Scottish Sheriff Court Decisions

SHERIFFDOM OF LOTHIAN AND BORDERS AT EDINBURGH

 

Court reference: F1201/08

JUDGMENT by SHERIFF N. M. P. MORRISON Q.C.   in causa   JS (Assisted Person) Pursuer against   ND (Assisted Person) Defender   __________

 

Act: Halley, Advocate, instructed by Hughes Walker, Solicitors, Edinburgh

Alt: M Hughes, Advocate, instructed by Campbell Smith, WS, LLP, Edinburgh

 

 

Edinburgh, 13 April 2010.

 

The sheriff, having resumed consideration of the cause:-

 

Finds in fact that -

(1) The pursuer, who is South African, and the defender, who is Spanish, married in the United Kingdom in February 2003. They have lived in Edinburgh since meeting.

(2) The pursuer and defender have two children, namely, Z, who was born on 30 May 2003, and N, who was born on 15 December 2007.

(3) The defender left the pursuer on 1 October 2008 after the defender claimed that Z had alleged, on the evening of 30 September 2008, that the pursuer had tickled and kissed her vagina.

(4) The pursuer and defender have not lived together since 1 October 2008.

(5) The pursuer has parental responsibilities and rights by law by reason of being the father of his children and married to their mother, the defender.

(6) The children live with the defender in Edinburgh, and the pursuer has had supervised contact with them and has a current court order of 20 February 2009 for supervised contact for two hours each week.

(7) The pursuer has not sexually abused his daughter.

(8) The pursuer has not abused his son.

(9) Z adores her father. The pursuer is a good father.

(10) There is a risk that the defender, if allowed to take the children on holiday to Spain, will not return.

 

Finds in fact and law that -

(1) It is in the best interests of the children that the pursuer has unsupervised contact with them.

(2) It is not in the best interests of the children that the defender should be allowed to take the children for visits to Spain meantime.

 

Therefore, sustains the pursuer's first and second pleas-in-law, repels the defender's amended first and third, and second, pleas-in-law; finds the pursuer entitled to unsupervised contact with the said children at times to be agreed between the parties; refuses the defender's crave for a specific issue order to take the children to Spain for six weeks each year; and finds no expenses due to or by either party.

 

 

 

 

 

 

 

 

NOTE

 

 

Introduction

[1] The pursuer wishes to have unsupervised contact with his daughter now aged 6 and son now 2 years old. His wife, the defender, does not want him to have unsupervised contact unless there is a guarantee that the children will be safe from sexual abuse by the pursuer. The defender left the pursuer on 1 October 2008 claiming that their daughter then aged 5 had said to her that her father had tickled and kissed her vagina. There is no suggestion that the pursuer has abused his son in any way.

 

[2] The first and principal issue to be decided in this case is whether the pursuer sexually abused his daughter. If he did, then contact would be supervised. If he did not, contact could be unsupervised. The pursuer has had supervised contact with the children. He has a current court order of 20 February 2009 for supervised contact for two hours each week.

 

[3] The defender seeks a specific issue order to take the children to Spain for six weeks each year. In submissions, it was indicated by counsel for the defender that it was no longer sought to deprive the pursuer of his parental rights and parental responsibilities, which he has by law, as had been sought in the defender's first crave. The second plea-in-law for the defender was, accordingly, not insisted in.

 

[4] The defender had been ordained to lead at the proof. The defender gave evidence, her friend Miss NMP and then Tracey Black, a senior practitioner social worker, also gave evidence. Dr Brenda Robson, the child psychologist instructed for the defender, was ill and counsel for the pursuer agreed to begin his case. The pursuer, then Dr Bryan Tully, the child psychologist instructed for the pursuer, and then Detective Constable Colin Johnston, gave evidence. Mr John Butler, the pursuer's computer expert then gave evidence in chief, but was not cross-examined at that time because the defender wished to instruct her own expert. By this time Dr Robson had recovered and she gave evidence. Thereafter Miss Beaumont, a Spanish translator and interpreter instructed for the pursuer, gave her evidence in chief. After adjournments Mr Butler was cross-examined, then Miss Emma Porter, the defender's computer expert, gave evidence; and finally, Miss Beaumont was cross-examined for the defender. Dr Robson met the children as well as the pursuer and defender.

 

 

Historical introduction

 

[5] The pursuer is South African. He does not speak Spanish. He is currently unemployed. Latterly, until 18 December 2009, he was with the Bank of Scotland as a customer services adviser. He had moved to Edinburgh in 2002. The defender is Spanish; she is fluent in English. She has a degree in philosophy. She is an administrator at Edinburgh University involved with research into renewable energy and has been doing this part-time since 2008. The pursuer and defender met in May 2002. They started living together in September of that year. Shortly after that, the defender became pregnant with Z. The pursuer and defender were married in February 2003 and Z was born on 30 May 2003. During the marriage the pursuer and defender separated and were reconciled in mid-2006. They may have separated more than once because the defender said they had been reconciled three times. N was born on 15 December 2007. The parties separated on 1 October 2008, the day after the allegation of sexual abuse of Z by the pursuer was said to have been made. They have not lived together since then. There is no prospect of a reconciliation. The pursuer has never been charged with any offence in relation to his children and there was no report to the procurator fiscal.

 

 

The allegation of sexual abuse

[6] The allegation of sexual abuse is said to have arisen in this way. On 30 September 2008 the defender was putting Z to bed. She was, as part of a regular routine, tickling Z. In evidence in chief the defender said that Z had said that dad had touched her private parts. The defender said that Z had asked her to tickle her below. The defender asked if she touched her father; Z said no. The defender asked if her father kissed her. Z said yes. The defender asked where, and Z put her legs up and pointed to her private parts. In cross-examination the defender said that Z asked her to tickle her below. Z said that dad did this. The defender asked if Z did that to the pursuer; Z said no. The defender asked if she kissed her dad, and she said no. The defender asked if her father kissed her, and she said "my chi chi" (a children's term for private parts in Spanish).

[7] In her statement to the police on 2 October 2008 (no. 5/4/2/46-51 of process), the defender said that, on 30 September, when putting Z to bed, she had said that she had asked Z, when tickling her, if she wanted to be tickled anywhere else. Z asked her to tickle her chi chi. The defender asked who had tickled her there and Z said "daddy". The defender started to tickle Z all over and asked if the pursuer tickled her in these places. Z lifted up her legs and pointed to her vagina. Later she asked Z if she kissed daddy, and she said no. Z said that daddy kissed her. The defender asked where, and Z lifted up her legs and pointed to her vagina. The defender said that the conversation was conducted in Spanish because the pursuer did not understand Spanish.

 

[8] The defender got in touch with her friend, Miss NMP, who told her to go to the GP. The defender told the pursuer that she was taking Z to see the GP but did not say why. Before going to see the GP (Dr Stewart) on 1 October 2008, the defender said she questioned Z again about what had been said the night before. The defender spoke to the GP while the children waited outside. The GP contacted the Child Protection Amethyst Team. Both Dr Tully and Dr Robson indicated that parents would naturally question a child and rehearse the evidence to be sure what the child was saying. This could harm the veracity of what the child said subsequently in interview. Dr Robson said one had to take account of the fact that parents might do this and thereby sow seeds in the child's mind.

 

[9] Z was interviewed in a joint investigative interview by DC Colin Johnston and Miss Black on 2 October 2008. The manuscript note of the interview taken by DC Johnston is in number 5/4/2/35-43 of process. During the interview, in spite of the direct, leading, suggestive and closed questions, Z denied that her father had tickled her vagina and did not implicate her father in doing anything improper or inappropriate to her. There was then, on 3 October 2008, a paediatric forensic medical examination of Z, which showed that everything was normal, there were no recent or old injuries, that is to say there was no medical evidence or physical signs of any abuse.

 

[10] Thereafter Miss Black undertook "direct work" with Z, about which I say more later. After four such sessions, Z was subjected to a second joint investigative interview on 10 December 2008. At about that time Z was referred by Miss Black to the Skylight Project, which does therapeutic work with children who have been sexually abused. Miss Black continued with her direct work after this interview.

 

[11] On the first day of the proof there was lodged for the defender a minute of amendment, which was unopposed, that included a new averment in answer 6 that the defender accepted that the repetitive nature of the questioning and interviewing of Z following the first interview on 2 October 2008 at the instance of Miss Black and Skylight, rendered of limited value, if any, information from Z of sexual misconduct by the pursuer. This amendment was made, I was informed, after consultation with Dr Robson.

 

[12] When Dr Robson gave evidence she was very critical of the interviewing techniques used in the two joint investigative interviews and of the so-called "direct work" of Miss Black. The joint investigative interviews were seriously flawed. There were direct, leading and closed questions, and pressure put on the child. In her opinion there was no evidence that would substantiate the claim that the pursuer sexually abused his daughter. The evidence could not be relied upon. The only evidence for abuse, she said, would be the reliability of the defender.

 

[13] During the first interview, Z had been talking about being tickled by her mother. Miss Black asked if her father tickled her. Z said "Yes, everywhere, a bit different". Later Z had been explaining that she had gone to the doctor "because every time I go to the toilet it is sore", having pointed to her vaginal area. Miss Black asked if the place the doctor looked at was where her dad tickled her. Z said, "No, just some people tickle me there". Miss Black asked if some people touched her in that place and Z said, "Yes, I've already told you, some bad people".

[14] Counsel for the defender attempted more than once to find support in these statements of Z, at least for requiring further investigation. Since nothing after the first interview was being relied on by the defender, this scarcely seemed relevant. Dr Tully thought that, with the reference to bad people, it was fair to say that a comment of that kind could be the basis of suspecting something. Dr Robson on the other hand did not agree, she said that there were explanations for each. In relation to her father tickling her "a bit different" Dr Robson said that a lot of children say that their mothers and fathers tickle differently. I agree. The reference to some or bad people, Dr Robson said, could be that Z was reporting generally and not about herself. It was known, she said, that both parents had told Z that she should not touch herself, and Z had said that her father did not do it to her. It was also clear that Z had been examined and treated for a urinary tract infection in hospital; which, it seems to me, she might also associate with bad people. I take that view as Dr Robson thought that Z could be making a link with her medical problems because she had had repeated vaginal infections. Miss Black was not sure if she knew at the time of the interview whether Z had been examined and treated for a urinary tract infection. Dr Tully had not said that there was a basis for suspecting the pursuer.

[15] Z had had urinary problems. She had a urinary tract infection in August 2008 after she came back from a holiday on her own in Spain visiting her grandparents. This is noted in the case conference record at 5/4/1/162. There is also mention there of urinary frequency in March 2007. According to the defender, Z had had the problem before that. The problem was investigated and treated.

 

[16] In submissions, counsel for the defender confirmed that the only allegation and basis for the defender's case of sexual abuse by the pursuer of Z now being made was what the defender said Z had said to her on the evening of 30 September 2008.

 

[17] Assuming for the moment that Z had said what the defender claimed she said, most of it has an innocent explanation. Z apparently asked her mother to tickle her vagina. Dr Tully indicated that children can be somewhat sexualized and find comfort or pleasure in their own stimulation and even ask someone else do it. It occurred in all studies and an invitation to touch did not have to carry a sinister interpretation. Dr Robson referred to the fact that lots of children might ask to be tickled on the vagina. Z is then supposed to have said to the defender that her father tickled her there. Dr Tully said that it was not infrequent for a child to say to one parent who does not want to do something that the other parent does it or says it is okay. Both Dr Tully and Dr Robson spoke of kissing private parts on the other hand as being of concern and inappropriate sexualized behaviour.

 

[18] Credibility and reliability are, therefore, important issues in this case.

 

 

Credibility and reliability of the defender

 

[19] The first point to make is that, notwithstanding Z being questioned by the defender on 30 September, her mother questioning her again before going to the doctor the next day, and the direct and leading questions and pressure put on Z in the joint investigative interview of 2 October, Z denied that her father had touched or tickled her private parts.

 

[20] An issue arose as to whether the defender believed in the views of Valerie Solanas, author of the SCUM manifesto (The Society for Cutting Up Men) written in 1967. Whereas Freud had a theory that women were castrated men, Solanas believed that men were incomplete females. The defender was asked to comment on the SCUM manifesto for a new publication. English versions of both them are to be found in number 5/5/2 of process. The defender said she agreed to write a commentary because she knew of two of the other academics, who were also to contribute, whom she had come across at conferences. The defender claimed that it was the pursuer who gave her the SCUM manifesto to read, but he denied this. It was not clear why the defender would be approached to contribute to the publication, though she had studied feminist literature, but not Solanas, at university. The defender was asked in cross-examination if she agreed, or associated, with Solanas' beliefs. She said that she associated with Solanas in the points she analysed. She said that she did not agree with Solanas' statement at page 31 of the manifesto (5/5/2/107) that a man wants his daughter sexually. She considered that Solanas was being ridiculous about viewing men as a genetic defect, but that what Solanas wrote had an impact on her as when someone shocks you. She agreed with her own statement in her commentary about the clarity of truthfulness in Solanas' writing (page 91 - 5/5/2/137). The defender agreed that her views were as in her commentary on page 95 (5/5/2/139) about the domination of women and women's relegation to the "reproductive function ... that plunges her into an emotional and psychological weariness that leads to psychosocial mistreatment". With a wry smile she said that her statement that "marriage = servitude contract" was her view. At the end of her commentary the defender wrote of Solanas' work "I understand her stance, each comma and each full stop. I understand her language, my language" and "she has conquered me for the rest of my life", but denied that she associated herself with Solanas' views. This statement points at least to empathy.

 

[21] The pursuer described his wife as a feminist and an anarchist and himself as an anarchist or an anarcho-syndicalist, although the defender denied that she held anarcho-feminist views. I think that the defender is a feminist with strong views who tried to distance herself in evidence from some of Solanas' views and her own commentary. On the other hand I do not think that the defender adopts them wholesale or uncritically, which is clear from her commentary. Dr Tully indicated that Solanas' sort of narrative suggested a personality problem and his first concern would be for her; but that, if anyone thought that Solanas' work was rational, his concern would shift to that person. The defender herself described Solanas as unbalanced and unstable. I do not think that the defender was motivated to accuse the pursuer of abusing his daughter on the basis of Solanas' views.

 

[22] In her evidence in chief the defender stated that the pursuer said that when there was sexual liberation things like paedophilia would be normal; she also claimed that he masturbated at his computer. She claimed that, in 2007, Z, when her private parts were sore, told her mother that she had touched herself. The defender told her that she had to wash her hands and that Z had said that her father had touched her there. The pursuer denied it. The defender did not remember the pursuer giving her a satisfactory explanation. The defender said that on 29 September 2008 the pursuer had put Z to bed. He had dragged her to the bedroom. He was with her for an hour. When the defender went in, he jumped off the bed, pushed the defender out of the door and slammed the door shut. When he came out, he said that he hated paedophiles. The defender said that the pursuer used to lie in the bath with Z, playing with himself; and that Z had told her about her playing in the bath with watering the flower, that is the pursuer's penis. The weekend before 29 September, when the pursuer was playing on top of Z, the defender had to push him off. According to the defender, there was mention by Z of an occasion in 2006 when Z alleged that the pursuer had touched her inappropriately in the car outside the nursery. This is the only previous incident alleged on record by the defender.

[23] In her statement to the police on 2 October 2008 the defender mentioned none of these things. She said, as she said in evidence, that while the pursuer was a bad husband she thought that he was a good father.

 

[24] The defender said that she had tried to tell DC Johnston about the play in the bath, but that he would not let her and had said that he had bathed his own daughter and that was alright. In cross-examination the defender said that she told her lawyers and social workers about the pursuer masturbating. She said that because DC Johnston was dismissive she could not tell him about the incident on 29 September. She wanted to tell DC Johnston about the pursuer's interest in paedophilia but he would not allow her to do so. She thought that she told DC Johnston, but she did tell the social worker, about Z having probably been complaining in 2007 about sexual abuse. The defender said that she complained about DC Johnston and that he was intimidating at the joint investigative interview with Z, and intimidating to her when she gave her statement.

 

[25] DC Johnston said in evidence that no formal complaint had been intimated to him, which would have been the case if there had been a formal complaint. He would have been asked to make a statement if there had been a formal complaint. DCI Mackenzie and a sergeant had visited the defender in order, as he understood it, to explain police procedures. There was no mention of the defender suspecting the pursuer's behaviour in the past; he said, indeed, that there was a reference to the pursuer being a good father. He was not taken off the case. Nothing was taken up with him as a result of the visit of DCI Mackenzie to the defender. DC Johnston said he had not acted improperly or unprofessionally, and had not been intimidating. If the defender had mentioned anything about the way the pursuer bathed Z, it would have been in the statement. He read through the statement with the defender. At the end he asked her if she had anything to add. He may have mentioned that he bathed his own daughter as otherwise the defender could not have known that.

 

[26] I did not find DC Johnston, a softly spoken man, to be of an intimidating manner. I think that, if the defender had mentioned any of these things, DC Johnston would have recorded them. On being asked if she had anything to add, she would not have been constrained from doing so by DC Johnston's manner.

 

[27] Counsel for the defender submitted that, in the shock of an allegation of this kind, a parent might not immediately recall all previous incidents. Miss Black said that she would not expect people to remember things or make connections in one interview. Miss Black did say, however, that she would not expect a mother to say that she suspected as much a year ago; only if she did. She did not understand that the defender did suspect anything from the past. She thought that the defender felt that Z had said something but the defender dismissed it at the time. In her case note for 2 October 2008 Miss Black has recorded (5/4/1/101) that the defender "expressed feeling shocked and ashamed that she hadn't previously noticed anything amiss".

 

[28] Miss NMP, who had known the defender since Z was a baby, had, of course been contacted by the defender on 30 September. She had accompanied the defender and the children to the GP's surgery; and the defender and the children stayed with Miss NMP after that for about a week. According to Miss NMP the defender said that she should have realised what was going on, she should have seen some sign. In cross-examination Miss NMP said that the defender had not said that she had previously suspected anything. The defender had not mentioned accusing the pursuer of touching Z in 2007. In submissions, counsel for the defender placed emphasis on the fact that Miss NMP had said that the defender did not go into detail about what Z had said because she had indicated that these were private matters that would not be discussed. Notwithstanding that, I consider it very strange that the defender would not have mentioned to Miss NMP that there had been some signs in the past which she now thought were suspicious, even without going into detail.

 

[29] There is no mention of these matters in the case conference minute of 27 October (no. 5/4/125-147 of process) except one. At 5/4/1/133 the defender refers to an occasion when the pursuer's play with Z had become too physical, he was sitting astride her and the defender had to pull him off. This did not appear to have been a comment suggesting a sexual connotation. There is reference to Z being reluctant for her father to put her to bed which she believed to be her feeling jealous of N, but no mention of the alleged incident on 29 September. There is mention of the defender feeling that the pursuer spent a lot of time on the computer but no mention of masturbating. There appeared to be no mention of these other alleged incidents or suspicions of earlier sexual abuse in Miss Black's case notes.

[30] Dr Robson was asked whether she would have expected a mother, who had made allegations about a father in 2007 and a year before that, to say in October 2008 that she had been concerned about them. Dr Robson's answer was definitely yes, if there had been concerns over two years. She thought it very strange that there was no mention of it. She confirmed that, if the defender had said to the police that the allegation on 30 September had come as a shock, while thinking that the pursuer was a good father, there was a tension between that and what was said to have been a suspicion in 2007. She wondered why the defender would not want to strengthen her case. In submissions, counsel for the defender said that the defender had trusted the pursuer and accepted his explanations in 2007. While the defender said that she trusted the pursuer, I note that in evidence she said that she did not remember the pursuer giving her a satisfactory answer when she told the pursuer in 2007 about Z saying that the pursuer touched her vagina when it was sore. In cross-examination she thought that Z was probably complaining of sexual abuse but did not think so at the time. The pursuer had said to her that children of that age often touched themselves. It seems to me that, even if she had trusted him in 2006 and 2007 and had accepted his explanations at that time, the suspicions would have resurfaced if there had been an allegation by Z on 30 September 2008, and that the defender would have mentioned them.

 

[31] The pursuer had made recordings of conversations between himself and the defender after, he said, the defender had accused him in September 2007 of adultery, had said that she wanted a divorce and threatened that he would never see N (who was not then born). In the transcript of the recording for 14 October 2007 the defender says that she wanted to find out if the pursuer was touching Z in the car as Z had said (see 5/6/1/447). The pursuer challenged her and the defender backed down saying that she was not making an accusation. Backing off, Dr Robson said, did not mean that the pursuer was satisfied. One has to be careful, she said, about reading too much into these recordings. They were made by the pursuer without the defender's knowledge and so could be guided and directed by the party who made them, according to Dr Robson. This was the largest volume of recordings of this kind that Dr Robson had seen (473 pages). There is no doubt, however, that the recording confirms that the defender did say something about an alleged incident in the car which the defender repeated in evidence. She did not mention it in October 2008.

 

[32] I do not find the defender to be credible when she says that there were these examples, or signs, of sexual abuse of Z before 30 September 2008. If she had had these suspicions I find it incredible that she did not mention them on 2 October 2008, by the time of the case conference or thereafter. I do not believe the defender that the events mentioned in paragraph [22] above occurred.

 

[33] During cross-examination of the defender on 16 February 2010, there was put to her an email from a Spanish lawyer to her and her reply, both of 21 April 2006. These emails the pursuer had found the night before, that is 15 February. These emails were added for convenience to number 5/6/1 of process as pages 474 to 476. They were in Spanish and were, together with the defender's initiating email, subsequently translated into English (no. 5/8/2 of process). I refer to them as the Hermoso emails. The defender had sought advice from this lawyer, Pilar Hermoso, whom she knew, about her marital difficulties. Pilar Hermoso, in her reply, wrote that there would be no jurisdiction to divorce in Spain. In the penultimate paragraph of her email, Miss Hermoso, unsolicited, mentioned that there were dirty tricks which she was going to tell the defender about. Then the lawyer wote that "when you are together in Spain, even if you are just on holiday, report an abusive situation". The email went on to explain that immediately the defender would be offered protection including custody and restraining orders. In her reply the defender wrote that she supposed she would have to wait a couple of years and she wrote about what she would do in the meantime. Her email continued "I can't think of much more apart from just waiting for it to be resolved or until I decide to use one of those dirty tricks - the truth is that I've run out of ideas". The defender denied in evidence using any dirty tricks or that she had manipulated her daughter. She explained that, although she and the pursuer had separated, they were reconciled in June or July 2006 and she and the pursuer had gone on to have a second child. This would not have happened if she was going to use a dirty trick, she said. In re-examination the defender indicated that her divorce action was already in court here but that she had put it on hold. She also questioned the provenance of the emails because they did not contain her email address and she wondered how the pursuer had got a hold of the emails.

 

[34] The next day another email was produced in cross-examination of the defender, which referred to paedophilia (to which I refer in paragraph [42] below). The defender challenged the provenance of this email, claiming it was made up. This led to the pursuer instructing a leading computer expert, John Butler, a fellow of the British Computer Society and a chartered information technology professional. The Hermoso and paedophilia emails were on a burned CD-Rom. He was instructed to examine 12 emails including the emails in issue. He examined the disc and found the emails on the CD-Rom. He was of the opinion that the emails had not been tampered with. The defender also instructed a skilled witness, Miss Emma Porter, who was a member of the Institute of Chartered Accountants in England and Wales, had been an IT consultant and was an insolvency practitioner who undertook forensic work. She agreed with Mr Butler's conclusion on the validity of the emails. Two days before Miss Porter gave evidence I had been informed by counsel for the defender that the defender accepted the provenance of the emails.

 

[35] The translations of the emails were not agreed. The pursuer called Miss Melanie Beaumont, a full time Spanish interpreter of 11 years experience, to speak to the translations. She had not translated the emails but had proof read the translations and amended them. In the end the defender did not call a translator. At her postponed cross-examination, Miss Beaumont agreed that, in the Hermoso emails, the Spanish word "maltrato" meaning abusive situation, literally meant mistreatment and not particularly the abuse of children. It could mean domestic or psychological abuse. Miss Beaumont did not think it had the connotation of child abuse.

 

[36] It was submitted by counsel for the defender that the dirty trick was to be used in Spain when the parties were together there, and was not in fact used; and, since that email, the pursuer and defender had become reconciled and expanded their family. It was not clear to me on the evidence how often the defender visited Spain with the children after the Hermoso emails. She said that the pursuer had not been since 2006 and that she had been once to Spain with N who was born in December 2007. In any event the defender did not use Hermoso's "dirty trick" in Spain. She clearly contemplated the possibility of using it, however, when she wrote "until I decide to use one of those dirty tricks".

 

[37] Dr Robson was referred to the defender's email. She was asked whether its terms were a concern if the defender had received an email that a dirty trick might be employed to go to Spain and allege abuse. Dr Robson replied that they were. It suggested that seeds were sown in the defender's mind to make an allegation to get what she wanted. Dr Robson said that it was not uncommon for false allegations to be made in proceedings to stop contact. Counsel for the defender argued that Dr Robson's views had to be treated with circumspection because she was proceeding on the assumption that "abuse" in the context of the Hermoso emails meant child abuse. Even if the word "maltrato" does not have the connotation of child abuse, it seems to me that it did sow a seed in the defender's mind about the possibility of making an allegation of abuse of some sort. I think that the defender acted on it.

 

[38] The defender told DC Johnston in her statement to him that she had been thinking of divorcing the pursuer over the last two years and that she started looking for a lawyer in May 2006 (in evidence she said it was 2007). Notwithstanding, then, that N was conceived and born in 2007, the defender was contemplating divorce. Against the background of the Hermoso emails, it is more than coincidence that the alleged event of 30 September 2008 occurred.

 

[39] According to the defender she and Z sometimes spoke Spanish at home but that Z was "not quite there yet". The claimed conversation about the alleged abuse was conducted in Spanish so that the pursuer could not understand it. Taken with the other circumstances, this is suspicious. The other circumstances are the allegations of earlier inappropriate conduct and the Hermoso emails.

[40] I do not, therefore, find the defender to be credible and reliable.

 

 

 

Credibility and reliability of the pursuer

 

[41] In submissions, counsel for the defender attacked the credibility and reliability of the pursuer.

 

[42] The first issue related to the emails. The pursuer explained in evidence that the emails were from a backup CD-Rom which he had been asked to do by the defender in late 2006 or 2007 before he installed a new operating system on the computer. Something the defender had said in evidence had caused him alarm and that night (15 February 2010) he found the Hermoso emails. He used an internet translator to translate them into English (these are not the translations in process). Another email dated 20 September 2006 was discovered during the same researches. It was produced to challenge evidence by the defender that she did not have an interest in paedophilia. In this email the defender had written that she felt "really really bad having written the one about paedophilia and I thought it was going to be vetoed" (see 5/6/1/477 (Spanish) and 5/8/1 (English translation as amended by Miss Beaumont)). I refer to this email as the paedophilia email; it was added as number 5/6/1/477 of process. In evidence the defender explained that someone was trying to break into the parenting forum and this was being discussed in an email exchange. When counsel for the defender sought a further adjournment on 15 March, because the reports of the computer expert and translator for the defender were still not available, counsel for the pursuer made a concession that the pursuer accepted the innocent explanation given by the defender. The concession was not enough for counsel for the defender who wanted to lead evidence to show that the innocent explanation was obvious to the pursuer all along.

 

[43] I was not impressed with the production of the paedophilia email, with little basis for the purpose for which it was put in cross-examination and persisted in until the concession was made. Of course during her evidence the defender had accused the pursuer of supporting paedophilia. I made it clear during the motion for an adjournment that I was certainly not going to conclude on the basis of the email that the defender had an interest in paedophilia.

[44] At first, the provenance of the Hermoso emails was going to be challenged. Later I was advised that the position then was that the provenance was accepted by the defender, but it was to be proved that the pursuer knew that the paedophilia email had an innocent explanation (as some of the emails were in English) and that the inference that the defender had an interest in paedophilia was improperly made. It also appeared to be sought to be established that it would have taken many hours for the pursuer to find the Hermoso emails on the CD-Rom and that it was unlikely that he found them overnight as he claimed in evidence. Miss Porter explained in evidence that the Hermoso emails were sent and received using Mozilla Thunderbird software and the paedophilia email was sent in Microsoft Outlook. It was easy to see the subject headings in Outlook. To open the emails in Thunderbird she used Wordpad which turned everything, including photographs, into numbers and text. There were some 16,000 pages in this format but after eliminating certain irrelevant material there were still some 3,000 pages. There were seven lever arch files of emails produced in number 6/8 of process. She concluded that it would take a significant amount of time to review the emails, particularly by a non-Spanish speaker, and to translate them to select the relevant emails. I am not quite sure how she was able to identify and eliminate emails to reduce the number of pages from 16,000 to 3,000. Finally in submissions I was informed that the purpose of Miss Porter's evidence was to establish the ease with which access to the emails could be got. It may be that lack of ease was what was meant.

 

[45] Ultimately it seemed that three points were being made. Firstly, that, when the pursuer said in evidence he was unaware of two email accounts (in relation to finding the Hermoso emails), this was untrue because he had sent an email himself using the email account that he said that he was unaware of (6/8/2/3/541). Secondly, the pursuer could not have found the Hermoso emails with the ease with which he appeared to do. Thirdly, the pursuer knew the innocuous context of the emails as some of them were in English. It was not sought to recall the pursuer to put these points to him.

 

[46] In relation to the third point, I note that an adjournment had been sought originally because it was going to be demonstrated that the pursuer knew about the innocent explanation of the paedophilia email rather than its innocuous context. Clearly the paedophilia email was amongst a number of emails on innocuous topics (see 6/8/1 Appendix III). In relation to the second point, Miss Porter said in evidence that it was fair to say that if the Thunderbird emails were opened in Thunderbird they could be analysed faster than by using Wordpad. In relation to the first and second points, it seemed to me that, even if the pursuer had known about the email account in which he found the Hermoso emails and had known about the emails earlier than he said he did, while he may have been untruthful about that, the fact of the matter is that the emails were written. The defender accepted that she received Pilar Hermoso's email and wrote the emails said to be written by herself.

 

[47] I do not consider that trying to prove that the defender was dishonest about how he found the emails, which undoubtedly existed, takes one any distance down the road to establishing that the pursuer sexually abused his daughter.

[48] The next issue was that the pursuer was challenged in relation to his evidence about the occasion when he said that Z had asked him to tickle her private parts. On 24 October 2008 the pursuer phoned Miss Black and mentioned that he had told the defender that Z asked him to tickle her genital area (see 5/4/1/115 - Chronology in the Standard Assessment and Social Work Report). In the case conference on 27 October 2008 the pursuer is recorded (at 5/4/1/129) as saying that Z had asked him to tickle her private area 18 months before the incident on 30 September 2008. He had told her that she should not allow anyone to touch her in her private area and that he had been stern in his response. In his evidence in chief the pursuer thought this was about November 2007 and that Z had a rash. She had taken tissue paper and rolled it like a sanitary pad and put it in her underwear. He and the defender thought this was why Z had a rash. Z asked him to tickle her because it was sore. The pursuer said no.

 

[49] In cross-examination the pursuer said he had told Miss Black that it was about a year ago. He was asked why Z asked him to tickle her if she was sore, but he could not reflect on why. It was pointed out that there was no mention of a rash in the entry in the case conference, but he was sure that Jill McKinnon (head teacher of the High School Yards Nursery School) had said that Z was wetting herself at nursery. It was put to the pursuer that Z asked him to tickle her but that there was no rash or soreness. He replied that there was and that at that time she was wetting herself and he was told that Z had a rash. He explained that, if there is urine on clothes and it touches the skin, one will have a rash. In re-examination he confirmed that at the time Jill McKinnon noted that Z exhibited challenging behaviour - i.e. around November 2007 - Z was wetting herself (see 5/4/1/166).

 

[50] In her submissions counsel for the defender she said that it had not been put to the defender that Z had a rash and was sore when Z had apparently asked the pursuer to tickle her. It is the case that it had not been put. The implication was that the pursuer had made up the request by Z in his evidence. I note that the defender did mention in cross-examination, however, that Z had had a lot of accidents, that is wetting herself, at the nursery school and could not master potty training. Z was at the nursery from March 2007 to June 2008, according to the defender. There was also a reference made to the note at 5/4/1/162 of process about urinary frequency in March 2007. The defender referred in her evidence to Z being sore in her genital area and had touched herself. According to the defender Z had gone on to say that the pursuer had touched her there. Z also had urinary problems, including a diagnosed urinary tract infection, between 2007 and 2008.

 

[51] Dr Tully said that it was his guess that a child might think that tickling a sore vagina might make her feel better, but less likely if she was sore that day. Dr Robson thought that if there was a rash to the extent of being sore and hurting it was not likely that a child would ask to be tickled. If it was a minor irritation, a child might ask to be tickled to relieve it. She thought that the pursuer may have said more than was recorded in the case conference minute which would not be a full account. She was asked in cross-examination if it was an odd feature that it was the pursuer who raised this matter from 2007. Dr Robson agreed, indicating that it did not strengthen his position. Why would the pursuer raise a matter which might be used against him? Dr Tully mentioned that an offender may say he did something because the child had asked him to. In this case, of course, it was the reverse: the pursuer said he had not done something that Z had asked him to do. I do not consider that the pursuer's further detail, or because such detail was not put to the defender, renders the pursuer as not being credible and reliable or that he had not had this conversation with Z. The pursuer's evidence on this issue is at least plausible.

 

[52] As was submitted by counsel for the pursuer, even if the pursuer was not believed as a witness, that did not mean that the opposite was established. It did not mean that the allegation that the pursuer sexually abused his daughter was proved.

 

[53] It was not put to the pursuer in cross-examination that he had abused his daughter. Counsel for the defender argued that she was not aware of what the pursuer had done. The defender's position was that Z said that the pursuer abused her; that, as the defender had led in evidence, the pursuer heard what her position was and the court had the pursuer's position from his evidence in chief in which he denied the allegations. I was referred to the purpose of cross-examination in Macphail at paragraphs 16.73 and 16.76. The pursuer was asked in cross-examination, however, what his position was in relation to the allegation of 30 September 2008. To that he replied that Z was coached to make an allegation.

 

 

Did the pursuer abuse his daughter?

 

[54] There was no evidence from the first joint investigative interview that the pursuer abused Z. The questioning of Z before the interview and the manner of questioning in the interview reinforces Z's denial that her father abused her. Dr Robson said that there was no evidence that could be relied upon.

 

[55] On the evidence I consider that the defender, who had been thinking of divorcing the pursuer for two years and who had been given the idea of making up an abusive situation, made up the allegation of abuse and tried to coach Z to support it. I do not believe the defender's evidence that Z made an allegation to her that the pursuer sexually abused her. On the evidence, the pursuer did not sexually abuse Z.

 

 

 

Contact

 

[56] There was no dispute about contact in principle. The question is whether it should be supervised or unsupervised. During submissions counsel for the defender amended the defender's first plea-in-law from one of no contact to one of it being in the best interests of the children to have supervised contact. The basis for it being supervised was that the children were, or Z at least was, not safe with the pursuer if he had sexually abused Z. The pursuer has not sexually abused Z. Accordingly, there is no obstacle to unsupervised contact by the pursuer with his children. It was averred and admitted on record that the pursuer had a loving relationship with the children. The defender said that the pursuer was a good father and that Z adored her father. It is clear that it is in the best interests of the children that they should have unsupervised contact with the pursuer.

 

[57] Parties were agreed that it would not be necessary for me to make a specific order for contact in terms of the pursuer's first crave or in any other terms. It was agreed that, if the parties could not agree on the nature and extent of unsupervised contact, they would come back to court. Much damage has been done to any trust between the parties and their children. For the benefit of the children the parents must seek to repair that damage.

 

 

Specific issue order

[58] The defender wishes to take the children to Spain for a total of six weeks each year for holidays to see her family. She wants the children to be bilingual. Z is speaking Spanish. The defender wants the children to be aware of Spanish culture, language and family ties. The defender's parents, in their 60s, live in Mostoles, Madrid. The defender has two married sisters there, one of whom has three children aged 4, 2 and 1.

 

[59] The defender said she had no intention of taking the children to live in Spain. It was put to her that she had threatened to do that. She said that the pursuer had said the same about South Africa. They were hurting each other, it was just part of the arguments between them. The defender said she has a job here. It was funded by the Scottish Government for three years until 2011, after which it will be self-funding. She has a house here. There were no decent jobs in Spain, she said. The defender's parents have visited the defender and the children in Edinburgh.

 

[60] It was put to her in cross-examination that, in her reply to Pilar Hermoso (nos. 6/6/1/476 and 5/8/2 of process), she had written that the best thing is going to be to move to Spain. The defender replied that the e-mail did not say that she will be moving to Spain; and she went on to say, "I guess I have to be here".

 

[61] The pursuer said he had serious concerns when Z came back, from her visit on her own to Spain to see her grandparents in 2008, with a urinary tract infection. He wanted clarification that the children would be safe. In the past the defender had threatened to go to Spain and not return.

 

[62] Dr Robson did not pick up from the pursuer that he was against Z being bilingual.

 

[63] In his submissions counsel for the pursuer submitted that the pursuer was keen that the children's Spanish heritage was alive for them. The defender being allowed to take the children out of the United Kingdom was, it was submitted, something that might be considered in the future but that in the circumstances it was too early to contemplate it now. Those circumstances were the unsolicited advice from the Spanish lawyer to use a dirty trick to obtain the jurisdiction of the Spanish courts and, inter alia, get custody of the children together with the allegations by the defender of sexual abuse of Z in 2007 and 2008.

 

[64] A substantial obstacle to the defender being allowed to take the children to Spain is the concern that the defender and the children would not return. In my opinion, in the circumstances of the false allegations against the pursuer and the sown seed of a dirty trick, I think that there is a real and present risk that, if the defender is allowed to take the children on holiday to Spain, she will not return. I do not think that it is in the best interests of the children that contact, and the establishment of unsupervised contact, with their father should be jeopardised by the risk of their being removed to Spain, and the difficulties that that will create. The children have been deprived of a meaningful relationship with their father for 18 months. The welfare of the children is the paramount consideration. It is not better for the children that the order should be made than that it should not. Accordingly, I refuse the defender's second crave for a specific issue order to take the children to Spain for six weeks a year.

 

 

Matters of concern

 

[65] I cannot leave this case without commenting on six matters that emerged from the proof.

 

 

The interviewing of Z

 

[66] Z was interviewed at the first joint investigative interview on 2 October 2008 by DC Johnston and Miss Black. The second joint investigative interview was conducted by Miss Black and PC Susan Purnell on 10 December 2008. Miss Black did most of the questioning at each interview. Before and after the second interview Miss Black carried out direct work with Z. Miss Black said her direct work was carried on without reference to the police, although she thought they knew about it.

 

[67] I was not impressed with the joint investigative interviews. I considered the second to be one of the worst I have seen. Dr Robson considered the interviewing of Z to be worse than the interviewing of the children that led to the Orkney Inquiry in 1991 because what was done here was so deliberate. It alarmed her that all these years later there was such direct questioning of a child because she was not saying what the interviewers wanted to hear. What the interviewers did was against 20 years of guidelines. She was concerned about the driven nature of the interviews in drawing things out of the child and putting things in the child's mind. Dr Tully and Dr Robson were even more critical of the second than the first interview, but the second was not looked at in any detail in the evidence.

 

[68] I consider it necessary to catalogue what is concerning about the interviewing of, and direct work with, Z.

(1) The joint investigative interviews were not mechanically or audio and video recorded. They were recorded in handwriting. I think it is extraordinary that as a matter of course by 2008 joint investigative interviews of children were still not being mechanically recorded in Edinburgh. DC Johnston indicated in evidence that there is only now a pilot programme for video recording. This seemed to be related to the vulnerable witness legislation. Desirability for the video recording of interviews with children about sexual abuse dates back at least to the 1980s. The reason for it, as Dr Tully explained, is that it is helpful for those who have to make something of it. These would include child psychologists who are frequently required to comment on interviews. Sometimes, Dr Tully said, it is the exact words that make the difference, which will not usually be possible with a handwritten note. Sometimes the demeanour of the child or tone of voice, or indeed those of the interviewers, will be important. Dr Robson said that non-verbal language is important. I note that the first interview of Z took place in premises designed for the purpose. There is no excuse for it not being video recorded. Dr Robson described the lack of video recording to be unusual nowadays. Miss Black thought that there should be mechanical recording.

(2) The handwritten notes of the joint investigative interviews were not transcribed. As there was no typed up version, the notes were difficult to decipher. Miss Black had difficulty reading the notes of the first interview, written by DC Johnston, when she was giving evidence. She was not the only person in the courtroom with that difficulty. When DC Johnston gave evidence it was necessary for him to read out loud the whole document so that everyone knew what he had written. Even the length of time of the interview is not recorded.

(3) It was not clear that Miss Black and DC Johnston had all relevant information then available before they conducted the first interview. The defender did not give her statement to DC Johnston until after the interview. Miss Black was not sure whether she was aware at the first interview that Z had been examined by doctors previously in relation to her urinary problem. One of her questions to Z is ambiguous as to whether she was asking Z about that or an examination by a doctor when the defender took Z to the doctor on the morning of 1 October.

(4) Miss Black had no conception of the risk and damage her "direct work" with Z was doing to the investigative process. She was tragically unaware of the dangers of mixing investigative and therapeutic or "direct" work. Miss Black saw nothing wrong with it. She did not think it compromised information from Z at the second investigative interview. She said that the direct work consisted of speaking with Z about bodily boundaries, feelings and changes in the family including the absence of her father and was not about sexual abuse. It included asking Z about parts of the body on a drawing by Miss Black of a girl in a swimsuit and later asking Z to "post" cards of feelings towards different people. Miss Black did not accept that she should not have been doing this direct work. She indicated that if, in the course of such work, a child mentioned abuse when it was not planned for it to happen she had to make a judgment about whether to explore it. That, however, in my opinion, is disingenuous and not how events occurred. It is clear from her case notes, to which I was referred in 5/4/1 of process, that Miss Black was telling Z what her mother had said Z had said and that Z was agreeing with questions put to her by Miss Black about sexual abuse by her father. There was no question of Z having volunteered unsolicited information. At one point Miss Black even suggested in evidence that Z could have "disconfirmed" what was being put to her that her father had done. Dr Tully said that social workers trained in child protection would know better than to do this. He had not come across anything as marked as this. Dr Robson was also critical. She said that it ought not to have happened in that manner. There was no verbatim recording by Miss Black of her direct work. One case note for 15 October 2008 was written up later in the form of a question and answer session (5/4/1/95 reverse side).

(5) The recording in social worker records of what Z is supposed to have said in the first interview is disingenuous. In the standard assessment social work report completed by Miss Black it is stated in box 10 (5/4/1/114) that Z said "she had a secret and she did not want to talk about it". A "secret" in this context can be a critical word in interviews. What Z actually said was that she did not know the secret. In box 11 on the same page it is recorded in the summary for the first interview that "[Z] was unable to make a clear disclosure". In the case note entry about the interview Miss Black has recorded that "[Z] was unable to make a clear disclosure of sexual abuse" (5/4/1/101 reverse side). The truth of the matter was that in the interview Z specifically denied that her father touched her inappropriately. In cross-examination Miss Black accepted that there was nothing in the interview that amounted to a disclosure. In the case conference minute (at 5/4/1/129) Miss Black is recorded by the minute taker as saying that "[Z] had not been clear in the statements and had not been able to relate back the information received from [ND]". In her social background report attached to the case conference minute Miss Black had written (5/4/1/151) that "[Z] did not give a clear account of what Ms [ND] reported" and that "someone" had touched her. The truth of the matter is that Z had in fact been very clear: her father had not touched her. Furthermore she did not say "someone" touched her. She had said "some people" and then "some bad people" had touched her. The note goes on to relate that on two separate occasions Z had said that "somebody" had touched her and had gone on to say that this had been her father at bedtime. The case notes indicate that Z was led into this by Miss Black and the case note of the direct work session of 15 October 2008 (5/4/1/95 reverse) to which I was referred is an example of Miss Black telling Z what her mother said Z had said that the pursuer did and then leading the child to agree.

(6) Miss Black did not have a clear understanding of the purpose of a joint investigative interview. DC Johnston was not asked what his understanding was. Miss Black did begin by saying that the purpose was to investigate the allegation and give Z the opportunity to be listened to, and to find out if there was something to be followed up. Later on she spoke of wanting to check the information she had, as part of her explanation for moving from open to direct questions. In cross-examination, when asked why in the interview she was canvassing the conversation Z had with her mother rather than whether the child had experienced anything, she replied that she was thinking of it in terms of the information they had. "It was the information I was being asked to explore with the child." Later on she said that she did not have any option but to find out what Z made of the allegation. Further on she said that the information she had was a serious allegation that it had happened and she had to check that with Z. She wanted to ask the child about the information they had. The Edinburgh and Lothian Inter-Agency Child Protection Procedures (6/5/1) clearly states at paragraph 9.3 that the main purposes of an investigative interview are to learn the child's account, gather information for a decision about the need for protection and establish whether a crime had been committed. This is included in the Scottish Executive Public Guidance on Interviewing Child Witnesses (5/5/5) at paragraph 13. At paragraph 65 of the latter Guidance it is stated that the interviewer is there mainly to listen to the child. On page 8 it states that the purpose is said to be to gain the child's account of events. The main purpose is to listen to what the child has to say and to allow the child that opportunity, the opportunity to give a free narrative. It is not to interrogate the child about information the interviews think they have.

(7) There was no verbatim report of the rapport stage of the interview. Dr Robson would have expected it. Dr Tully said that the rapport stage does affect the quality of what comes next. In my experience the rapport stage is frequently unrecorded in detail with often no more than a heading "Rapport". Miss Black confirmed that it was common practice not to record the rapport stage verbatim. All we know in this case is that there was a discussion about TV programmes. Miss Black said that DC Johnston and Z spoke about TV programmes which she did not know about. This practice must stop and the rapport stage should be recorded verbatim as with the rest of the interview. The Edinburgh and Lothian Child Protection Procedures (paragraph 9.8) and the Scottish Executive Guidance (paragraph 37) require a full, accurate and verbatim record.

(8) There was no truth test. The Edinburgh and Lothian Procedures at paragraph 9.7 indicate that, with the abolition of the competency test for legal proceedings, there is no reason to conduct a formal test of competence, but there is a requirement to assess the child's understanding. The Scottish Executive Guidance, at paragraph 66, states that the child should be made aware of the importance of giving his or her own true account. In paragraph 71 an example is given of suitable questions to ask. Miss Black said that, with the abolition of the competency test, interviewers did not do a truth and lies test. The Scottish Executive Guidance dropped it, she said; and it was no longer part of their training. She agreed that one must mention the importance of telling the truth. She said she addressed it by saying to children that, if they did not understand, they should say what they have seen and heard and not to worry about getting it right or wrong. Dr Tully said that, because children can be deceptive or guess, it was important that they understood about telling the truth and one usually did a little test. It seems to me that, if this is no longer done, it should be reinstated to the extent mentioned in the Scottish Executive Guidance.

(9) There was inappropriate direct questioning of Z, including leading and closed questions. Miss Black seemed to think that direct questions - that is "introducing material" as she put it - is permissible when open questions are exhausted. She seemed to think that the protocol then allowed the interviewer to proceed to more direct questions. She did not see anything wrong with a closed question or what she called an optionalised question - that is a question suggesting one thing or another. Direct questions were alright, she thought, because even a five year old can say yes or no. DC Johnston said that with young children you may have to ask more direct questions than with an older child. The Scottish Executive Guidance does not, of course, state the matter in this way at all. First of all it states the importance of free narrative from the child. It then warns of the dangers of closed and leading questions. Both of them were unaware of the dangers of asking a five year old direct questions.

(a) Miss Black said that her question, "is the place the doctor looked at where your dad tickles you?", could be construed as a leading question. DC Johnston wondered if it was mildly leading; some people might think it was. Having asked the child if she knows the part of the body where she does a pee pee from, Z says "No". Miss Black then asks, "Is it your bottom?". The child says, "Your bum". Miss Black then asks "Does daddy touch you on the bum?". Z says, "No". Miss Black said that this was a closed question. DC Johnston said it could be perceived to be leading. Dr Robson correctly described this question as extremely leading. In my opinion, it should never have been asked.

(b) Miss Black said to Z, "You've got a really good memory. Shall we have one more go at remembering about what you told mummy?" She said that she was not trying to put pressure on the child. "I can take you home so that you can play with Play Doh if you can remember". Miss Black said that she was trying to signal that the interview was nearly over. She could see that it was a poor question. Dr Tully said that this was a question not to discover but to manipulate the child. Dr Robson described it as a bribe. Dr Tully said that the danger of asking a child to remember is that the child tries to reproduce what went on between her and her mother. It is important that it is not that that the interviewers are seen to be interested in. One has to get the child thinking about the area of interest and not substitute the event - that is remembering the conversation with her mother. Dr Tully said that it was dangerous to ask direct questions. It can bring out an answer that is not true. It focuses on what the interviewer thinks is concerning. Children will take into account what they think is in the mind of the adult asking the question. Dr Tully said that a lot of children of that age (five) do not always understand what they are saying.

(c) After Z said that she could not remember, Miss Black says "it would be really helpful if you could remember". Dr Tully said that this tells the child that what she has said is not good enough. It puts the child under a degree of motivation to produce something. Dr Robson said that this was putting pressure on the child. The child is trying to work out what the agenda is and what the adults want her to say. One should not put pressure on a child of this age.

(d) Miss Black thought that the question, "Is anything happening that makes you a bit sore or sad?" was justifiable. Dr Robson criticised this question because it introduced something that the child had not said; Z had not said she was either sore or sad before that.

(e) Miss Black said that was aware of the large body of research about the suggestability of four and five year olds. Later on she said she did not know about the research of Ceci and Bruck in 1995 on this topic. She then claimed that there was other research about children resisting being led. The suggestibility of five year olds was, she said, open to question. Dr Tully referred to the suggestability research which proved how easy it was for a child of this age to confabulate. Dr Robson said that the susceptibility of young children was now the standard view.

(10) There was no closure phase to the interview. The Scottish Executive Guidance, at paragraph 105, states that this phase is essential, even if the interview has been terminated prematurely. In paragraph 106 it states that, "no child should ever be made to feel that they have failed or disappointed the interviewers". Dr Robson agreed that the purpose was to reassure the child that she was not to blame for not saying anything. She said that this was so particularly having regard to the way this interview ended, with pressure on the child, questioning her memory and failure to recall what she as supposed to have said to her mother. The child would be left feeling negative. In cross-examination Miss Black did not think that the closure phase was essential, and did not know why it was essential. She said that Z had had enough and they just finished off with her. Miss Black said that Z did not appear distressed or worried that she had not said what people were expecting. How, I wonder, could she know that if she did not conduct a closure phase? The next day in evidence Miss Black claimed that there was a closure phase but it was not recorded and that she had discussed things after the interview with DC Johnston. In his evidence DC Johnston indicated that, in the closure phase, with older children the child would ask what was going to happen next and in the case of younger children closure would be with the parent along the lines of "We'll be back in touch". He did say that one aspect of closure was to put the child at ease. When it was put to him that there was no closure noted with Z, he explained that this was because she was increasingly distracted and more or less out of the door; the interview finished abruptly. I think the evidence of Miss Black and DC Johnston just confirms that they conducted no closure phase with Z.

 

[69] Miss Black said that she had had joint investigative interview training for four or five days in 2005. She was not asked about any refresher training. DC Johnston said that he had his initial four day training in 2006 but that he had not had any refresher training. PC Purnell did not give evidence and I do not know what her position was. The Scottish Executive Guidance, at paragraph 17, says that there should be ongoing monitoring, supervision and refresher courses.

 

[70] I am so concerned about the poor and damaging quality of the interviewing, and the direct work done by Miss Black. I will be directing that a copy of this judgment is sent by the sheriff clerk to the Director of Children and Families and to the Chief Constable. In my opinion Miss Black, DC Johnston and PC Purnell should not be permitted to interview children until they have been retrained. In relation to Miss Black I think she should also be removed from any child protection work until she has been retrained.

 

 

Use of cards and drawings

 

[71] Dr Tully described the use by Miss Black of drawings, that is the swimsuit, in her direct work as being as problematic as props and dolls. There is reference to the swimsuit in the case note of the direct work interview on 7 October 2008 at 5/4/1/99. Recent research, said Dr Tully, has shown that if one uses drawings without a suggestive nature, the child will provide his or her own commentary. It helped the skilled witness if one could see what was going on. One would have to consider the drawing itself, what was said and the questions and answers. Miss Black did not keep the drawings used in her investigative direct work. Although this was not a joint investigative interview, Miss Black ought to have followed the advice in paragraph 114 of the Scottish Executive Guidance and kept the drawing.

[72] Dr Tully was also critical of Miss Black's use of cards. In her direct work she used cards for people in Z's life, and gave Z cards with statements on them which Z "posted" to the person she selected for the message. Dr Tully did not know what test Miss Black was using; she ought to have specified it. There was a venerable Bene-Anthony Family Relations Test. Even psychologists took liberties with it and interpreting the results required caution. Because a child posted a feeling on one person here, he or she might just say, "I'll put one, there." A child may not fully understand what he or she is doing. Miss Black said that use of the swimsuit was not part of her training and she did not know where she encountered it.

 

[73] It seems to me that Miss Black should not have been using drawings and cards without understanding how they should be used.

 

 

Child Protection Register

 

[74] Dr Robson said that the information from the first interview would not have justified Z being put on the Child Protection Register. It follows, she said, that there was not sufficient for putting N on the register. Dr Robson went on to say that, from the work that was done, there was no evidence that could be relied upon that the pursuer had abused Z. I think the parents can now expect that both children should be removed from the Child Protection Register.

 

 

Medical examination

 

[75] Dr Robson did not think that the invasive paediatric forensic medical examination on 3 October 2008 to ascertain if there was evidence of abuse of Z was justified on the basis of the first interview the day before. There were no pointers that made it essential. Such an examination was a significant event for a child of that age and Z had been uncomfortable with it. Dr Robson thought that it might have had an effect on her subsequent behaviour.

 

[76] It is clear that Z should not have been subjected to that medical examination.

 

 

 

 

"Disclosure"

 

[77] When an adult alleges that someone assaulted him or her it is said to be an allegation. When a child alleges that someone abused him or her it is said to be a disclosure. Miss Black was right to describe this as an inappropriate term. A "disclosure" implies that it is true. A disclosure in fact means an admission and would be something said by the person committing the abuse, and not by the victim. A statement by a child that he or she has been abused is just an allegation like any other and not a disclosure. The term disclosure should cease to be used.

 

 

Family Mediation Lothian

 

[78] Before the proof began the pursuer sought and was granted an unopposed motion for recovering contact records held by Family Mediation Lothian. For some time Family Mediation Lothian had been supervising contact between the pursuer and the children. As it happened the defender also wanted these records. On 11 February 2010 there was a motion by the pursuer before me in relation to contact because Family Mediation was refusing to supervise contact. Both parties wanted supervised contact to continue. There was a letter from Family Mediation Lothian of 11 February to the court, it having been made aware of the motion. The letter was copied to the parties and their lawyers. It referred to an earlier letter of 4 February, also sent to the court, about the specification of documents and indicted that both parties had been required to agree to accept that confidentiality would be afforded to each parent. Family Mediation Lothian indicated in the second letter that it regarded it as critical for it to maintain a neutral stance. Following service of the specification, Family Mediation Lothian suspended its services to the family, that is suspension of supervised contact, in order to allow the pursuer to consider whether he wished to involve Family Mediation Lothian in the court process (ie. insist on recovery of the contact session notes). The letter mentioned that parties were not prepared to pay for brief factual reports about contact sessions which Family Mediation would produce on payment of a fee.

 

[79] It was not clear to me what I could do other than to confirm the importance of contact and continue the matter for any opposition to the recovery of documents to the beginning of the proof to enable Family Mediation Lothian to appear, if it wished, in relation to the opening of the sealed envelope.

 

[80] At the beginning of the proof counsel for the pursuer indicated that, in order to preserve contact, he no longer sought the documents. Later on in the proof I was informed that, notwithstanding this concession, Family Mediation had decided nonetheless to refuse to be involved in supervised contact. I was asked by both parties to express a view that might be conveyed to Family Mediation Lothian. On the face of it, without having heard from Family Mediation, it looked as if it had taken umbrage. I did not consider that it was in the best interests of the children to withdraw supervision of contact.

 

[81] Dr Robson said in evidence that the withdrawal of its services by Family Mediation Lothian was not child focused and not based on the children's needs. She said that Z would already feel responsible for breaking up the family, and Dr Robson was concerned about the burden on the child. Supervised contact should have continued and it was detrimental to stop it, she said.

 

[82] In view of this comment, I am directing that a copy of this judgment is sent by the sheriff clerk to the Director of Family Mediation Lothian.

 

[83] I understood at the end of the proof that both the pursuer and the defender had been re-interviewed by Family Mediation Lothian and it was hopeful that supervised contact would be restored. I trust that it has; although, as a result of this judgment, it will not be necessary.

 

 

Expenses

 

[84] It was agreed that there would be no expenses due to or by either party.