High Court of Justice in Northern Ireland Family Division Decisions

(i) The appellant was born on 1 January 1964 and is 43 years of age.

(ii) LH and HH are twins. They were born on 28 March 1984 and are now 23 years of age. They are the daughters of the appellant. The appellant has one other daughter namely NH born on 29 December 1986 who is now 18 years of age.

(iii) In March 1997 LH and HH made criminal allegations against the appellant of a sexual nature.

(iv) The appellant attended Armagh RUC station and was interviewed in respect of the allegations on 31 March 1997.

(v) The appellant was arrested and cautioned prior to interviews in respect of allegations of rape, incest, gross indecency and an indecent assault.

(vi) The appellant was subsequently charged by police on 31 March 1997 in respect of various offences alleged to have been committed between 1 January 1995 and 2 March 1997.

(vii) The appellant was subsequently indicted on charges alleging rape, indecent assault and gross indecency said to have been committed between 27 May 1995 and 20 March 1997.

(viii) The appellant denied those allegations. There were four criminal trials. LH and HH gave evidence at the first three trials. The appellant was convicted at two of those trials but in respect of those convictions he successfully appealed. At the fourth trial the prosecution presented no evidence and the appellant was acquitted.

(ix) In 2004 the appellant formed a relationship with NM.

(x) LM is the daughter of NM. The appellant is not her father. The Trust were concerned about the safety of LM on the basis that the appellant was living in the same household as her and they believed that he had in the past sexually abused LH and HH.

(xi) The Trust initiated care proceedings in respect of LM and those proceedings were transferred to the Family Care Centre. Her Honour Judge Loughran determined that a necessary preliminary issue affecting the threshold criteria in respect of the care proceedings was the issue as to whether the appellant had in fact committed acts of sexual abuse against his own daughters, LH and HH, as had been alleged in the criminal trials.

(xii) The judge in the event held that he had sexually abused LH and HH. She determined that the threshold criteria were met and she made a care order on 3 May 2007.

The admission of video evidence

"In this general conversation the most striking issue that arose for LH and HH was the fact that now they are 18 years of age this trial will be different, that is, they will be giving evidence in chief in person in an open court and they will not be able to use CCTV."

"12. The most striking feature is the fact that feels drained. She is sick of fighting and is literally saying that she has not the energy to go on. She wants to feel that she has control of the situation.

13. She feels a lot of responsibility in her coming to a decision not to give evidence, particularly towards HH.

…

15. She had made her decision on that day that she does not want to give evidence and feels this right for her, especially with the new circumstances.

16. Comment – I agree with LH's own assessment. I am concerned about her mental state and I feel it is imperative that she is referred to her GP, as I feel there should be an assessment as to whether or not she is clinically depressed at present. I have no doubt that if she gives evidence her mental state will worsen."

"17. I am more concerned about HH than I am about LH …

…

20. She spoke a lot about the serious overdose that she had taken. She has liver and kidney damage. She is adamant this was not a 'cry for help' but it was a serious attempt to end her life. She feels if she gives evidence, that no matter what the outcome is that she will take another serious overdose. She frequently feels the need to take tablets.

…

22. She is having a lot of flashbacks at present.

…

26. Comment – Irrespective of HH's decision it would be my opinion that HH should not give evidence. I am very concerned about her mental state and, again, I would wish to alert her to General Practitioner with HH's permission."

"According to Dr Swann's report of October 2002 the position then, at the time of the fourth trial, was that 'the most striking issue that arose for HH and LH is the fact that they are now 18 years of age and will not be able to use CCTV' and her condition was that, while the girls could tolerate giving evidence by video and by television link, they were distressed at the prospect of giving evidence without special measures."

I do not consider that the report dated 18 October 2002 from Dr Swann establishes that LH or HH could then have tolerated giving evidence by video and by television link.

"To enable the Trust to provide evidence as to the inability of the two adult daughters of Mr FH to attend court and as to the reasons for that inability."

"The young women by which she meant LH and HH,

Are afraid of their father and his family and have applied successfully for a non-molestation order against him;

Do not want their father to know where they are living and have therefore not applied for electoral registration;

Feel let down by the criminal process having given evidence in two trials (sic) against their father and having seen his convictions overturned;

Were both self-harming up until 1998 the time of the first trial;

Received counselling after the trials and they continue to be prescribed medication by their GPs.

When Ms Dougan saw them 3-4 weeks before she gave evidence

HH presented as angry and aggressive feeling betrayed by her father and the legal process; she talks in her sleep and is then questioned by her partner about matters which she has not disclosed to him;

LH is weepy."

"2.8 [LH] is a person with limited intellectual competence. Her global level of intellectual efficiency falls within the upper mild/lower borderline range of learning disability. The lady's intrinsic vulnerabilities associated with her cognitive status were markedly evident during clinical interview.

2.9 The lady is easily precipitated to distress when referencing her abusive life history. She readily gave acknowledgement that she is afflicted of feelings of tension, frustration and pressure, and is subject to a low mood throughout significant periods of the daytime period. She has been on anti-depressant medication, at times, over the previous two year period.

…

2.14 Any reference to the lady's abusive life history precipitates distress within the lady. The lady had exceptional difficulty referencing her abusive life history in any detail, due to the high prevalence of troubling thoughts and feelings associated with same.

Opinion

3.1 It would be considered that the lady would be unable to address the traumas associated with her abusive life history. Providing evidence within a court setting would heighten the lady's emotional frailty, which was markedly significant, and it would be considered that the telling of her life history within such a setting would result in a significant rupturing of her fragile emotional state. Presently, she does require the assistance of her general practitioner to access an anti-depressant medical regime, in addition to which due to the lady's extensive vulnerabilities associated with her limited intellect and abusive life history, she would require the advice, counsel and support from competent adults.

3.2 It would not be recommended that [LH ]be placed in a court setting to re-live the traumas of a chronically abusive life history."

"2.10 The lady referenced that she had been on anti-depressant medication during the time of the previous court attendance. The lady referenced that she was afflicted with post-natal depression following the birth of her child, ….

2.11 The lady gave emphasis that she is trying to establish stability within her life domain at the present moment. She readily gave acknowledgment to the supportive role of her partner, who is aware of her life history. She readily gave acknowledgment that she is subject to a low mood and melancholic introspection within routine of daily life. She readily gave acknowledgment that she is embarrassed and 'feels terrible' when reference is made to her life history, but gave equal emphasis that she has responsibilities to look after her child and 'I can't be sad around him'.

2.12 The lady gave emphasis that she does not wish to revisit or recall of her abusive life history in any setting. She gave repeat emphasis that references to her life history precipitates troubled feelings within her, which were markedly evident during clinical interview.

2.13 The clinical picture is that of a person whose global level of intellectual competence falls within the borderline range of learning disability. The lady's fragile emotional state was markedly evident during clinical interview. The lady is attempting to engender a level of stability within her life domain, but she readily acknowledged that she worries excessively about her sister, LH, whom she would consider to be a markedly vulnerable person who is prone to depression and distressed episodes. There was clear evidence of a closeness between the sisters.

2.14 There were no indicators that the lady's presentation during clinical interview was exaggerated for effect or potential secondary gain.

…

2.16 [HH] had difficulty recalling in detail the nature of her abusive life history. It would be considered that the lady's efficiency to give evidence would be significantly compromised by her fragile emotional state and, within the setting, undoubtedly her emotional frailties and vulnerabilities would be markedly evident. Provision of evidence within a court setting would be a marked risk factor to the lady's emotional health."

The medical evidence.

(a) LH. Her hymen was not intact. There was a healed defect posterily although not extending to the vaginal wall. LH was then aged 13.

(b) HH. The hymen was not intact. It also had a healed defect posterily although not extending to the vaginal wall. HH was also then aged 13.

"the fact that a similar defect was found in both girls whilst one had a documented pessary insertion does cast doubt on this explanation".

I understand him to mean by this that it casts doubt on that explanation not only in respect of LH but also in respect of HH. The defects in the hymens are consistent with sexual activity in relation to both LH and HH but the fact that only HH had a Canesten pessary inserted is inconsistent with that explanation being acceptable.

"I note that the medical evidence does disclose some sort of defect in the hymen of both girls but I believe that there may be other explanations for such defects. For example the girls have had cream applied to this area by my wife previously and one of the girls had a Canesten pessary inserted in that area previously."

Assessment of the credibility of LH & HH's evidence.

"There were factual errors in some of the details of the evidence of LH and HH. I have already referred to the most significant of these namely the conclusive medical evidence that full penile penetration on more than one occasion of the vagina of either girl, as alleged by each girl, had not occurred. Another example of an error – and I emphasise that this is but one example – is that the film The Bodyguard was not broadcast on a Saturday as alleged by LH but on Monday 24 February 1997."

"The medical evidence showing that neither girl was subjected to repeated penile penetration of the vagina is of great significance. It casts a really serious doubt on the credibility of all the allegations made by LH and HH. That this was recognised by the Director of Public Prosecutions was reflected in a decision to consult Dr Swann. In the absence of a persuasive explanation of glaring inconsistencies between the medical findings and the allegations of repeated penile penetration of the vagina the inevitable conclusion is that each girl is lying. The explanation relied on by the Trust is that of Dr Swann. However, based on her qualifications and experience of many child abuse cases – as investigator, as researcher, as therapist – is that the girls were confused as between the vagina and the vulva and that what they described as penile penetration of the vagina was what is known as dry sex, thus described because there is no lubrication of the vagina. None of the medical experts challenged this view as a possible explanation."

Conclusion.