England and Wales Family Court Decisions (other Judges)

IN THE FAMILY COURT                                                                 Case No: MP13P00132  

SITTING AT NEWCASTLE-UPON-TYNE

                                                                                                                             The Law Courts
                                                                                                                                 The Quayside
Newcastle-upon-Tyne
NE1 3LA

IN THE MATTER OF THE CHILDREN ACT 1989

AND IN THE MATTER OF: R (A CHILD)

Date:  Wednesday, 11^th February 2015

Before:

HER HONOUR JUDGE MOIR

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Re: R (A Child)

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Counsel for the Father:  Not Known

Counsel for the Child:  Not Known

Hearing dates: 11^th February 2015

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APPROVED JUDGMENT

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JUDGMENT

1.                  I am concerned with the welfare of A, who was born on 2^nd March 2007, so very nearly 8 years of age.  She is the daughter of F and M.  F made an application for contact which was issued on 3^rd April 2013.  There have been previous proceedings in which he was given permission to withdraw his application for contact.  Within the order made on 29^th June 2012, various recordings were made, namely:

“(i)    F is currently undertaking a sexual offenders programme; the earliest date for its completion is the end of 2012, however it may not be completed until mid-2013. 

(ii)     F intends to make an application for direct contact with the child, A, upon successful completion of the programme. 

(iii)    Until such time as further or other contact is agreed or ordered by the court, the parties agree that F will have indirect contact with A limited to sending a Christmas card and birthday card to her each year.

(iv)    The indirect contact will be sent by F to A via the solicitor for M. 

(v)     F will notify M through her solicitor as and when he intends to pursue an application for further contact with A.”

2.                  M has been informed and served with these proceedings.  She has chosen not to be involved within these proceedings and no solicitor has represented her.  F had not been married to nor was he living with M at the time of A’s birth, but he had contact with A from her birth until April 2008.  In 2008, F was arrested and thereafter convicted of a serious sexual offence against a 15-year-old girl.  On investigation it was also found that he had a large number of images of child sexual abuse upon his computer.  He received a custodial sentence on 10^th July 2008.  At the time he was convicted, he was 38 years of age and had no previous convictions.  The learned judge in the criminal proceedings set out the factual background and I read from the sentencing remarks: 

“In August of last year, F accessed a site which is designed to provide a means of communication essentially between teenagers, although the age range apparently conceded by the site when it was devised included those up to an age of 26, but it is clear that by accessing that site, knowing that you should not have been accessing it as you told B yourself, you were in a sense targeting younger girls, and that is something which is always to be regarded as very serious.  It is undoubtedly the case that B was someone who responded to the conversation in which you engaged with her, and it is quite evident from the statement she has provided and indeed the material that I have seen that she was perfectly willing to cooperate with whatever requests you made in the course of those conversations. 

There is here in no sense any deception of B either as to your wishes or indeed as to your own nature, because she was clearly aware that you were not a teenager.  The result of all that however was that you met on three occasions shortly before her sixteenth birthday and had intercourse with her, and following the last occasion on which you had intercourse it came to the attention of B’s parents that she was engaging in this activity.”

3.                  The images upon the computer were listed as being largely of level 1 on the COPINE scale, but some were at level 2, and one or two at level 3 to 4.  The sentence which the court imposed was two years’ imprisonment.  Since F served his sentence, there have been no further charges or criminal investigation.  Within the criminal proceedings, the court had access to various reports.  I have before me the report provided by the sexual behaviour unit which was completed and dated 5^th October 2010.  F in his statement calls into question the fairness of the sexual behaviour unit report in that he says the authors of the sexual behaviour unit report did not see any of the mitigating paperwork which was available to the court at the time sentence was imposed or any further paperwork thereafter.  F has been keen to correct as he puts it “impressions that may be misplaced”.  At paragraph 40 of his statement within these proceedings he sets out: 

“40: Before I refer to specific areas of the report, I would like to state that my nature is and always has been one of questioning accepted orthodoxies where I do not believe there is a rational or logical explanation.  I believe that it is this innate tendency to question theories where there seems to me to be a logical gap in the argument that results in my being deemed to be either in denial or minimising events.  I stress that I do not intend to be deliberately obtuse or obstructive when I do this, but it is in my nature to try to understand how and why someone may have come up with a particular theory concerning me and my thought processes, particularly when this theory does not correspond to my actual feelings, opinions and thoughts themselves.”

41:  The result of this is that I believe that comments, questions or statements I have made or may make in the future which do not fit comfortably with current theories have been used to assert that I may pose risks where there is no actual empirical evidence or logical argument to this effect other than by using the very theories which I am bringing into question.  I would also suggest that I see the world very much as being in shades of grey, whereas my experience over the last couple of years has shown me that sexual behaviour matters are often viewed by the authorities in strictly black and white terms, leading to misunderstandings and misinterpretations of my views and opinions.”

4.                  He further sets out at paragraphs 53 and 54 of the statement: 

“It seems from the report that the main areas of concern are described as being my minimisation of events and my lack of victim empathy.  There is a statement made in paragraph 62 relating to this which I maintain is entirely false.  The sentence in question reads: ‘Nor did it appear to occur to him he held responsibility for the events that took place.’  I do not accept this statement at all and I wish it to be recorded that I accepted responsibility on several occasions over the course of the three meetings with the report writers, as indeed I did during my police interview and in conversations with my probation officer.  I would like to take the opportunity to clearly and unequivocally reiterate what I said to all these authorities, namely that I do accept responsibility for what happened.  I was the adult and as such I knew better, but I did not prevent it from happening.  It is therefore my fault and I do not blame B for the events that occurred then or subsequently.”     

5.                  At paragraph 68 in his statement he sets out: 

“I believe that the major reason for the misunderstandings and misrepresentations of my position is that many people with whom I have discussed these matters representing various authorities involved in this case have made the same basic error in their starting position as far as trying to comprehend how the situation could have arisen is concerned.  This starting position would appear to be that I must have had sex with B because of her age and the whole sequence of events had somehow been planned.  The reality is that I had sex with B despite her age when the opportunity was presented to me.  This is such an important point that I feel it needs clarifying.  The assumption seems to be that throughout 20 years of adult sexual activity I have somehow wished that my adult sexual partners had actually been under 16, and that when I was with B I finally achieved my aims and would henceforth be trying to relive the moment with each and every 15-year-old I could find.  The truth is that age never came into my thoughts, when with adult sexual partners and when I was with B.  I was slightly uncomfortable with the situation and would have preferred her to have been older.  I believe that this is the single most fundamental point that needs to be understood before anyone is able to undertake a realistic assessment of my mental state both at the time and subsequently.  Failure to comprehend this position will, I contend, inevitably lead to confusion and conflict as the other party will be travelling down a different psychological route to the one which was applied in my head at the time.”

6.                  I am satisfied that the professionals involved with F, and I refer to both the sexual behaviour unit and Mr Hawthorn, are experienced and knowledgeable professionals and fully trained professionals in dealing with cases where sexual abuse is at the core of the matter.  The explanation whereby F says that he was slightly uncomfortable with the situation and would have preferred her to have been older ignores the fact that he sought out underage girls by engaging upon the internet with underage girls and in particular B, and with full knowledge of her age engaged in the activities which led to the offence being committed.  F wishes to emphasise that he had sex with B despite her age when the opportunity was presented to him. However it was he himself who brought about the opportunity.

7.                  It is this factor which underlines the risk that F presents in that her age did not prevent him having sex with her and that with knowledge of her age he proceeded to place himself in a position where he was able to and did have sexual intercourse with a girl under 16.  F states he is an intelligent and logical person who acted totally out of character and that he believes he has learned from his mistakes.  He articulates that indeed this is his position and he has learnt from his mistakes.  He maintains that it is inconceivable that he would be sexually attracted to his own daughter after she reaches her mid teens.  However, the professional opinion which has been provided to the court does not indicate the same view in that the professional opinion is that he remains a risk to post-pubescent girls. 

8.                  F confirmed all the matters set out in his statement and the matters to which I have referred in the course of his oral evidence.  He describes consciously rebelling and deciding to have one last fling before he settled.  Of course the last fling that he chose to have was with an underage girl.  He said that after the courses he has done there is now in his head a block and he is now aware of what his risk factors would be. 

9.                  Following his release from prison, F contacted the girl against whom he had offended.  When interviewed by Mr Hawthorn, CAFCASS officer, and in speaking about his offence and attitude towards his victim, Mr Hawthorn records that F made four points: 

(i)      He wanted to say he was sorry for the ‘hassle’ he had caused his victim and for what happened between her and her parents when he dropped her off at home after sexual intercourse (i.e. when she disclosed to her parents what had happened). 

(ii)          He did not know if she felt guilty about what had happened.  He told her not to feel guilty about telling her parents, he wanted to reassure her. 

(iii)        He wanted to tell her not worry about him seeking revenge or feeling bad if she saw how his life had been affected. 

(iv)        He wanted to say that she was ‘not to believe in the hype’ or that he was some sort of hideous dangerous person.

10.              Mr Hawthorn described in evidence how although the contact with his victim began with an apology, the majority of the content of what F indicated his purpose and intention was in contacting her displayed narcissism and self-interest which Mr Hawthorn said ran through both his discussions with F for the purposes of preparing his report, and also F’s oral evidence which he gave to the court.  F told me that he was trying to empathise with B.  He said that knowing what was going through his head, he was thinking what she may have gone through.  He said: “I would have thought she was concerned about my reaction to her, seeing as though I had gone to prison.  I wanted to reassure her.”

11.              Mr Hawthorn in evidence told me that his concern about this exchange between F and the girl remained and he did not feel any more reassured.  I found, as did Mr Hawthorn, that the content of the reasons that F indicated he sought to contact his victim were not to do with the welfare or interests of his victim but had a narcissistic and self-interested element.  Mr Hawthorn said that there is cognitive distortion in his understanding of the victim.  He knew that he should not get in touch with her even without any prohibition.  Mr Hawthorn both in his report and oral evidence questioned why F felt the need to describe in detail to Mr Hawthorn the acts which had taken place and to repeat the detail of the occurrence of the act when giving evidence to the court.  Mr Hawthorn queried his purpose in doing so.  In his report at paragraph 10 Mr Hawthorn set out: 

“F said that because he had had sex with a 15-year-old girl it did not mean he would have sex with his daughter.  He then went on to describe in detail the acts that had taken place.  I was unsure about his purpose in doing so.  I believe it was an attempt in part to convince me that the girl instigated the intercourse but I also had a sense that he enjoyed recounting the details.  I also believe that he was attempting to engage me in terms of my own sexuality in order to prove that any man would have taken the opportunity that he felt he had been faced with.  The sense of self-justification was concerning.  He had been explaining how things had occurred but he began his account at a point that was very advanced in the activity with little or no account of how he had come to be in that position in the first place.  It was as if the intercourse itself was an isolated incident over which he had little control, as opposed to an action which was a culmination of a series of choices for which he alone was responsible. 

He said he used the reasonable man argument, i.e. a reasonable man would have had sex in the circumstances in which F found himself.  His description of what he clearly saw as seduction involved significant cognitive distortion.  F said the girl had wanted sex.  I asked if it was relevant whether she wanted to have sex or not, that is even if the victim had wanted intercourse it was wrong.  F said none of this makes me man of the year and this has led to people saying it is not a problem.  F said that he needed to move on, get past it, it was a stupid mistake, he wanted to get on with his life.  He then asked explicitly, can you understand how a man might think she wanted to have sex with him?”

12.              Mr Hawthorn was clear that F was still minimising and justifying his actions in committing the offence.  I agree with Mr Hawthorn and find it extremely troubling to consider the content of the interview and discussion between F and Mr Hawthorn both in relation to the reasons why he contacted his victim and also and most particularly in relation to Mr Hawthorn’s account of F using the reasonable man argument, and an explicit question which was framed to ask whether or not Mr Hawthorn could understand how a man might think that the victim had wanted sex with him.  It is cognitive distortion.  The issue cannot be whether the victim wanted sex with him.  It is not a relevant matter. 

13.              F wanted to make it very clear that he was neither minimising nor justifying his actions but was trying to explain what he was thinking at the time rather than subsequently.  I do not accept that the content of the discussion with the CAFCASS officer referred only to past beliefs rather than present thoughts and intentions.  The conclusion of the SBU report, which I know F does not accept, at paragraph 66: 

“In our opinion no evidence has emerged in this assessment to suggest F poses a sexual risk to his daughter before she reaches puberty, however we consider that F’s sexual interest in post-pubescent girls, his minimisation of his offences and lack of victim empathy are of concern.  From the information available to us, as A approaches her teenage years, a risk of sexual harm from her father cannot be discounted.  While the incest taboo may serve to inhibit any sexual arousal, the extent and nature of F’s cognitive distortions relating to his offending may prove to be stronger than those inhibitions.  We would point out that F may also present a sexual risk to his daughter’s female peers when she reaches puberty.”

14.              The report is some four and a half years old so I looked very carefully at the written evidence before me and listened with care to F’s oral evidence.  It was apparent that although F was keen to articulate that he knew now his thought processes at the time were wrong, that at the time he did not think like that, he said his explanations were not justifications but to get across why it had happened.  However in his written and oral evidence and in the interview with Mr Hawthorn, there is a continuation I find of the cognitive distortion.  The questioning of what a normal male or any male would have done in the circumstances in which F found himself demonstrates this point.  However, it was F who brought about the situation in which he was placed and most normal males would not have engaged in the process at all. 

15.              Mr Hawthorn made the point that it was incremental behaviour which ended with sex with an underage girl.  The fact F wanted to talk about a reasonable person accepting the girl wanted sex ignored the fact that that was not the issue.  She was too young to consent to sex, of which F was fully aware.  He said he took it at the time that she wanted sex, he said he had never forced himself on anyone.  These things blur the sharpness of the actual events.  He says that in no way would he find A sexually provocative and that he would not do anything to deliberately harm his daughter.  He told Mr Hawthorn that in order to have sex with A, he would have to see it as no problem and get sexual gratification when it happened.  He said that there were no circumstances in which a daughter willingly engages in sex. 

16.              I have been extremely troubled by the evidence that F has given.  It seems to me that F continues to express significant cognitive distortion.  Mr Hawthorn states: 

“I am unable to give the court any reasonable assurance that A will not be at risk from her father especially in the longer term.  On the contrary, the content of the interview shows that F continues to employ cognitive distortions and self-justification which will continue to affect how he relates to others.  There is no reason to suppose that this would not include his daughter.  This will have an effect on both direct and indirect contact.  I recommend that F’s application is dismissed.”

17.              In an application of this nature, it is the welfare of the child with whom I am concerned which is my paramount concern and I have regard to those matters set out at Section 1(3) of the Children Act 1989.  It is the risk of harm to A which is the issue in this case, both emotional and indeed physical harm.  Of course I have to consider if harm would ensue to A if she continues to have no relationship with her father and whether the identified risk could be ameliorated by supervision.  Mr Hawthorn stated in his evidence that supervised contact until she is an adult would not do A any good.  I was concerned that F’s mindset would be damaging to A.  Mr Hawthorn queries ultimately where the relationship will be going, when it would be possible to stop supervision because the risk would increase as A advanced through adolescence if it was correct that F presented a risk.  Mr Hawthorn was firmly of the view that it was better for A to wait until she is older and able to make her own decisions. 

18.              I have considered F’s arguments that A should have supervised contact, supervised by the paternal family, and for A to make lasting decisions based on her experience of contact in the present time.  Mr Hawthorn pointed to a selfish and narcissistic mindset which would put A at risk and was unsure how far in the light of F’s plausibility the paternal family could be depended upon to keep A safe.  Indeed he pointed out that F’s parents, that is A’s grandparents, had wanted to take A to visit F in prison during the period of time that he was serving his prison sentence. 

19.              I am satisfied from all the evidence which I have read and heard that F does still present a risk to A which would not be ameliorated by the supervision of contact, and I am satisfied that in ascertaining the welfare of A that the application that F makes to this court must be dismissed. 

[Judgment ends]