England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE PRINCIPAL REGISTRY
FAMILY DIVISION
(MR JUSTICE BAKER )

		Royal Courts of Justice Strand, London, WC2A 2LL
		30 January 2013

Lord Justice Thorpe:

1. It is always a great responsibility for a trial judge to have to decide whether or not an adult member of the family has abused sexually a minor member of the family and that task fell to Baker J in the case of A-H in February 2012. He gave his judgment in March and a supplemental judgment in April, and in those judgments he expressed the conclusion that the eldest child of the family, T, had indeed suffered the sexual abuse of which she complained at the hands of her stepfather.
2. She was clear that the only sexual abuse that she had suffered was penetrative sexual intercourse that had occurred not on a single occasion but on a number of occasions between the ages of 11 and 13. For it was at the age of 13 that she rang the alarm bells at her school, resulting inevitably in social work investigation and referral to a paediatric consultant.
3. The appeal before us today has focused on that paediatric examination and indeed Mr Bellamy QC, who appears for the appellant father, has with his characteristic realism ultimately accepted that he has to hang his submissions on his criticism of the consultant paediatrician, Dr Smith. The nature of his criticism is that in her written report she cited passages from the guidance of the Royal College of Paediatrics and Child Health (2008) with partiality, including headline statements which seem to establish that penetrative sexual intercourse with a minor may result in no physical signs on subsequent paediatric investigation without drawing attention to the fact that research findings suggest that in cases of repeated penile penetration the absence of any resulting physical signs is unusual. As he would say, in three quarters of the cases there will be observable signs and only in one quarter will there be no observable sign, physical injury or trace left from the repeated penile penetration.
4. He points to the fact that he was only instructed eight days before the trial. He did not have in his hands a copy of the Royal College guidance, nor did any other member of the bar, nor did the judge. And accordingly he submits that this process of trial and judgment has run off the road, since effectively all involved have placed reliance on what is a partial medical report. Had the material been in his hands he would have cross-examined Dr Smith more effectively and would have revealed her partiality and the judge would accordingly have written his judgment in different terms and perhaps arrived at a different conclusion.
5. The appellant's notice was not sealed until 8 August and it was supported by a skeleton argument of 29 July. Mr Bellamy's skeleton argument and appellant's notice were considered by Munby LJ who referred the application to the full court. His order of 12 September says:

"….there is one point which puzzles me, though it may be that nothing will ultimately turn on it, It is the point raised in # 43c of Mr Bellamy's skeleton.

The allegation,n found proved by Baker J ... is of penile penetration by an adult of a girl still not quite 12 at the time. According to her ABE interview ... he put his penis 'right in' and on more than one occasion."

6. Baker J seemed to have accepted counsel's characterisation of Dr Smith's evidence based on a full genital examination as revealing no medical signs which were in any way supportive of or consistent with the allegations. So Munby LJ concludes the observation by saying:

"I assume that Dr Smith was asked in oral evidence ... whether the state of T's genitalia was 'consistent' with, even if not necessarily indicative of, penile penetration by an adult. What was Dr Smith's response?"

7. Well, the oral hearing that he directed came before Ward LJ and my Lady, Rafferty LJ, on 5 November. In giving his short judgment, Ward LJ took up the point. He said:

"The medical examination of the girl is recorded by the judge in paragraph 18 of his judgment, where he says that the medical examination of T by Dr Hilary Smith revealed no physical evidence to support T's allegation that she had been sexually abused.

3. The judge was referred to this by Mr Bellamy in his closing submissions but he does not adequately, it may be said, explain why if there was that extensive sexual intercourse there was no physical evidence to support that activity.

4. That was the ground which troubled Munby LJ and it troubles me. It does, it seems to me, justify by itself an appeal."

8. That was the ground which troubled Munby LJ and it troubles me. It does, it seems to me, justify by itself
9. We today have the advantage not only of the initial report of Dr Smith but also a transcript of her evidence. Mr Bellamy's skeleton of 29 July had not brought out the point that had attracted Munby LJ, and it was nowhere to be seen in the grounds of appeal supporting the appellant's notice. So, plainly, as a matter of correct procedure, the grounds needed to be amplified. Unfortunately that was not attempted until an application was received in this court on 22 January and it was only this morning that we had the opportunity of, as it were, validating the expansion of the grounds to include the one ground upon which Mr Bellamy hangs his appeal.
10. I think the medical report furnished by Dr Smith and dated 18 April deserves some closer examination. She sets out her qualification and the referral by the relevant social worker in the case. She records the date and place of the examination in paragraph 3 and that T was accompanied by her maternal aunt. Also present was the specialist registrar in paediatrics and a specialist safeguarding nurse.
11. In following paragraphs, 4 through to 6, the doctor sets out the available background from the social worker, from the police, from the history she had taken from T and then the family history. Then, in paragraph 8, the medical history and consent are recorded. In paragraph 11 Dr Smith comes to the physical examination, describing T as a mature child looking older than her actual age of 12, well advanced in puberty. She examines T for physical injuries, which according to T were the result of an assault that she had suffered at the hands of her mother. Then in paragraph 13 Dr Smith comes to the important examination of the genitalia. This was a very thorough examination. She used a colposcope and subsequently a Foley catheter to enable her to examine with minute care the child's hymenal opening.
12. She concluded by recording that the physical injuries were consistent with the child's complaint. In relation to the genital examination, she recorded very clearly in her final paragraph:

"There are no ano-genital signs to either support or negate [T's] report of sexual abuse. It is well recognised that a high proportion of children who have been sexually abused have no ano-genital signs at examination."

13. Further details of the research are given in the appendix. That appendix is, it seems to me, a careful and helpful addition to the doctor's report. It includes headline quotes from the essential publication, namely "The Physical Signs of Child Sexual Abuse: an evidence-based review and guidance for best practice", Royal College of Paediatrics & Child Health: London, March 2008.
14. We have the excerpts from that review that Mr Bellamy relies upon and it is indeed the case that the two quotations selected by Dr Smith are followed by two pages of material drawn from research reviews which establish his submission that repeated sexual intercourse is more likely than not to result in physical signs. And it is also to be observed that the evidence statement that concludes this section in the guide is not included in Dr Smith's abstract. However it would not have altered the general flavour of her citation.
15. So what seems to me to be important is to see what it was that Dr Smith added when she came to give her oral evidence.
16. Mr Bellamy makes the point that his cross-examination would have been perhaps different and more challenging had he had the Royal College guide. He says that he had to do without it and tread delicately given that he was for the alleged abuser and he had in his favour at least the absence of any corroboration within the medical evidence as it stood. As to that, it must be observed that the doctor's initial report had been in the hands of Mr Bellamy's instructing solicitors for nigh on ten months before he came to the case. It would undoubtedly have been the subject of directions orders. Never on behalf of the appellant, as far as I understand it, had there been any application for the disclosure of the Guide, which after all is a public document, nor was there an application for any other expert to be brought into the case. Dr Smith was there, not so much to give expert evidence as to give evidence of fact as the treating doctor, the first paediatrician instructed. She was careful to abstain from a statement of opinion other than perhaps in one paragraph of her report where she observed that T's account of her experience was essentially factual in its presentation. However I do not take that to be an expression of opinion. It is simply a statement of how the child had reported.
17. But the key to the anxiety expressed by Munby LJ comes in the transcript at page D73 in the bundle where Baker J, having asked Mr Bellamy if he wanted to continue to cross-examination, said that he had one more question and then from line 17 to 53 on that page he puts to Dr Smith that she had not ascertained from T on how many occasions sexual intercourse had occurred, and Dr Smith explained that it was not necessary for her to do so. As she said,

"It was sufficient that [T] had reported to me that it had occurred on one occasion for me to incorporate that piece of information into interpretation of examination findings."

18. Mr Bellamy then continued to press her on the absence of any sign of injury or damage to the genital area and the doctor explains very clearly, particularly at line 38:

"...in somebody who is physically mature -- and [T] was at the time I saw her physically very mature -- then intercourse could have occurred on any number of occasions without there being any signs physical. What we are looking for, when we are examining children, is signs that intercourse has caused damage to tissues."

She then points out that damage to tissues can heal and continues:

"So even if there had been previous intercourse that had caused damage, given that at the time the referral was made to us the last episode reported was three weeks ago, and by the time I saw her it was five weeks ago, I would not necessarily have expected to see any changes whatsoever."

And then she concludes, in answer to this question from Mr Bellamy:

"So the medical evidence does not take us one way or the other?"

"As I said in my conclusion, it neither supports nor negates her allegation."

19. So it seems to me that the absence in Mr Bellamy's hand of the Royal College guide made not a jot of difference. In any event, it was the responsibility of those presenting the appellant's case below to obtain a copy if they thought it was relevant to the probing of the medical evidence. The key point was put: does it make a difference that this child was complaining not of a single act but of an unspecified number of irregular acts over a period of two years? The doctor explained clearly that it did not make any difference to her opinion. I can see absolutely nothing in the submission of Mr Bellamy that would drive us to any criticism of Dr Smith or to the thoroughly unsatisfactory conclusion that the whole process of investigation and trial must be undertaken afresh.
20. I would only like to add that in my opinion the initial report of Dr Smith was a model of how such tasks should be undertaken and how a report on an investigation should be written. To suggest in this court that she has been guilty of some sort of professional partiality seems to me less than fair when the suggestion was never put to her when it needed to be put, namely in the course of trial.
21. So for all those reasons I will simply dismiss this appeal.

Lady Justice Rafferty:

22. I agree.

Lord Justice Kitchin:

23. I also agree.

Order: Appeal dismissed