Jersey Unreported Judgments

[2006]JRC103

royal court

(Samedi Division)

7^th July 2006 

 

Advocate D. Gilbert for the Plaintiff.

The Defendant and Convened Party in person.

judgment

bailiff:

Introduction

1.        This has been in a number of ways a difficult and troubling case.  It concerns a father's wish to have contact with his children against a background of allegations of inappropriate touching of his four year old daughter and of serious sexual misconduct against the daughter of his first marriage who is now aged 26.

2.        The domestic background may be shortly stated.  The father, who was a police officer, married in 1975.  The marriage lasted 22 years.  There were three children; two daughters G and R and a son T.  After the breakdown of the marriage in 1996 the father formed a relationship with the mother, also then a serving police officer. They did not marry, but had two children, a boy H, who was born in 1998, and a girl E, who was born in 2001.  This relationship in its turn broke down in 2003.  The father seeks contact with H and E (to whom we will refer collectively as "the children");  this is opposed by the mother on the ground of the sexual allegations referred to above.  Both parents have formed new relationships.  The allegations against the father are complicated by further allegations which have been made by the daughter, R, of the father's first marriage against his brother (to whom we shall refer as "the uncle").  R has alleged, and we will refer to the allegations in more detail below, that she was sexually assaulted and raped both by her father and by her uncle over a number of years.  The uncle was convened as a party to the proceedings. 

3.        Both parents and the uncle gave evidence as did a number of relatives and friends.  A number of experts also testified.  The mother called a consultant psychiatrist and psychotherapist, Dr Robin Royston ("Dr Royston"), who has been treating the daughter R since 2004.  The father and the uncle also called a consultant psychiatrist, Dr Janet Boakes ("Dr Boakes").  The Court also heard evidence from a psychologist, Mr Anthony Bainbridge, ("Mr Bainbridge") who was commissioned by the Children's Service at the request of the Court to carry out a psychological assessment of both parents and the uncle with a view to assessing the potential risks to the children posed by the father and the uncle.  Finally, the Court Welfare Officer, Mrs Jane Ferguson ("Mrs Ferguson") and a social worker, Mrs Mary Havens ("Mrs Havens"), at one time employed by the Children's Service, also gave evidence. 

The procedural history

4.        After the relationship of the parents ended in February 2003, contact between the father and the children continued by agreement.  There were difficulties, but it appears to have been fairly regular contact until August 2005.  On 9^th September 2005, the father applied to the Family Registrar for a parental responsibility order, a residence order and a contact order.  On 20^th October a parental responsibility order in favour of the father was made by consent, the application for a residence order was withdrawn and interim contact was ordered for short periods twice a week. 

5.        On 24^th October, the mother's legal advisers received a report from Dr Royston in which he stated that he believed that R had been sexually abused by the uncle and that the child E would be at risk from the father.  He would not recommend unsupervised access by the father to E.  On that basis, the mother applied on 25^th October for a prohibited steps order, prohibiting any contact between the children and the uncle, and any unsupervised contact between the children and their father.

6.        On 31^st October, the uncle applied to be joined as a party in relation to the mother's application.  On the same day, the Family Registrar referred to this Court both the application for contact and the application for a prohibited steps order.  The Registrar made a number of other orders, including an order that a Risk Assessment Report be prepared by the Children's Service and, importantly, an interim prohibited steps order limiting contact by the father to supervised contact for two hours once a week at Milli's Contact Centre.  That supervised contact began on 6^th November.  On 15^th November, the father appealed against that interim order.  Further directions were given by the Family Registrar on 23^rd November.  On 30^th December 2005, the Risk Assessment Report was completed by Mrs Havens and approved by Mrs Carole Rowe, a senior practitioner in the Children's Service and Mrs Havens' supervisor. 

7.        The Risk Assessment Report recommended the restoration of unsupervised access by the father to the children, but the preservation of the restriction in relation to the uncle until a psychiatric assessment could be prepared. 

8.        On 4^th January 2006, the father's appeal against the interim prohibited steps order was heard by the Bailiff in chambers and allowed on the basis of the Risk Assessment Report.  Unsupervised overnight contact was conferred and the Bailiff also gave various directions. 

9.        This order was reported the same day by letter from the mother's legal advisers to Dr Royston.  The letter reported that the mother intended to fight the application for unsupervised contact but that she had been advised that her position was quite weak "unless R can in some way provide more explicit detail of the allegations against both men, but in particular her father".

10.      By letter of 10^th January 2006, Dr Royston provided that explicit detail.  The allegation by R against the uncle became a history of sexual abuse by the uncle and the father including digital penetration of her vagina from the age of 3, a rape at the age of 7 or 8 and a forced sexual relationship until R reached the age of 16.  Allegations of serious physical violence were also made, including smashing R's head against a wall or furniture so that she lost consciousness.  We will examine this letter in more detail below. 

11.      A further application was then made by the mother on the basis of that letter for unsupervised contact between the children and the father to be suspended pending trial.  On 26^th January 2006 that application was dismissed.  On 27^th February the Bailiff gave further directions in relation to the trial which was fixed for Friday 12^th and Monday 15^th May in order to accommodate the commitments of the expert witnesses.  On 27^th March the Bailiff directed, on the application of the mother, that the parties should prepare, file and serve upon each other copies of the statements of any witnesses upon whom they sought to rely, including experts, by 5.00 p.m. on 2^nd May. 

12.      On 12^th April a lengthy report prepared by Mr Bainbridge became available to the parties.  Mr Bainbridge reached essentially the same conclusion as Dr Royston.  A further application was made to the Court by the mother on the basis of that report seeking the removal of the unsupervised contact with the children pending the hearing on 12^th May.  On 21^st April the Court, presided over by the Deputy Bailiff, refused that application.  The Deputy Bailiff also ordered the Children's Service to make every effort to secure the attendance in Court of Mrs Havens on 12^th May, the Children's Service having indicated that it was unaware of her whereabouts, and that it disagreed with the conclusions of her report.

13.      On 12^th May the Court heard the evidence of the mother, Dr Royston and Mr Bainbridge and adjourned over the weekend.  On 15^th May, the Court re-convened and was told by counsel for the mother that there had been an unexpected development.  The father's daughter R was in Court and an application was made for her to give evidence.  Counsel stated that R was in a fragile state and initially suggested that she should give evidence but not be cross-examined by her father or her uncle.  After further instructions, counsel conceded that she could not fairly oppose the notion that R be cross-examined on her evidence.  Counsel also conceded that her application did not comply with the order made on 27^th March by the Bailiff that the statement of any witness proposed to be called should be served on the opposing party by 2^nd May.  Neither the father, who was understandably emotionally affected by this dramatic turn of events, nor the uncle opposed the application.  The Court nonetheless deferred a decision until it had heard the evidence of Dr Boakes; that evidence was heard during the morning of 15^th May.  Having considered the matter over the luncheon adjournment, the Court announced that it would refuse the application to hear evidence from R and would give its reasons later. 

14.      Those reasons are three-fold.  First, the Bailiff had ordered all parties to serve upon each other the statements of any witness whom it was proposed to call.  The purpose of this direction was to prevent any party from being taken by surprise.  R had made no statement and had furthermore indicated through the mother's counsel that she did not intend to make any complaint to the police about the alleged rapes and sexual assaults.  It would in our judgment have been quite unfair to allow the father and the uncle to be ambushed in this way.  Without any time to prepare himself, the father would have been placed in the unenviable position of having to cross-examine a daughter whom he professes still to love dearly on the most serious allegations of sexual perversity.  Secondly, we were concerned, notwithstanding R's apparent willingness to do so, about the effect which the giving of evidence might have upon her mental state.  Counsel for the mother had said that R was in a "fragile state".  The latest report of Dr Royston, completed only two weeks before on 27^th April, stated -

"She is a very honest, straightforward young woman who has been severely traumatised throughout her childhood.  Indeed, in my 20 years' experience of treating adults who have suffered from childhood abuse, she is the most terrified and terrorized patient I have seen in an in-patient setting.  Her presentation is entirely consistent with the unfolding narrative and she remains at risk, as the treatment programme is still unfinished.  Any increase in threat to her from outside at this time could have disastrous consequences."

Counsel for the mother, in answering questions from the Court, stated that Dr Royston could not be categoric and state that there was no risk to R from giving evidence.  It was, however, important to her, according to Dr Royston, to protect the child E.  Dr Royston considered that it was a positive move for R, even if there might subsequently be a relapse.  He was supportive of what she was doing.  The Court was left with an uncomfortable feeling that R was being used as a means of bolstering the credibility of Dr Royston's evidence.  Thirdly, the Court had decided that, in relation to the evidence of the experts, it preferred the evidence of Dr Boakes.  We shall deal with that expert evidence more fully below, but in essence, Dr Boakes' view was that R's allegations were recovered memories arising from her medical condition supplemented by a suggestive form of therapy, and unsubstantiated by any evidence.  She was in the grip of a false memory syndrome.  It followed that the evidence of R would have been unlikely to help the Court to determine the issue before it. 

The allegations underpinning the dispute

15.      We turn to consider in more detail the allegations of R, as relayed by Dr Royston, and to the extent that they are recorded in documentary evidence.  R is an unhappy young woman.  She is the middle child of the father and his former wife, and is now aged 26.  The medical records show that she has been disturbed since her teenage years when she began cutting herself.  She appears to have had a difficult relationship with her mother and to have worshipped her father although also regarding him as aggressive.  We note without comment that the commencement of these acts of self-mutilation seems to have coincided with the breakdown of her parents' marriage and their separation in 1996.  R left school in 1998 and completed a degree course at the University of Kent.  During this time she appears to have continued to be troubled and to have seen one or more counsellors.  In July 2002, she returned to Jersey and her GP referred her to Mr Berry, a clinical psychologist practising in the Island.  She was described by her GP as suffering from anxiety and as frequently cutting her forearm.  In January 2003, Mr Berry reported that her anxiety "seems predominantly to be about her self image and body image" leading to "social phobia".  A strategy had been discussed with her but subsequently R had told Mr Berry that she did not want to continue. 

16.      In June 2003 she was referred by her GP to Dr Sharkey, consultant psychiatrist at the General Hospital.  She was said by her GP to have low self-esteem and to be cutting herself to an obsessive degree, and talking about suicide.  She was in fact seen by Dr MacSweeney, an SHO in psychiatry, who reported that she was suffering from a depressive disorder of mild severity.  She was then referred to a psychologist, Miss Tina Baker, but that reference was thwarted as a result of the psychologist's illness.  In December 2003, her GP wrote again to Dr Sharkey.  He described her behaviour and stated "The underlying problem is related to sexual abuse by a relation during her childhood ......".  On 15^th December 2003, Dr Sharkey reported that "..... she was quite unhappy as a child and this unhappiness was longstanding.  At the age of 7 or 8, however, she recalls being subjected to some inappropriate sexual behaviour from her father's twin brother.  On direct questioning, her recollections are hazy but she does remember him touching her inappropriately.  She was distressed talking about this and I did not go into significant detail but I gained the impression that there was neither violence nor any penetration.  While the issues relate to her concerns as to the extent of unrecovered memory she may have, she is fearful that much worse things happened but her mind has managed to filter those out."

17.      Later in December 2003, she was referred to Ms Tracy Wade, consultant clinical psychologist, who reported in March 2004 that "the self-harming seems to serve the purpose of re-enacting the abuse she experienced from Mum/Dad/uncle/brother, as if she deserves to be punished to have to hurt herself to remind her of how bad she really is".  In May 2004 R was referred by her GP to Dr Blackwood, consultant psychiatrist at the General Hospital.  Her GP reported that R's relationship with Tracy Wade was going well, but that R had recently been contacting the surgery saying that she was having visions of herself hanging.  The GP continued "The main problem event that all this seems to stem from is a period of sexual abuse by a relation during her childhood.  Obviously this is extremely upsetting for her and she feels it pervades her entire life." On 14th June 2004 Dr Blackwood reported -

"She spoke about the probable sexual incident with a relative when she was a child.  Surprisingly she did so with very little emotion, although when speaking of her parents she was very upset and distraught.  Their relationship had broken down when she was aged about 16.  However she never had a good relationship with her mother, whom she described as irritable and difficult.  Her father was someone she looked up to but no longer did."

Dr Blackwood also noted that R felt suicidal and had never had a sexual relationship. 

18.      In August 2004 R's GP wrote to Dr Cox, consultant psychiatrist, for possible psychotherapy as R was "finding the interview techniques of other psychiatrists difficult to cope with." On 22^nd September 2004 the GP wrote to Dr Blackwood explaining that R "did not feel comfortable attending the psychiatric department at the hospital.  She was already seeing Tracy Wade for psychological support and wondered whether Dr Cox might provide a different method of treatment ..... she is a complicated girl and difficult to manage."

19.      On 10^th September 2004 Dr Cox wrote to Dr Royston seeking admission for R to the Priory Ticehurst House in Sussex.  Dr Cox adumbrated the medical history and stated -

"There was an episode of CSA (childhood sexual abuse) at 7 or 8 years with inappropriate touching by her father's twin brother. ..... I am hoping that you and your team at Ticehurst can give her a programme which will assist in enabling her to manage her emotions better and perhaps also help her to formulate a more circumscribed response to the CSA rather than letting herself become defined by it.  Its context of poor relationships with both parents is no doubt relevant.  She seems well motivated to come to Ticehurst and feels it is what she needs to break her present pattern of negative thinking.  In my view she would use the time there sensibly.  I and also her psychologist would continue seeing her following discharge."

That was the state of play when R went to Ticehurst in September 2004.

20.      R was in fact admitted on 13^th September 2004.  She was discharged on 24^th October 2004 and re-admitted on 5^th November.  She was again discharged on 16^th November and re-admitted on 10^th December.  She was again discharged on 8^th April 2005 but re-admitted on 25^th May.  She has been an in-patient since then.  According to Dr Royston, the first two admissions concerned abuse by the uncle.  Very little detail has been provided in relation to this alleged abuse.  Dr Royston's first letter of 24^th October 2005 stated only that -

"On admission, she wanted to talk about and resolve issues of having been sexually abused by her uncle."

Later in that letter, he stated -

"I have no doubt that her uncle's sexual abuse of her is genuine".

In Dr Royston's second letter of 10^th January 2006, there was a reference to a specific incident amongst several; he stated -

"There were occasions, for example in her early teens, when both father and uncle were involved at the same time. She described a time in her uncle's garage and also in a house on the coast in St Brelade, when both men had sexual intercourse with her and were both present at the same time.  Not surprisingly, this has profoundly added to her sense of worthlessness that she was used as a sexual object and treated with utter contempt.  She was also threatened, on several occasions, with being killed if she ever said anything".

21.      In relation to the father, it appears that R's allegations emerged in December 2004.  They are encapsulated in paragraph 2.7.3 of Dr Royston's report of 28^th April 2006. 

"[R] experienced the typical grooming seen in sexual abuse of children by her father from at least the age of three years.  He was affectionate, but acted in a sexually inappropriate manner, including washing her genitalia in the manner described by [E], in the bath, digital penetration and sexual arousal.  The degree of abuse increased in a graded manner so that she was never truly aware, in the clear manner of an adult perception, that it was wrong.  He would sexually arouse her, but stopped short of full sexual intercourse until the age of seven or eight years.  Following a row between her parents, her father lost his temper and after her mother stormed out, he raped [R] for the first time.  He continued to force her to have a sexual relationship with him from then on, until the age of sixteen years.  There was also considerable physical violence, including smashing her head against the wall or furniture and throttling her, so that she lost consciousness.  When she came to he would often tell her she had had a nightmare, adding to her confusion."

22.      These are the allegations which have led the mother, unsurprisingly, to oppose the father's application for contact with his children H and E.  It is important at the outset to underline the fact that none of these allegations by R has been corroborated by any independent evidence.  The allegations have been believed by Dr Royston, which is of course material, but that does not constitute corroborative evidence. 

The expert evidence

 

(1)        Dr Royston

23.      Dr Royston is an experienced psychiatrist and psychotherapist.  He qualified at the Middlesex Medical School in 1974 and became a member of the Royal College of Psychiatrists in 1985.  He completed a specialist psychotherapy training in 1987.  He was appointed Consultant Psychotherapist to Canterbury and Thanet Health Authority in 1990 and, following the creation of the East Kent Health Trust, he was tasked with restructuring all psychological treatment services within the Trust. He was awarded the Medical Diploma in Clinical Hypnosis by the London College of Clinical Hypnosis in 2003.  He has been in private practice at The Priory, Ticehurst House Hospital from 1987.  He is an Honorary Research Fellow at the University of Kent.

24.      Dr Royston was reticent about the treatment being given to R at Ticehurst.  He was not prepared to allow Dr Boakes access either to R or to her medical records on grounds of patient confidentiality.  The Court has only some generalised comments in the report of Dr Boakes as to the likely treatment received by R, but those comments have not been rebutted by Dr Royston.  It is said that Dr Royston is a Jungian analyst specialising in trauma-based problems stemming from childhood.  He is said to be the author of a book "Out of the Dark" written jointly with a former patient, Linda Caine, which describes her eventual recovery of a memory of being sexually abused by her mother's lover when she was five years old.  Dr Boakes has surmised -

[R's] treatment: there is little I can say about the treatment philosophy as I have no hard information.  The best that can be said is that after more than a year in hospital [R] does not appear to be getting better.  I think it is fair to surmise that she will have received extensive psychotherapy/psychological treatment of various kinds at Ticehurst, that may have included group therapy as well as individual therapy.  I surmise that this treatment will be based upon a belief in the validity and reliability of 'repressed' and 'recovered' memories, since Dr Royston has published a clinical account of such treatment in which his adherence to the theory of repression, amnesia and memory recovery is apparent.  [R] has also wondered about having 'repressed memories' and it is probable that together she and her therapist have found 'confirmation' for their beliefs in the unfolding narrative'

[R] may also have received a 'cocktail' of powerful neuroleptic drugs which can have the effect of muddling the mind and making it difficult to distinguish fact and fantasy.  I have seen young women who have been treated with therapy and large doses of drugs who only began to sort out the real from the imagined when they stopped all medication and left therapy".

25.      Dr Royston was given the opportunity to comment on Dr Boakes' report and did so briefly, but no reference to the above passage is made.  In his evidence viva voce, Dr Royston said that his specialism was a trauma-based therapy.  He had dealt with ten cases of recovered memory including some which he had known to be completely false.  He had seen the full range of the problem.  His diagnosis of R was that she was suffering from Post Traumatic Stress Disorder (PTSD).  He said that her condition was quite close to Borderline Personality Disorder (BPD) which was associated with childhood sexual abuse.  He disagreed with Dr Boakes that R's symptoms were indicative of BPD but he conceded that it was quite close in any event.  It was much more likely, in his view, that R had suffered from childhood abuse than that she was being manipulative.  Dr Royston stated that R had suffered for years (since the age of 14) from flashbacks and nightmares which were indicative of PTSD.  He agreed that whilst self-harm was a symptom of PTSD it was not necessarily an indication of childhood sexual abuse.

26.      Dr Royston contended that memories could be forced out.  He agreed that this was a contentious area and that recovered memory could be either true or false.  He said that he had come to know R well, and that he was convinced that she was not making up the allegations.  She did not try to split the staff or show other signs of manipulative behaviour.  Dr Royston said that he had been told of a telephone call by the mother to R in August 2005 when R had been told of the alleged inappropriate touching of the child E by the father whilst washing her in the bath.  R had been very disturbed by this 'phone call. 

27.      Dr Royston conceded that his second letter of 10^th January 2006 had been much more specific and detailed as to R's allegations than his first letter of 24^th October 2005.  The reason for this was that he had been trying to negotiate a line between protecting R and fulfilling his responsibility to prevent further child abuse.  In the light of the Court's decision of 4^th January 2006 he had felt obliged to say more.  In cross-examination by the father, Dr Royston was asked why R had not been medically examined.  Dr Royston thought that was a callous question; R was fearful of a vaginal examination and if she had no hymen it would prove nothing.  It ultimately boiled down to a question of whether Dr Royston believed R's allegations and he did.  In cross-examination by the uncle, Dr Royston denied using truth drugs on R. 

The expert evidence

 

(2)  Mr Bainbridge

28.      Mr Bainbridge was commissioned by the Children's Service at the request of the Court to carry out "a full and comprehensive psychological assessment upon [the parents and the uncle] in relation to the potential risks posed by [the father and the uncle] in relation to [the children] ...." . Strictly the commission was entrusted to Independent Clinical Initiative Services (ICIS) but the work was done by Mr Bainbridge assisted by a specialist social worker, Barbara McKay.  We will refer to them collectively as ICIS.  We have heard no evidence as to their professional qualifications although self-evidently, Mr Bainbridge is a qualified psychologist. 

29.      ICIS interviewed the father, the mother, and the uncle as well as a number of other relatives, although not the children's paternal grandfather.  ICIS worked with Mrs Ferguson, Dr Royston and Mrs Dodds, the team manager at the Children's Service but not with Dr Boakes nor Mrs Havens. 

30.      The ICIS report, which runs to over 100 pages, contains detailed accounts of interviews conducted with each member of the extended family mentioned above.  While there are naturally elements of disagreement or dissonance in the recollections of some witnesses as to specific events, these accounts present, broadly speaking, a consistent narrative as to the family history while R and her brother and sister,  T and G, were growing up. There is little or nothing in those accounts which contains evidence of sexual depravity by either the father or the uncle. 

31.      The ICIS report nevertheless concludes that the father presents risks that relate to a physically and sexually abusive nature, and that the uncle presents similar risks.  Both the father and the uncle were required or requested (it is not clear which) to undergo psychometric tests.  We shall have more to say about these tests in our conclusions below but it suffices at this stage to observe that the results of the tests were clearly persuasive for the authors of the ICIS report.  It is unfortunate therefore that Mr Bainbridge brought with him no written materials of the kind which those tested were requested to complete nor any information as to how specific questions had been answered.  Mr Bainbridge was cross-examined on the nature of some of the questions posed and agreed that the uncle and the father had found some of them offensive.  Mr Bainbridge agreed that he had asked the uncle to re-live his emotions upon the death of his own mother but said that this might have been significant in their findings.  He agreed that he had not interviewed the uncle's own father (R's grandfather) notwithstanding that the grandparents were living in a semi-detached house, the other part of which was occupied by the father and his young family at the material time.  Mr Bainbridge explained that they had thought it right to show restraint because the grandfather was suffering from cancer.  Mr Bainbridge denied behaving in an intimidatory way during the interview of the uncle, although he agreed that he had told the uncle that in the worst case scenario, the uncle would be likely to lose his job and that there might be implications for his care of his own 15 year old son, L.  Mr Bainbridge agreed that he had told the uncle at an early stage that if allegations of this kind had been made in the United Kingdom the uncle would have been suspended and his son taken into care.

32.      In cross-examination by the father as to why conclusions had been reached that he showed tendencies of voyeurism, Mr Bainbridge replied that his former wife had stated that he leered at her when she undressed for bed.  Mr Bainbridge agreed that the father had said, in relation to some of the psychometric tests, that the hypothetical scenarios had never come into his head.  He agreed that the father had denied ever watching pornographic films. 

33.      Mr Bainbridge agreed that he had spent some time discussing with Dr Royston his assessment of R's allegations.  He had not spoken to Dr Boakes because she had made it clear that her opinion would not change without further evidence.  Mr Bainbridge had initially been doubtful of R's story, but had subsequently been persuaded of the truth of the allegations.  He had not spoken to R but had spent between one and two hours with Dr Royston. 

34.      Mr Bainbridge's conclusion was that both the father and the uncle presented a definite risk to the children.  In relation to the father, the result of the Inter-Personal Reactivity Index was that he found it difficult to accept other people's viewpoints when they did not coincide with his own.  It showed "a worrying inability to have empathic concern for others."  The fantasy component of these tests showed that the father had an acute inability to view the world through the eyes of children; it followed that he would "struggle greatly in understanding how adults' behaviour can impact upon children". The Personal Distress component of the test showed that he would when possible resist sharing the negative emotions of others.  He had an ability to minimise "concerns about his potential to sexually harm or his use of violence [sic] around children". The ICIS report concluded in relation to the Inter-Personal Reactivity Index -

"Clearly the findings of these results give worrying evidence in [sic] [the father's] ability to pose a definite risk to his children."

35.      A number of other tests and scales, the Able and Bekonan Sexual Interest Card Sort and the Wilson Sex Fantasy Questionnaire led to the same conclusion.  The father presented "risks that would fall within a physical and sexually abusive nature". The information available to the authors was "overwhelming to suggest that [R and the children] have suffered harm in the presence of [the father]". The psychometric measures indicated that the father enjoyed some degree of deviant sexual interest that "would support the allegations made by [E] and [R]". It was "apparent" that the father required a robust therapeutic package of support in dealing with his difficulties.

36.      It is unnecessary to recount in detail the analysis in relation to the uncle and the psychometric tests.  Suffice it to say that the authors of the ICIS report conclude that the uncle posed a similar risk to the children.  It was also suggested that the Children's Service should inform the uncle's 15 year old son of the allegations made by R in order that he could protect himself if necessary.  Again, the uncle required a robust therapeutic package of courses and interventions over a three to nine month period. 

The expert evidence

 

(3)  Dr Boakes

37.      Dr Boakes submitted two reports and gave oral evidence.  She obtained her medical qualification in 1964 and obtained her qualification in psychiatry in 1977, specialising in psychotherapy.  She was elected a Fellow of the Royal College of Psychiatrists in 1998.  She qualified as a Group Analyst in 1983.  She was Consultant Psychologist and Psychotherapist at the South West London and St George's Mental Health NHS Trust and Honorary Senior Lecturer at St George's Hospital Medical School from 1983 until her retirement from NHS practice in July 2005.  Between 1983 and 1990 she held a joint appointment between SW London and St George's and Peper Harow Therapeutic Community for Adolescents.  Between 1999 and 2005 she was Clinical Director for Psychological Therapies and responsible for the governance of psychotherapy within the Trust. She has 20 years' experience as a psychiatrist/psychotherapist of dealing with adults, children, teenagers and families.  In the context of the Royal College of Psychiatry she has served on various committees and was the Faculty Public Education Officer and a College Examiner.  She was chairman of the Institute of Group Analysts between 1989 and 1994.  She also held various posts in the UK Council for Psychotherapy including the chairmanship of the Professional Conduct Committee between 2000 and 2004. 

38.      In 1992, Dr Boakes became concerned about the emerging problem of false beliefs and allegations in the realm of historic accounts of sexual abuse, and the contribution made by psychiatry/psychotherapy and counselling to such false allegations.  In 1995 she was a member of the Royal College of Psychiatrists' Working Party on "reported recovered memories of child sexual abuse" which led to the publication of a consensus document entitled "Recommendations for good practice and implications for training, continuing professional development and research". She was one of four co-authors of a review article entitled "Recovered memories of childhood sexual abuse; implications for clinical practice" based upon the conclusions of the Working Party and published in the British Journal of Psychiatry.

39.      Dr Boakes was instructed by the uncle on the recommendation of the British False Memory Society of which she is, however, not a member.  She told the Court that this was the first occasion upon which she had been instructed directly and not through the intermediary of a solicitor.  She had accordingly been careful not to involve herself too closely with the two brothers.  Her written instructions came from the uncle and she had spoken to the father for the first time only shortly before the hearing. 

40.      Dr Boakes was not permitted to have contact with R or her medical notes.  Dr Royston determined (entirely correctly) that in the absence of patient consent it was not open to him to allow such access.  The evidence of Dr Boakes was therefore based upon her instructions from the uncle and the reports of Dr Royston, although subsequently she came into possession of some written medical notes of R's treatment in Jersey.

41.      Dr Boakes' first report, and her oral evidence, explained the nature of memory as being plastic, constructive and reconstructive.  It is far from being analogous to a recording.  Natural attrition of memory is such that no reliance can be placed upon long term memories.  While some may be clear and factual, others will vary from distorted to the completely imagined.  There is no means of distinguishing between what is true and what is false other than independent corroboration.  All experts acknowledge, she said, that the immaturity of the developing brain prevented very early memories from being stored for long-term recall.  Opinions differed as to when the earliest memories became available, but the average is generally set at three and a half years.  Most normal adults remember nothing before six years and it is not unusual for there to be few early memories preceding ten years.  There appears to be a psychological shift at about ten years and from eleven years onward, childhood memory is essentially the same as that of an adult.  Most early memories turn out to be stories that have been told.  Source monitoring is the name given to the ability accurately to remember the source of an experience - was it a dream, an intention, an actual experience, a story told by others, or a mixture of some or all of these?  Source monitoring failures occur when people are exposed to misleading post-event suggestion.  Such failures can result in the creation of entirely false memories.  Research has shown that false autobiographical memories can be successfully induced by dream interpretation, the use of guided imagery, and hypnosis. 

42.      Dr Boakes distinguished between suppression of memory and repression of memory.  Suppression of memory is a normal mechanism to avoid thinking about unpleasant events.  It can be described as "putting to the back of one's mind", so that if not thought about an event ceases to have an effect.  It may be brought back by a chance event or an inquiry and it is never entirely forgotten.  By contrast, repressed memory is an assumed psychological mechanism whereby all recollections of a traumatic event can be blocked from awareness but the memory lingers on in the unconscious mind and produces symptoms that are obscure to the sufferer but can be attributed to a "buried memory".  Those who accept this theory believe that a normal response to atrocities is to block them out in order to prevent the mind of a child from being overwhelmed.  Dr Boakes suggested that such a theory ran counter to common sense; if any horrifying experience were regularly forgotten, there would be no mechanism for avoiding a repetition.  In her opinion, true victims of sexual abuse did not forget about what had happened, although they might not think about it for long periods.  In oral evidence, Dr Boakes said that true memory did not return in dribs and drabs. 

43.      Dr Boakes described a number of techniques that have been criticized for their propensity to create entirely false memories that are nevertheless held with conviction by the patient and accepted as truth by the therapist. Dream interpretation, hypnosis, truth drugs, guided imagery, interpretation of flashbacks, encouraging free recall on paper, giving popular self-help books promulgating unreliable information about memory and abuse, had all been responsible for inducing false memories. Group therapy and involvement in a 'survivor' group were potent forces for suggestion.  It was well known that patients in hospital picked up symptoms and belief from each other.  False memories tended to grow over time, becoming even more extreme.  Often they extended back into very early childhood and fell into the period when memory is impossible.  Others extended forward to late adolescence or early adult life, and such late memories had a high probability of being false.  They might grow to draw in other victims or multiple perpetrators.

44.      In Dr Boakes' view the theory that trauma was followed by amnesia (inability to remember) had been thoroughly undermined by research which tended to the diametrically opposing conclusion - that sufferers remembered horrific events only too well.  The majority academic opinion, based upon well documented research, was that repression of memory and amnesia for traumatic or sexual abuse did not occur as a natural consequence.  She accepted however that a large minority of clinicians still accepted these ideas.  As to the pathogenesis of sexual abuse there was no connection between childhood sexual abuse and late adult psychopathology.  There was no justification for assuming that symptoms such as anxiety, depression or self-harm were indicative of 'blocked' sexual abuse.  These symptoms were common and occurred in the non-abused as well as in the abused.  On post-traumatic stress disorder (PTSD) Dr Boakes stated that this was a psychological consequence of life threatening or terrifying trauma and was recognised by a constellation of symptoms often including difficulty in recalling details of the trauma itself.  The onset of PTSD was, however, to be found within days or weeks of the event, but not years later.

45.      Finally, Dr Boakes stated that extended periods of 're-living' a past trauma have the hallmark of hysterical phenomena (nowadays referred to as dissociated states).  They are usually seen during psychological treatment and are iatrogenic (i.e. caused by the doctor).  Hysterical (dissociative) phenomena increase with attention and tend to attenuate if ignored.  The potential for the vicious cycle to develop is increased when such symptoms are given credence. More attention leads to worsening symptoms, and so on. A credulous professional and a complainant prone to fantasy can be a lethal combination.

46.      Dr Boakes' opinion was that R's allegations bore all the classic hallmarks of false memory syndrome.  The original suggestion that she could remember her uncle's bathroom and a weight on top of her had developed in time to a detailed recollection of sexual abuse not only by her uncle but by her father as well over a period of many years.  Dr Boakes considered that the un-named counsellors who had seen her between March 2002 and October 2003 had probably exacerbated the situation and lent credence to her hesitant fears of sexual abuse.  The counsellor(s)' notes suggest that a hypnotherapist may have first suggested to R the possibility of sexual abuse.  Dr Boakes was critical of Dr Royston's acceptance of R's allegations without any corroborative evidence.  Dr Royston's reports were essentially statements that R had made certain allegations and that he believed her.  Yet the memory of extensive sexual abuse by the uncle, let alone grooming by the father from the age of 3, rape at the age of 7 or 8 and subsequent continuing sexual indignities only emerged after treatment at Ticehurst. In Dr Boakes' opinion, all R's allegations were false memories arising from her medical condition supplemented by a suggestive form of therapy.  In her view R had not been sexually abused by either the father or the uncle.

Conclusions upon the expert evidence

47.      We have already stated that we prefer the evidence of Dr Boakes, and we will state our reasons below.  We found the evidence of Dr Royston entirely unpersuasive.  While we do not feel competent to adjudicate upon differences in the medical profession as to the existence or otherwise of repressed memory, our inclination is to doubt the reliability of such a theory for all the reasons addressed by Dr Boakes in her reports and oral evidence.  What seems to us axiomatic however is that allegations of sexual offences by disturbed young women need critical and objective analysis.  Dr Royston appears to have developed a close bond with R and to have accepted her statements without any attempt to verify them by reference to external or objective evidence. We realise that Dr Royston perhaps felt some inhibition in describing the treatment which has been given to R during her time at Ticehurst.  The Court was given no indication however as to the nature of that treatment, and no means by which to assess the extent to which the treatment fell within the parameters so roundly criticised by Dr Boakes.  We think it is likely that R's treatment has indeed been characterised by some at least of the methods which, in Dr Boakes' view, are prone to lead to the development of false memories.

48.      For a number of other reasons we found Dr Royston's evidence to be unsatisfactory.  First, it seemed to us surprising that he was unwilling to lay all his cards on the table at the outset.  In his letter or report of 24^th October 2005, he stated that, on R's admission to Ticehurst, she had wanted to resolve issues of having been sexually abused by the uncle.  There was no express mention of any allegations involving the father although he knew (1) that the report was to be used in the context of the father's application for contact with the children and (2) that R had made allegations of sexual grooming and assault, rape and continuing sexual abuse over a period of 8 years against her father.  It was only when the Court made an interim order for unsupervised contact that all these allegations were disclosed.  Secondly, it seemed to us that Dr Royston's second report was unduly defensive stating that "It will also no doubt be suggested that I have encouraged her to confabulate, for reasons that are less certain, but related to therapeutic malpractice". Later he stated "It may also be suggested that I have encouraged a long admission for financial reasons .... This argument does not stand up to scrutiny".  Later still he stated "I am also aware of the possible damage to my professional reputation, if the Court does not accept my evidence." We are not aware that Dr Royston's good faith has at any time been impugned, even if his treatment theories have been criticised.  Thirdly, we found Dr Royston's evidence prone to undue exaggerations.  In his second report, he stated that R still loved her father but "[b]y accepting this report she realises she will lose the possibility of reconciliation with her father forever".  He continues "Not only can she never return to Jersey, as noted in my previous report, with the consequence of saying goodbye to her family, friends and especially [H] and [E], she now has to build a new life knowing she will never have the support of her father who has been the most significant other for her".  If these things have been stated to R, it seems to us unfortunate and potentially damaging to her interests.  We can see no good reason why allowing Dr Royston to make this statement should mean either that she can never return to Jersey or that she is cutting herself off irretrievably from her family and friends.  Fourthly, it seems to have been conceded that Dr Royston deliberately misled Mrs Havens at the time of the preparation of her report in December 2005.  Mrs Havens' evidence was that she had had a telephone conversation with Dr Royston on 15^th December 2005 during which he had stated that the concern was with the uncle and that there were no allegations by R against her father and that the father presented no risk to the children.  This evidence was not challenged by counsel for the mother.  We cannot understand why this misleading information should have been given to Mrs Havens who was, to his knowledge, providing a risk assessment report for the Court in relation to the suitability of the father to have contact with the children.

49.      Dr Royston accepted that his belief in the veracity of R's allegations was unsupported by any corroborative evidence.  In our judgment his belief was misconceived.  To the extent that any of his evidence conflicts with the evidence of Dr Boakes we reject it.

50.      We turn to the evidence of Mr Bainbridge.  He and his co-author saw no reason to disbelieve R's allegations, which means, in effect, that they accept Dr Royston's analysis of the situation.  As we have rejected Dr Royston's analysis or belief in the veracity of R, it follows that one of the pillars of the ICIS report disappears.  We think that the report and the evidence of Mr Bainbridge are however more seriously flawed.

51.      We have reached the conclusion, and we have not reached it lightly, that the report is biased and lacking in the objectivity which is required of expert evidence, particularly in a matter with such potentially grave human consequences.  In our view, the authors did not approach their task with an open mind or, if they did, their investigation was very soon coloured by a conviction that R's allegations, as relayed by Dr Royston, were credible.  We reach that conclusion for the following reasons.  First, we find it extraordinary that the authors failed to discuss their assessment or their conclusions with Dr Boakes.  In a case characterised by fundamental disagreement between two consultant psychiatrists, they saw fit to accept, apparently without any critical appraisal, the evidence of one without talking to the other.  Secondly, we find it equally extraordinary that the authors failed to discuss their assessment or their conclusions with Mrs Havens, notwithstanding the view of Mr Bainbridge that her report of 30^th December 2005 was a very bad report.  One might have thought that if that was the authors' tentative conclusion they would have taken the trouble to speak to her so as to satisfy themselves that her report was indeed defective.  Thirdly, we were greatly troubled by Mr Bainbridge's concession that he had told the uncle that if the report concluded against him there might well be implications for his care of his 15 year old son and his job.  Such an indication does not seem to us to be in any way appropriate in the context of any inquiry which had only just begun.  Nor was it appropriate to tell the uncle that if these allegations had been made in the United Kingdom he would have been suspended and his son taken into care.  These comments were not only inappropriate and unfair in creating even greater pressure upon the uncle, but are also capable of giving the impression that such a conclusion was already in the minds of the authors.  Fourthly, the authors seem not to have troubled to verify allegations made against the father before including them in the report and treating them as facts. As an example, the suggestion by the father's former wife that on one occasion he rammed his penis down her throat during the course of marital intercourse was not put to the father, but used as evidence to justify the conclusion that the father enjoys "some degree of deviant sexual interest".  Fifthly, evidence was incorrectly stated to justify a conclusion adverse to the father.  An allegation by T, the son from the father's first marriage, that the father had once lifted R's sister G off her feet by her throat was accepted as a fact so as to justify the conclusion that the father had a physically abusive nature.  In fact G had denied that any such incident took place; the authors incorrectly stated that G had said she could not remember and had "blocked it out".

52.      The authors of the ICIS report relied heavily, it would appear, on the result of psychometric tests undertaken by the father and the uncle.  As we have stated above, Mr Bainbridge did not bring any of these tests, or the forms completed by the father and the uncle, to Jersey.  It is difficult therefore to reach any objective conclusion upon the usefulness of the tests.  We are left with the bare statements of Mr Bainbridge as to the conclusions which he drew from the answers given.  According to the evidence of Dr Boakes, psychological tests are, on the authorities, used for relatively broad purposes during therapy rather than simply sex offending alone.  She acknowledged that they could be useful but that they were capable of misleading tribunals of fact. She cited one authority (Dr Salter) as stating -

"Although it is not appropriate to debate the detail of the use of such psychological tests and measures in the assessment of sex offenders here, it is important to stress that such tests can often have a spurious air of objectivity which they may not deserve."

Dr Boakes refers to one of the tests devised by Abel and Becker in 1985 entitled Sexual Interest Card Sort.  This is one of the tests used by Mr Bainbridge.  Dr Boakes states -

"This evaluates sexual interest in a number of types of deviant and unusual sexual thoughts.  A typical item from the measure is: "I'm lying back naked on the bed with my daughter sitting on top of me.  I'm stroking her naked body with my hands and pushing my fingers into her cunt".

The interviewee is presumably asked to give a reaction to being involved in this scenario.  One can well understand that any normal individual would react (as both the father and the uncle did react) with revulsion and disgust to this type of hypothetical situation.  On the face of it we found it difficult to see the value of such inquiries.

53.      However, as we have stated, we do not feel able, in the absence of any evidence as to the precise nature of the tests or the answers given by the father and the uncle, to reach any conclusion on their usefulness or relevance to the issue which we have to determine.  In summary, we reject the conclusions reached by Mr Bainbridge.

54.      We turn to the evidence of Dr Boakes.  We have already described it in some detail and indicated that we preferred it to the evidence of Dr Royston and Mr Bainbridge.  We found Dr Boakes to be an entirely independent and highly persuasive witness.  She maintained an appropriate professional distance from those instructing her and subjected all the evidence placed before her to critical objective analysis.  She gave her evidence with care, always pointing out where there was room for doubt or proper professional disagreement. She was not shaken in her conclusions by cross-examination in any way.  In our judgment she was clear, concise and authoritative. Indeed, she was an impressive witness.  We accept her evidence in every material respect.

General conclusions

55.      It will be clear from the above that the Court does not accept that the allegations of R which lie at the root of this troubled case have any foundation in fact.  Before applying that conclusion to the issue which we have to determine, it is necessary to touch briefly upon the remaining evidence of the professionals.  We regret to record that we cannot entirely acquit either the Children's Service or the Court Welfare Officer of the charge of partiality.  In so saying, we do not in any way imply that there has been any bad faith.  We think however that the Children's Service in the person of Mrs Dodds and the Court Welfare Officer, Mrs Ferguson, formed an unshakeable conviction, certainly after the report of Dr Royston of 6^th January 2006 had been received, that the father and the uncle had been guilty of gross sexual misconduct.  We suspect that this coloured the instructions given to Mr Bainbridge.  As a result the risk assessment report of Mrs Havens was completely discounted and difficulties were placed in the way of the father who wished her to give oral evidence.  We record that in our judgment the risk assessment report was a model of good sense and objectivity and that Mrs Havens' evidence was equally persuasive.  We understand the duty of those concerned in advising the Court to take very seriously any allegation of child abuse.  At the same time it is the duty of such Court Officers to maintain their objectivity so that all the relevant evidence can be appraised before a conclusion is reached.  Where there is a conflict of evidence between experts it behoves them to take particular care before reaching a conclusion adverse to any individual.

56.      In this case it seems to us that there was an almost Kafkaesque progression of damning conclusions as to the characters of the father and the uncle all of which stemmed in essence from the single fact that Dr Royston believed the complaints of a disturbed young woman without seeking any corroboration of those complaints.  The ICIS report stated that its authors could "see no reason to disbelieve what [R] has said based on both her allegations "although neither of them had actually spoken to R.  The Court Welfare Officer stated that "[a] very thorough independent assessment has been carried out by ICIS and I cannot ignore it's [sic] conclusions". That led the Court Welfare Officer to the conclusion that, although H "very much enjoys the contact he has with his father" the contact should be reduced "due to the perceived risks that his father and uncle pose".  She acknowledged that such a change "would impact on H significantly" but the solution was to offer H some kind of psychological or professional help.  Similarly E "clearly enjoys unsupervised contact with her father.  If the arrangements change and she sees less of her father and/or in a supervised setting I am of the opinion that she too will need professional help to enable her to understand the issues". Even the mother is criticized "for her deep desire for her children to have a relationship with their father" on the basis that she was not giving sufficient thought to the need to protect her children.  Yet the Court Welfare Officer did not seek to discuss with Dr Boakes the alternative professional view which might have turned these conclusions on their head.  We regret that some of the professionals in this case seem not to have been able to see the wood for the trees.

57.      We have asked ourselves whether it has been established on a balance of probabilities that the father or the uncle has been guilty of sexually abusing R and have concluded that the answer to that question is in the negative. Justice demands however that we express ourselves more positively.  In our judgment there is not a shred of credible evidence that either the father or the uncle has been guilty of such acts of sexual abuse.

58.      We turn to the applications by the mother for a prohibited step order and by the father for a contact order. We declined during the hearing to re-visit the causes of the undoubted animosity which exists between the father and the mother and we do not think that any useful purpose would be served by addressing those causes now.  We understand why the mother should have pursued her application for a prohibited steps order.  In the light of the evidence of Dr Royston it would have been extraordinary if the mother had not reacted as she did.  There remains only the "allegations" of E that the father touched her inappropriately.  The application of the mother makes it clear how this came about.

59.      In September 2005 the mother was in regular communication with R who had by that time been in the care of Dr Royston for 12 months.  The mother had learned of the allegations against the father and the uncle and had naturally been worried by them.  She decided to have a conversation with E about her private parts and asked her if anyone ever touched them.  E, then aged 4½, replied that "Daddy touches me in the bath" and demonstrated by cupping her hand to show how he touched her in the genital area.  The mother then telephoned R at Ticehurst and told her what E had said.  R had become upset.  Later that evening Dr Royston (who had evidently spoken to R) had telephoned the mother and matters unfolded from there.  The father denies washing E's genital area in the bath but agrees that he washes her hair and that he dries her between the legs when she gets out of the bath.  This is what Mr Bainbridge was subsequently to describe as E's allegations of "sexually abusive behaviour against [her]". The reaction of Mrs Mundy, the Child Care Officer, to whom the mother reported her concern was proportionate and sensible.  She told the mother not to be concerned but to tell E to take a flannel with her when she next stayed at her father's house.  Essentially, the same reaction was later shown by Mrs Havens.  Nothing in this trivial incident justifies the making of a prohibited steps order and we accordingly reject the mother's application for such an order.

60.      We have indicated that we do not propose to examine the personal conduct of the parties. We must state, however, that neither the mother nor the father is wholly innocent of conduct that is potentially detrimental to the well-being of the children. We do not imply that either of them is aggressive or unkind towards the children.  On the contrary, the evidence shows that both of them love their children dearly and that that love is reciprocated.  It is clear however that the mutual animosity between the parents is causing the children serious harm.  H is already, at the age of 8, deeply affected by it.  The Court urged the parents in January 2006 to communicate with each other in a civilised way and to demonstrate to the children that they could behave maturely in that way. The aggression and highly offensive e-mails and text messages emanating particularly from the father should cease. The children will only grow up to become balanced and contented adults if their parents can show each other mutual respect.  The parents should not divide their children's loyalties and should indeed help them to move easily between their respective homes without feeling tensions and fear that they might offend or upset one parent or the other.

61.      The general principle is that contact with a parent is a fundamental right of a child which is to be denied only in exceptional circumstances.  The principle was conveniently explained by Ward LJ in Re M (26/2/00) in the following way -

"The courts have consistently followed the almost universally accepted psychiatric opinion that the making of a contact order is beneficial to the well-being of every child because contact is so important for self-esteem and confidence, especially in adolescence - as some of the psychiatric evidence in this case demonstrates.  Thus the view of the court is that it is better to have contact than not to have contact.  So firm is that opinion that the approach of the court is that sound or cogent reason has to exist before contact is denied".

62.      We have considered the checklist of relevant considerations set out in the English statute and applied in practice in this jurisdiction. There is no reason why the father's application for contact with the children should not be granted.  In principle, contact will be ordered on the interim terms laid down by the Court on 6^th January 2006 but we are prepared to hear argument on any refinement to that order sought by either party.

63.      It only remains to deal with the prohibited steps order sought against the uncle.  We have already found that there is no credible evidence that the uncle was guilty of sexually abusing R.  No evidence at all has been adduced of any improper conduct towards H or E.  It follows that there can be no ground for making any such order against the uncle. Sadly, the cancer of suspicion is not so easily cut out, and we think that the uncle would be wise to exercise caution in his relations with the children for some time to come in his own interests.  Fairness to the uncle dictates however that we should state unequivocally that, if the placing of his own son on the register of children at risk is the consequence only of the reports of Dr Royston and Mr Bainbridge, that placing should be removed by the Children's Service forthwith.  We would add that the recommendation in the ICIS report that the uncle's son should be advised by the Children's Service of the allegations made by R is one which we trust that the Children's Service will ignore.  The timing and appropriateness of any such action is entirely a matter for the uncle, and is the business of no-one else.

64.      We cannot conclude this judgment without referring to the position of R.  We do not seek to impugn the professional integrity of Dr Royston even if we have been very critical of his evidence and of his approach to the giving of his evidence.  What is clear, however, is that R's treatment at the Priory Ticehurst Hospital over more than 18 months has not improved her condition; indeed, it may have made it significantly worse.  If this treatment is being funded by the Department of Health in Jersey we hope that the relevant officials will give serious and urgent consideration to withdrawing that funding so that R can return to Jersey and start the process of restoring her fractured relations with her family and, hopefully, recovering her health and equilibrium.

Authorities

Re M (26/2/00).