely. Her dislike is so strong that it adversely affects her judgment about him. She [is] a very intelligent, very articulate and, if I may say so, very pleasant person in the witness box. She has a strong personality. But there is absolutely no charity whatsoever towards the father. I am afraid this has coloured her evidence.

The father, on the other hand, has given evidence clearly, again articulately, again an intelligent man, well spoken, but he showed sympathy towards the mother, he could understand where she was coming from, and in order to try and assist her he has over the years withdrawn from the parental behaviour that he might otherwise have manifested. He did so in order to try and allay the mother's fears and to build up trust, but sadly he has not succeeded. He lived in a household where the climate was one of perpetual suspicion. But he is a rational person. He gave his answers with measure, and I am satisfied with truth, and consequently I have concluded that there has been no sexual abuse."

He had earlier said that this was not a case where he simply could not be satisfied that sexual abuse had taken place. He made a positive finding that it had not.

13. As far as the memorandum interview was concerned, the judge did not give it much weight; it was five months after the last incident. J had not volunteered the information until a leading question was asked by the social worker. He therefore concluded:

"This is a father who dearly loves his daughter, and she him, and the sooner that contact can be re-established the better."

He therefore made the order which I have recited, which did provide for contact at a contact centre, but said nothing about whether and to what extent such contact should be supervised. 

14. The mother applied, acting in person, for permission to appeal, and on 23rd July 2002 Thorpe LJ granted it. He had two reasons for doing so. First, as it was not denied that J had said these things, given that they were not true why was she nevertheless saying them? Second, had His Honour Judge Viljoen been right to take an unfavourable view of the mother because she had received and opened a letter from the father's employers which had been couriered to him at the matrimonial home on 21st September 2001? In post judgment discussion on 2nd May he said that he thought that that was a vindictive act by the mother. The mother complains that that left out of account the fact that she had phoned his employers to explain that he had not got the letter. The fact remains that she had not in any way communicated the contents of the letter to the father. The letter had asked him not to turn up at work on the Monday and he had done so, no doubt to his considerable embarrassment.
15. Thorpe LJ gave permission to appeal and he granted a stay of the contact order. Unfortunately his order was not properly drawn up and so it did not include the stay. The matter therefore came back on 14th August before His Honour Judge Viljoen, sitting in his home court in Watford rather than in the Royal Courts of Justice. The CAFCASS officer had produced a report stating that the mother was not cooperating with the introduction of contact because she was seeking leave to appeal and was therefore unwilling to agree to J having contact even at a contact centre. However, on 14th August 2002 the mother had sent a letter to the judge saying that she agreed to supervised contact at an appropriate contact centre and always had. So on 14th August the judge, not being aware that a stay of his earlier order had been granted by this court, directed the CAFCASS officer forthwith to comply with the first two paragraphs of his Order of 8th May and, in the light of the mother's letter to the court, directed the CAFCASS officer to assist the parties to make the necessary arrangements for contact to start forthwith at a convenient contact centre. He also directed the CAFCASS officer to make a report by 18th November and a further review to take place (whether or not the appeal had been heard) on 25th November before him, both parties to attend.
16. The CAFCASS officer has in fact referred the case to the Coram meeting place and the management has accepted to assess the case, but it will take eight weeks from receipt of the relevant court papers to assess the appropriateness of offering observed contact at that centre and to interview the parties. That is, therefore, the state of play as we hear this appeal.
17. The mother wishes to challenge the finding that no sexual abuse took place. She also challenges the form of the orders made. She reiterates before us that she accepts that there should be contact. Before us she did not insist upon that type of supervision or observation where observers take detailed notes of the interaction between parent and child. She pointed out that resource difficulties had meant that the first order had not been implemented. What she was concerned to achieve was contact in the protective presence of an independent person. I understand from that that the mother would accept contact at the Coram meeting place should the case be accepted. She also stated that she would accept meetings arranged in the presence of a CAFCASS officer.
18. In her oral and written presentations to this court, the mother has used some extravagant language about the judgment. She has talked about "corruption", "conspiracy" and "collusion" in "perverting the course of justice". She has used this extravagant language in the course of making her submissions to us with great dignity and with great courtesy. That language is, therefore, unfortunate because it obscures the force of the real point behind her submissions.
19. The submissions were on the following lines. The father had accepted at the outset that J had said these things to the mother, albeit denying that they were true. Yet in his divorce petition he had accused the mother of making "unfounded" allegations against him, and in the contact application he had accused her of "erroneously and maliciously" making allegations against him. Yet her position is that her child has said these things to her and to others. She has said them to a social worker. She has said them on the video. The ethos of social services departments -- and of course the mother knows this because she has worked in child protection in social services -- is that a child who says such things should be believed. So, of course, as a responsible mother, she has to take steps to protect her child and she should not be accused of being malicious or vindictive in doing so.
20. In that connection she criticises the judge for failing to deal with the discrepancy between the father's divorce petition and contact application and his evidence to the court. She also criticises the judge for accusing her of being vindictive as a result of the incident with the letter without mentioning that she had let the employers know that it had not been received. She went on later in her submissions to mention matters which she said she had mentioned in oral evidence in the court below but which do not appear in her witness statements or, indeed, in her written submissions to this court, suggesting things that the father had said in their exchanges about these matters had contributed to the climate of suspicion within the household, in particular making light of the matters about which she had raised her concerns and even, on an occasion when she had consulted a friend about the song lyrics and the friend had said that this was nothing to worry about, that she had reported this to the father and the father had said that she was naive to think that. These were matters upon which the judge had made no ruling in the course of his judgment. I do not find that in the slightest bit surprising, because they were not mentioned in the written witness statements, and it would have been very difficult for him to deal fairly with them in the circumstances.
21. There is nothing at all in the material before us to substantiate the wild adjectives that the mother has used in her submissions to us. The judge had to determine the case on the basis of the evidence before him. He had the petition and the application, and no doubt he was able to contrast the language used on the father's behalf by his lawyers in those documents with the much more sensitive and moderate stance that the father had himself taken when giving evidence in court. It was, of course, for the judge to draw his conclusions as to the facts, and, again, on the material before us, he was certainly entitled to reach the conclusion that he did. Whether this is expressed as being satisfied that no abuse took place or not satisfied that it had taken place makes no difference as far as the law is concerned; they both amount to a finding that there has been no abuse.
22. As to the form of the order, however, Miss Hodes on behalf of the father has tried to persuade us that it was meant to achieve just what the mother is now saying she is prepared to accept. But neither of those orders makes any clear reference to the need for independent observation to ensure that there is no opportunity for the sorts of conduct reported by J to her mother to occur; and the question for us is whether there is a need for that independent observation, at least in the short-term.
23. In my view it is quite clear that there is such a need, and I say so for three reasons. The first is that the priority in this case is to get some sort of contact going again. J has not seen her father for more than a year, yet the section 7 report was quite clear that she was fond of him, that she wanted to see him again and, indeed, that she was not herself in any way concerned about the matters which are so concerning the mother. The judge himself recognised the need to tread with some care in making the reintroduction and, as I read the section 7 report, in particular the passage I have already quoted, it was recognising the need for care independently of whether the allegations were made out. Second, it must be of concern that a child who at the time was not yet five was saying these things, whether for the reasons given by the judge to do with the somewhat unusual and isolated nature of her family life and the atmosphere for whatever reason in the home, or whether for some other reason. There must be a need to tread with caution in making the reintroductions, and that is the priority. Third and perhaps above all, contact is unlikely to work or be enjoyable for the child or for the father unless the mother feels less anxious about it.
24. This is a situation in which it is entirely possible for both parties to be right, in the sense that the father did not behave inappropriately with his daughter but the mother retains a real belief that he did based on what her daughter has said. In an ideal world the mother should be prepared to accept the findings of the judge and go along with them. But I recognise that that is often a very difficult thing to do. It leaves out of account all sorts of other factors which will make it difficult for her to do so, above all, her strongly protective view towards her child. It is for those reasons that I accept that there is a need, for the time being, for contact between the father and the child to be supervised in the sense in which I have described it.
25. A further possibility has been mooted, first by Thorpe LJ and then by the mother, of transferring the case to the High Court with a view to separate representation for the child and possibly instructing a child psychiatrist to try and investigate why the child has been saying these things. In my view those possibilities should be kept in mind and may become appropriate, at least one of them, in due course. For that reason, I would direct that the papers in this case be sent to CAFCASS Legal for them to consider whether or in what circumstances that time might come. But the priority at the moment must be to make progress with the supervised contact in the way that I have suggested, and that has to take priority over any question of transfer to the High Court or the instructing of a child psychiatrist. It must also be taken into account that a child psychiatrist's investigations could in themselves be abusive of the child.
26. So what order from this court will best take matters forward? I would propose that the first two paragraphs of the order of 8th May, which are the real source of the mother's discontent, be set aside. The reference to staying contact in paragraph three is, for all the reasons that I have given, wildly optimistic and premature. The substance of that paragraph is water under the bridge because the CAFCASS officer has already made the report which it envisaged.
27. I would propose that, instead, this court prefaces its order with a preamble that this court is satisfied that it is in the best interests of J to have regular contact with her father to be established as a matter of urgency, but for the time being in a setting where there is the protective presence of an independent person able to observe this child with her father in an unobtrusive way. The order will require both the mother and the father to co-operate with the referral to, and assessment by, the Coram meeting place. In the meantime the CAFCASS officer is to arrange at least one and preferably two meetings between the father and the child at the CAFCASS offices before the hearing which is due to take place on 25th November. The mother is to bring the child to any appointment notified by the CAFCASS officer. This judgment and the order should be copied urgently to CAFCASS Legal with a view to their considering whether any further steps should be taken to promote the interests of the child in these proceedings.
28. To that extent I would allow this appeal.
29. LORD JUSTICE MANCE: I agree with the observations and the conclusions of Hale LJ. I only record that some of the complaints made against the judgment below not only relate to matters which were not raised in any witness statement or at all prior to oral evidence at trial, but are complaints now raised before us which were not mentioned explicitly in any way in the notice of appeal, so that counsel for the father had no chance to investigate them. She had no memory or note of, for example, the suggested statement by the husband, "Oh, you would be naive to believe that", which according to Mr Alexander was made after she had received some comfort from a friend that the friend did not think there was anything significant in the song which Mr Alexander had sung when Jennifer was a few months old. I also add that I cannot myself attach significance to the suggested difference between the father's evidence that he did not smack J compared with the answer given by J on the video recorded in the transcript at page nine, lines seven to nine, to the effect that he had hit her with a wand on the knee and also had told her to shut up. Nor can I attach significance to the father's statement:

"If you believe I have done those things how could you stay with me?"

Again, there is no reason to think that the judge attached any significance to these matters either.

Order: Appeal allowed. Order as above.