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England and Wales Family Court Decisions (other Judges)
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Cite as:  EWFC B103
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Case No: ZW16C00313 & ZW16C00501
IN THE FAMILY COURT
(Sitting at Barnet)
Regents Park Road
London N3 1BQ
Thursday, 10 th November 2016
HER HONOUR JUDGE MAYER
B E T W E E N:
LONDON BOROUGH OF BARNET
(3) A,B,C and D
(by their Guardian)
(As approved by the Judge)
MISS K HUDSON (instructed by HB Public Law) appeared on behalf of the local authority.
MR S POLLARD (of Messers Alexander and Partners) appeared on behalf of the respondent mother
MR S GROVE (of Messrs J D Spicer Zeb) appeared on behalf of the respondent father
MISS MERRIAM (of Messrs McCormack Solicitors) appeared on behalf of the Guardian.
4. The applicant Local Authority is the London Borough of Barnet. By an application dated 15 th June 2016 they applied for orders pursuant to s.31 Children Act 1989 in respect of the 3 older children. On 31 st August of this year they applied for similar orders in respect of D. D has never been removed from her mother.
7. Both parents come from Somalia. The father is 35, the mother is 34. The mother came here in 1995, then returned to Somalia, and then came back to the UK in 2003, aged 20. She has been here ever since.
8. The parents married in Somalia in 2008. B was born in the UK in 2009. The father arrived in the UK in 2011, and A was born in July of that year. C was born in September 2012. On 3 rd June 2013, the father was granted indefinite leave to remain in the UK.
9. The parents separated in July-August 2014; this followed, according to the mother, violence and abuse in the home, in front of the children, such abuse including a punch in her mouth causing loosening of a tooth, and rape. On 17 th September the mother was granted an ex-parte injunction; her allegations included threats to kill and the children being terrified. Although not directly relevant to the issues I have to determine, it was dealt with in these proceeding as part of examining the mother's veracity. This time she maintained that the children did not see any violence.
10. A strategy meeting in September 2014 was followed by a MARAC (multi agency risk assessment conference) meeting in November, where the police shared information about the domestic violence. The mother did not return to court to pursue the allegations; the father appeared on his own in February 2015. As I understand it, although the injunction continued, the proceedings came to an end.
12. Whilst there, the parents' respective families became involved to affect reconciliation. The parents apparently reconciled around November-December 2015 and the mother became pregnant straight away. D was born in August 2016.
14. A few days before 28 th March 2016 A told A S, her class teacher, that her willy hurt when she goes to the toilet. It was Ms S's evidence to me that she reported this to the mother, and suggested she goes to the chemist to treat a possible infection.
15. On 28 th March 2016 A told several members of staff at her school that her willy hurt and she mentioned two boys hurting her willy at her sister's house. Other than the father, apparently, everybody in this case knows that A calls her vagina willy. I will deal with the accounts in detail later.
16. On the 31 st March A spoke to M P, a teaching assistant, about her willy hurting, giving a very concerning account. J O, the school's pastoral manager, was informed forthwith, and spoke to the mother at the end of the school day, telling her to take A to her GP. There is a dispute as to the reason given to the mother for taking A to the GP; there is no dispute about the mother telling the GP that A had discomfort in her lower abdomen. A's genitals were neither mentioned nor examined.
17. Between the very end of March and the 10 th June A complained, from time to time, about her willy hurting, without giving any detail. On 10 th June 2016 she gave a very specific account about her mummy cutting her willy. In between these two dates, on 21 st April 2016, A was asked what she did over the Easter holidays. She said her mother told her not to tell the teachers anything, because it was "private". Again, I deal with the detail below.
18. Consequent upon her account on the 10 th June 2016, A was taken to see Dr H, a Consultant Paediatrician, at Barnet General hospital, for a child protection medical. Dr H considered that A was missing her labia majora. She considered that the physical finding, together with the account A gave her before the examination, indicated FGM. All three children were taken into police protection.
19. On 11 th June the mother was interviewed under caution. She refused to answer any questions, but provided a statement claiming that A becomes itchy in her genital area when she eats bananas and she washes her "down there". She informed the police that she did not know where the father was, nor was she able to give a contact number for him. This was at a time when he was apparently staying in the family home 2-3 nights a week.
20. On the 13 th June Kenny Harry, the then allocated social worker, visited the mother's home, to discuss section 20 accommodation of A. Several adults, members of the extended family, were present. There is a dispute between the parents and the social worker as to whether the father identified himself as the father on that occasion. Although the mother signed a section 20 agreement, the father did not.
22. On the 20 th June 2016 the social worker and the Children's Guardian visited the boys, who were placed with a maternal aunt. B said he saw private parts of girls being cut on the computer, at home. His verbatim account is repeated in the Guardian's report. Forensic examination of the family computer did not reveal any material relevant to cutting vaginas or any other type of FGM, although revealed access to adult pornography.
24. On the 4 th July 2016 A was seen by Dr Hodes and Professor Creighton. This was organised by the police. The two doctors disagreed with Dr H's diagnosis, and concluded that A's labia majora were intact, and other than a small shortening of the clitoral hood, which could be a normal variant, did not necessarily identify physical evidence of FGM. This, they explained, did not exclude the possibility of type 4 FGM, as this can heal without leaving any physical signs. Dr H indicated, by a letter of the 15 th July, that she defers to the expertise of Dr Hodes and Professor Creighton, and accepted their views.
26. On the 28 th July 2016 I set the matter down for a fact finding hearing. In light of B's account of watching a video of cutting female genitalia, I gave permission for Dr A, a consultant child and adolescent psychiatrist, to consider A's accounts. He reported on 6 th September 2016.
27. A has made some short statements to her foster carer, some of which related to "private" and some to "cutting". The last such statement was made on the 20 th September. It was as a result of this I decided to ask Dr A, to interview her. On the 30 th September she was seen and interviewed by him. On the 1 st October Dr A filed a further report. He was satisfied that something serious had happened to A but could not say what.
28. The hearing started on the 17 th October. I heard evidence over three days, from two social workers, from Professor Creighton, Dr H, from four members of the school staff, from DC J R, Child Protection officer, from L G, A's foster carer, from Dr A and from the parents. The evidence lasted three days; day four was dedicated to submissions. I give judgment today, the 10 th November.
29. The leading family case on FGM is the case of Re B and G (Children) (no 2)  1 FLR 905. An interagency statement was published by the World Health Organization (WHO) and others in 2008. For the purposes of this judgment, I deal only with Type IV, which is defined as ": Unclassified: All harmful procedures to the female genitalia for non-medical purposes, for example, pricking, piercing, incising, scraping and cauterization." I am satisfied that if A has undergone FGM, it would have been type IV.
30. I am equally satisfied that type IV FGM will very often not fall within the ambit of criminal law, for that requires mutilation. For the avoidance of doubt, I reiterate the President's comment about mutilation:
"It will be seen that for the purposes of the criminal law what is prohibited is to "excise, infibulate or otherwise mutilate" the "whole or any part" of the "labia majora, labia minora or clitoris." This brings within the ambit of the criminal law all forms of FGM of WHO Types I, II and III (including, it may be noted Type Ia). But WHO Type IV comes within the ambit of the criminal law only if it involves "mutilation". The word "mutilation" is not further elaborated or defined in the statute, so I turn to the dictionary. The Oxford English Dictionary defines "mutilation" as meaning "the action of mutilating a person or animal; the severing or maiming of a limb or bodily organ", "mutilate" being defined as meaning "To deprive (a person or animal) of the use of a limb or bodily organ, by dismemberment or otherwise; to cut off or destroy (a limb or organ); to wound severely, inflict violent or disfiguring injury on."
32. I am also satisfied that according to the President's judgment no form of FGM can be characterised as trivial or unimportant, having regard not merely to it's purely physical characteristics, but also to its associated trauma, and potential for psychological consequences.
33. I turn to deal with the principles applying to fact finding hearings. The law to be applied to fact finding hearings is conveniently summarised by Mr Justice Baker in Devon County Council v EB  EWHC 968 (Fam) at paragraphs 53-64 inclusive, which I summarise further below.
34. The burden of proof lies with the maker of allegations; in care cases, it is usually the Local Authority. It is the Local Authority that brings the proceedings and identifies the findings they invite the court to make. Therefore, the burden of proving the allegations rest with them.
35. The standard of proof is the balance of probabilities. If the Local Authority proves on the balance of probabilities that A has undergone FGM, this court will treat that fact as established and all future decisions concerning her future will be based on that finding. Equally, if the Local Authority fails to prove this, the court will disregard that application completely.
37. When considering cases of suspected physical harm, the court must take into account all the evidence and furthermore consider each piece of evidence in context of all the other evidence. The court " invariably surveys a wide canvas". Evidence cannot be evaluated and assessed in separate compartments. A judge in these difficult cases must have regard to the relevance of each piece of evidence to the other evidence and to exercise an overview of the totality of the evidence so as to come to the conclusion of whether the case put forward by the Local Authority has been made out to the appropriate standard of proof.
38. Expert evidence is only one part of the evidence in cases of abuse. Whilst appropriate attention must be paid to the opinion of medical experts, those opinions must be considered in the context of all the other evidence. It is important to remember that the roles of the court and the expert are distinct and it is the court that is in the position to weigh up the expert evidence against its findings on the other evidence. The judge must always remember that he or she is the person who makes the final decision. A factual decision must be based on all available materials, i.e. be judged in context and not just upon medical or scientific materials, no matter how cogent they may seem in in isolation.
39. The evidence of the parents is of the utmost importance. It is essential that the court forms a clear assessment of their credibility and reliability. They must have the fullest opportunity to take part in the hearing and the court is likely to place considerable weight on the evidence and the impression it forms of them.
40. It is not uncommon for witnesses in these cases to tell lies in the course of the investigation and the hearing. The court must be careful to bear in mind that a witness may lie for various reasons, such as shame, misplaced loyalty, panic, fear, distress and the fact that the witness has lied about some matters does not mean that he or she has lied about everything.
41. Finally, when seeking to identify the perpetrators of injuries, or abuse, the test of whether a particular person is in the pool of possible perpetrators is whether there is likelihood or a real possibility that he or she was the perpetrator.
42. The principal issue in this case is whether A has undergone a procedure which involved damage, however minimal, to her genitalia. I do not stop to consider whether, if she has, this would have been for purposes other than FGM. Nobody sought to suggest that she has undergone any such procedure for medical purposes.
43. Although there have been, and perhaps are, other concerns about this family, they are not relevant to the threshold in this case. The Local Authority's schedule of allegations consists of 10 pages; other than the allegations in respect of B and his account to the Children's Guardian, the allegations deal with the detail of A's accounts and all go to the principal issue as above.
45. The parents deny this. They say they have no idea why A has been making the statements she has made over time to different people. To the Children's Guardian they said, on the 21 st June 2016, that A was lying and that the school made it up. The father in particular said he did not believe A said anything of what was reported. They do not now dispute that A made the statements as reported.
46. The parents do not know why B made a statement about watching, on a computer, woman's genitalia being cut. The mother says she found him watching still photographs of male and female genitalia, apparently on a site the address of which he got from a friend at school. This apparently happened once.
Structure of hearing and judgment.
47. Although all those who filed statements of A's accounts were not challenged in terms of the truthfulness or accuracy of their accounts, I ordered them to attend for oral evidence. Included were four members of staff from A's school, DC J R, Kenny Henry, Dr H and L G, the foster carer.
52. For the avoidance of doubt, I am entirely satisfied that at all relevant times A referred to her private part as her "willy". In this judgment I refer to her private part as willy, or vagina (being aware that it is the colloquial name of a female private part and not the anatomical part thereof) or genitalia.
53. AS is A's class teacher this year. She started teaching her in September 2015. She has been a teacher for 6 years. She signed one statement in these proceedings, signed a section 9 statement for the police on 15 th June 2016, and gave oral evidence. She told me that A was a chirpy and friendly child, who loved talking about her home life with staff, particularly about her brothers. She is creative, but academically delayed. She attended speech and language sessions with three other pupils. Although she may go off on a tangent, she can be brought back with the right questions.
54. A has spoken to her about her willy hurting some days, possible a week, before JP told her of her own conversation with A, which took place on the 28 th March 2016. Ms S told me that she then spoke to the mother on two separate occasions on two days running, told her of A's accounts and suggested it's probably a bladder infection and that she speak to a pharmacist. She told me that the mother was rather dismissive, but she, Ms S, was clear that the mother understood the concern. I am satisfied that this was before any mention of boys hurting A's willy.
55. On 28 th March 2016 A spoke to JP, a teaching assistant. Ms JP signed one statement in these proceedings and gave oral evidence. A told her that her willy hurt, because two grown up boys came to the house and kicked her and her sister's willy. She said that mummy was angry. When speaking of her willy, she pointed to her vagina. Some 45 minutes later A told JP that her willy hurts when she goes to the toilet. She said she could go to the medical room and get a plaster.
57. She was cross examined by Mr Pollard, who suggested to her that although A said willy she may have meant her lower abdomen. Ms P was clear that A pointed to her vagina when she talked about her willy, on both occasions. She wondered why A would consider a plaster in the context of her willy hurting when she goes to the toilet, but did not question her further.
58. On the 28 th March, A also spoke to Ms S about her willy hurting. She told her that the big boys hurt her willy at her sister's house. She clutched her crotch through her tights. Ms S made a note of this conversation.
59. I pause so as to deal with the mother's explanation about the two boys. She described an incident at her maternal sister's house, where A was playing with her two cousins who are 8 and 9. They pushed her and she had fallen over. A was not kicked. I accept that there was an incident in the course of the children playing when as a result of a fall, or push, or a kick, A was hurt in her genital area. This was, according to the mother, possibly on the weekend of 25 th March, or the weekend before.
60. I return to A's accounts. On the 21 st April, after the Easter holiday, a small group of children were discussing what they did during the holiday. When Ms S asked A what she did, A said "mummy says don't tell the teachers nothing - it's private." A seemed introverted and did not make eye contact.
61. Later on the same day, Ms S sat next to A when she was by herself and asked her what she meant by saying that she had to be private. A said "I've got to be private because my daddy works on the computers and mummy and my big brother will go to jail and be locked up and no one can look after me". She emphasised the word locked. Ms S asked why would they go to jail, and A replied "because I need to be private and I can't be private but I am really trying".
63. When cross examined by Mr Pollard, it was put to her that the mother had no recollection of the conversations in March about taking A to the pharmacy. Ms S was adamant that she spoke to the mother not once but twice. She said she could not have been any clearer. I accept her evidence.
64. M P is a teaching assistant, who has known A since September of last year. She signed one statement in these proceedings and also signed a section 9 statement on 15 th June. She gave oral evidence.
65. She described A as a dreamy child, friendly and always happy to talk, especially when the topic interests her. Her language is a little delayed but she can get her point across, despite her choice of words and sentence structure being sometimes young for her age.
67. On the 31 st March Ms M P made a verbatim note, exhibited at C16c. To the question "what hurts", A said "My willy. It's red. It's inside my willy. It popped and wobbled and wobbled and splash and it came out. Lots and lots. It comes harder at night, my willy, and blood came. It's hurting me alllll day", with emphasis on the all.
70. On the 29 th March, she received JP's account. She subsequently received two more accounts of "hurting willy", including the account about the two boys. She telephoned MASH (multi-agency safeguarding hub) and was advised to speak to the mother about this. She told me that it was not her who spoke to the mother, but rather J B, a learning mentor. It was then that the mother gave the account of the two boys incident.
71. On 31 st March she received Ms M P's account, what I call the "wobbled wobbled" account. Her concerns were much heightened. On that day, she contacted the MASH team again, and was advised again to speak to the mother. She told me that she explained to the mother at the end of that day that A was still complaining about her willy. She told the mother to take A to the GP. She explained that MASH were involved and that it was their request that A goes to see her GP. The mother said she would not be able to get an emergency appointment that day, and would take A the following day. Consequently, an emergency appointment was organised by social services for 5.30 that afternoon, and the mother was to inform Ms O the following day what the doctor said.
72. JO was cross examined about what precisely she told the mother. She confirmed to me that she made it abundantly clear to the mother that A was complaining about pain in her willy. When speaking to the mother, she definitely used the word "willy", although she may have also said private parts. She had no doubt that the mother understood why she had to take A to the doctor. Lower abdomen, tummy, or anything other than willy or private part were not mentioned, nor pointed to. I accept her evidence.
73. Dr S, A's GP, filed a short statement dated 28 th July, making it clear that no mention was made by the mother of A's hurt or discomfort in her genital area. No conversation about itching in her genital area took place then or indeed ever, the only itch discussed, as evident from A's GP notes, was threadworm in April 2014. The mother told the GP about the accident with the two boys and that A complained at school, although not to her, about pain in her pelvic region. At no stage did she mention pain in her vaginal area or that the school had sought advice from MASH. The mother informed Ms O the following day that she took A to the doctor and nothing was found to be wrong with her. Nobody sought to check the account the mother gave the GP.
74. A complained about her willy hurting on and off during the next few weeks. On the 10 th June, A came to sit next to Ms M P. She was holding her hands between her legs and jiggling about, and when asked whether she wanted to go to the toilet, she replied in the negative; Ms M P asked whether her willy was hurting, and she said "my willy doesn't hurt anymore. Mummy cut it and now it's better". She was asked what she cut it with, and A said "she cut it with scissors and I was so brave at night time. And then she painted it brown".
75. The school notified social services and the police, and Kenny Harry, the social worker, and DCs R and F from CAIT arrived at the school in the afternoon of the 10 th June. Mr Harry signed one statement, on the 15 th June. He gave brief evidence about a discreet matter; I deal with it below. His statement, which was not challenged, states the following:
"On 10 th June 2016, at 15:00 a Joint Investigation with two officers from the Child Abuse and Investigation Team (CAIT) and a Barnet Children Services Social Worker too place whereby A was interviewed at her primary school. A confirmed and disclosed further details. "mummy cutting my 'willy' (vagina) with a scissor"; "mummy was as quick as she could be"; "mummy talked to me about doing it, about when I grow up it would be dangerous, I was not scared about scissors"; "I was brave, it did hurt"; "dad also cut me and mummy gave me a wet tissue which I gently, gently patted my 'willy' to stop the pain"; "Mummy took me to the doctor because my her (sic)'willy' was itching"; "I was brave at night"; "mummy painted my 'willy' brown and I went to bed when I woke up my willy felt better"; "mummy fixed it, it's better now it (willy) does work and not hurting me"; "my younger brother was there he laughed at times; father was there when mummy used the scissor." Both Officers and the Social Worker concluded that A's disclosure suggested FGM.
76. DC JR visited the school together with DC F. DC F made notes on a CRIS report, to be found at page 9 at section I. The notes were made contemporaneously. DC R confirmed the accuracy of the notes. His section 9 stands as a statement in these proceedings and is dated 30 th June 2016. He gave oral evidence.
77. He confirmed the account in Mr Harry's statement, but explained that A went on tangents more than once. He showed a scissor motion with two fingers when he described A's account of her mummy cutting her willy with scissors. He said she was not reluctant to talk.
78. The next account was given to Dr H, on the 10 th June. She is a consultant paediatrician at Barnet General Hospital, with 20 year experience. She signed one witness statement in these proceedings, dated 30 th June, and prepared an initial child protection report dated 10 th June 2016. She gave oral evidence.
79. She examined A together with a Paediatric Registrar Dr Y. She accepted, immediately after A was seen by Dr Hodes and Professor Creighton, that her diagnosis is incorrect, and accepted that Dr Hodes (to whom she referred the case that evening) and Professor Creighton are in a superior position to give a diagnosis of A. The reason I wanted to hear from her was the seemingly clear account of her conversation with A, an account put to Professor Creighton and Dr A.
80. She was told in outline, before she met A, of A's statements at school. She told me that she conducted the conversation, before she examined A. I considered this important, since it cannot be argued that Dr H influenced the conversation by her diagnosis of A's genitalia. For the sake of completeness, I repeat it here:
"Dr H, 'what has made you feel sore?'
A, 'Mummy cut me, mummy cut my willy. I was brave. I was happy'
Dr H, 'Did it hurt?
Dr H, 'Did you cry?'
Dr H, 'what did she do after?'
A, 'she washed my face and put a plaster on my willy, and then took the plaster off. She painted my willy with brown paint.'
Dr H, 'when did she do it?'
A, 'a long time ago'
A was asked whether it hurt when she did a wee, in which she replied 'yes, but not always. The hurting has stopped'. A said she was able to go to the toilet for 'a wee, and a poo'. "
82. Finally, the account that A gave to her foster carer, L G, who filed two statements. She described A as settling very easily, not asking about her mother even when she was poorly, some days after her arrival. She established an easy relationship with the foster carer, who described her as friendly, sometimes over-friendly. Having watched A for nearly an hour on the ABE interview, I accept that she is friendly and a lovely little girl.
83. On the 27 th June she took A to Barnet police station for a pre ABE interview. After her meeting with the officers, A said to her quite spontaneously, "Mummy said if I talk about private, her and B will go to jail. I did say it, but it was a mistake when I said it." The foster carer told her to always tell the truth, and then she'll never get into trouble.
84. On the 16 th August A made another comment. She asked whether Twinkle, the family cat, was private. She then said "Mummy and B will get into trouble if I talk about private". She could not say what private was. The foster carer explained that "willy" was private and nobody was allowed to touch it.
85. On the 18 th September, when on the toilet, A said to her that her willy was burning. She was reassured that the burning sensation will pass. On the 20 th September, the foster carer asked her, again when she was on the toilet, whether her willy was still burning. She said it did not, and added "sometimes people take off your knickers and trousers and open your legs and cut and there's a bit of blood". When asked whether it hurt, she said not really. Her foster carer told her that in this country nobody is allowed to cut other people's willies because you need it. That was the end of the conversation.
86. On the way back from her interview with Dr A, during which she did not disclose any information in respect of cutting her willy, A asked the foster carer why she had to see "Dr A". When told that he might have wanted to know what happened to her willy, she said "That man cut my willy locked my mouth". When asked whether with his hand, she said no, with sellotape.
87. Before I move on to deal with the medical evidence, I need to deal with B's account to the Guardian. She saw him on the 20 th June 2016. He told her that he lives with both his parents, younger sister and brother and a big sister L, who is 24. He said she lived with Y, and looked confused that the Guardian did not know who she was. He could tell the difference between the time the father did not live with the family and now, when he sleeps in their home.
88. He was asked whether he uses the computer and whether he uses it inappropriately. He said he uses it for computer games. He said that when he last saw L he had watched a "video of a girl's private parts being cut" on the computer with his family and that it was "scary". He said that there was "a red thing coming out". He said that A was there and laughing, he mimicked her laughing. He said that L and her boyfriend Y decided the family should watch the video and that his mother and A were present. I pause to say that I am satisfied that the children's reference to familial relationships is not accurate; it is clear from other references to family members. I have no idea who B was referring to, and no comprehensive enquiry of other members of the family has taken place to try and identify these people.
The medical evidence.
90. The medical evidence is undisputed. Professor Creighton filed a two-page report, dated 11 th July 2016, and gave oral evidence. Although the report is signed by her alone, she carried out the examination with Dr Hodes and the conclusions therein are joint.
91. Her status as an expert on the topic of FGM is accepted by everybody in this case. She counts, amongst her other achievements, being a founder member of the Female Genital Mutilation National Clinical Group. In his judgment in the case of Re B and G (above), the President said this: "Her evidence, both written and oral, was clear and measured; it did not change; it was delivered with authority; it carried conviction". I accept his assessment of her as both as an expert and a witness.
92. She conducted the examination of A's genitalia together with Dr Hodes, a Consultant Community Paediatrician, who also specialises in FGM. They conducted the examination at the behest of the police, as part of child protection procedure. Although she was not formally appointed as an expert in this case I treated her as one.
93. Prior to her oral evidence, Dr Creighton explained, in a letter, that it is not uncommon for there to be no visible injury to confirm that FGM has taken place. The methods used by those who subscribe to this cultural belief have been adapted because of increasing international focus on the practice and the possibility of criminal prosecution. Girls are being "done'" much younger than previously and often they are cut very slightly or pricked in the genital area to draw blood.
"There were no physical signs which confirm recent or historic FGM. There was no evidence of any recent trauma or scarring to the genitals and FGM has not been performed within the last three months. The slightly shortened clitoral hood may be consistent with normal congenital variation or with removal of a small piece of the clitoral hood as in type 1 FGM. In addition we are unable to exclude type 4 FGM which may consist of a small cut or prick as this can heal without leave any physical signs. These examination findings do not exclude the possibility that A underwent a type 1 or type 4 FGM which has healed without trace. This may have been performed during A's visit to Addis Ababa (they were told that A went to Addis Ababa, whereas she in fact went to Somalia) in 2015 and the genitalia have healed without any resulting identifiable scar tissue or other abnormality".
95. In her oral evidence, she was, in my judgment, very careful not to stray outside her area of expertise. She has nevertheless made some observations which I consider important. I summarise them below:
96. i. Type IV FGM will often not leave any physical evidence at all. It has a vast range of procedures - cutting, pricking, nicking, burning and others. In the course of seeing 88 girls, since 2014, who were referred with suspected FGM, 42 have undergone FGM. Some parents come from countries such as Indonesia and Malaysia, with certificates in support of the procedure having been done, and admit it readily, even though there are no physical signs; in their countries, it is not a criminal offence. I bear in mind that in type 4 FGM, where there are no physical signs, is unlikely to trigger criminal prosecution here either, due to the mutilation element missing.
ii. The slightly shortened clitoral hood is more likely to be a normal variant than evidence of cutting; if there had been cutting, a scar would have been likely to have been visible. Altogether, more damage would have been expected having regard to A's description. I accept this evidence as support for a finding that on the balance of probabilities it is unlikely that A's clitoral hood has been shortened, and concentrate on type IV FGM.
iii. Type IV FGM is often inferred and diagnosed based on accounts of parents or children, including siblings of girls who undergo the procedure.
iv. According to UNICEFF, about 50% of all FGM procedures are carried out on girls between birth and 5 years of age.
v Although there are little comparative data, it would appear that type IV FGM is increasingly common.
vi. Although in Somalia type III used to be more prevalent, Somalia appears to be moving to type 4, because it is harder to detect.
vii. Professor Creighton has not come across a case where a mother performed FGM on her own child. She has not encountered, in accounts she has heard, brown paint or sellotape on mouth.
viii. Having been directed to the conversation between Dr H and A, her comment was that on the basis of this account, she would consider that type IV FGM may have taken place. When asked whether a child of 4 could give an account like this if she did not experience it, she said she was unable to comment on the veracity, although the physical description would make her think that it was suggestive of FGM; indeed it would fit with an account of FGM.
ix. She was not sure whether it was the drawing of blood, or the cut, which were the important cultural element in type IV FGM.
x. Most procedures are carried out outside the UK. Of 5000 cases of FGM disclosed to health providers in the UK between July 2015-July 2017 (80% by pregnant women) only 18 were described as having taken place in the UK, and of those 10 were genital piercing in adults.
xi. In terms of risk factors, Professor Creighton identified the mother having undergone FGM as one. Another would be travel abroad to a country where FGM is practiced, especially if a family from an FGM practising community return to their country of origin. Neither should be looked at in isolation.
xi. Finally, she would not expect a girl who had FGM, even if it was type IV FGM, to have another FGM, but there is no conclusive research about this.
99. "My daughter A experiences itchiness around her vagina and anus after eating bananas. I usually treat this by washing the area. I have never cut A with scissors or any other instrument or caused injury to her vagina".
101. The mother denied throughout her evidence that she either permitted A to be subjected to FGM or carried it out herself. She had absolutely no explanation for the accounts her daughter gave, quite consistently, to several people. According to the social worker she did not seem in anyway anxious to discover why her daughter was making the comments she made; her reaction to the social worker asking her whether she was worried/puzzled was "she is just a child, she does not know what she is talking about".
102. In respect of the GP visit on 31 st March 2016, she first said, in her statement of the 6 th July, that a teacher told her to take A for an urgent appointment since she was complaining of pain in her lower stomach. In the next statement, dated 21st July, she explained that she did not understand being told that pain in A's willy was the reason for the visit to the GP.
103. In her oral evidence, she talked a lot about A's itching' in her genitalia. This was also the only explanation she offered to the police. I am satisfied that when she went to see Dr S, she did not mention itching in the vaginal area, even though she says that this is what occurred to her when she heard the account of pain in the willy, because, she said, this is what A suffers from time to time. She never mentioned allergy to bananas either to the doctors or the school (who specifically ask about allergies in the entrance questionnaire), and the only itch in A's medical notes was from threadworm in 2014, for which she got oral medication which cured the condition. In my judgment, the mother prevaricated when she told me about the itching. I don't accept that itching was a reoccurring problem for A (there is no report of itching in 4.5 months in foster care), or that she was allergic to bananas, the mother having brought some to contact and giving her a part of one. I do not accept it as a plausible explanation for A's accounts.
104. Having denied A S's account of telling her to go to a pharmacy, the mother also denied that she was told expressly by J O to take A to the GP because she complained about her willy hurting. She kept repeating that she was told about lower stomach, and gesticulated to her lower stomach when repeating the teacher's gestures. I have considered the evidence about her knowledge of the English language. I am satisfied that none of the teachers mentioned any linguistic difficulties about communication, nor were they asked about it. I accept the evidence of J O, especially about "willy" being mentioned, and find that the mother is not telling the truth about this.
105. She was also cross examined about who was present on the 13 th June, when Mr Harry, the social worker, attended the home and a number of family members were there. She said that to the question of where was the father, the father put his hand up and identified himself. This is also the father's evidence; I deal with it shortly. In her response to threshold, of the 16 th October, she agreed with the proposition that the father did not identify himself to the social worker. She told me that she said it in error.
106. Kenny Harry, who no longer works for this local authority, gave evidence by telephone. I am satisfied that his oral evidence in respect of the 13 th June was clear. He told me that the father was there at the time of the visit on the 13 th June. Mr Harry did not know him. Not only did the father not identify himself, when he, Mr Harry, asked where was the father, no member of the family either turned around to him nor pointed him out, something I would have expected to have happened. Mr Harry recognised him at court, on the 16 th June 2016, as one of the people in the home on the 13 th, came over to him and introduced himself. I accept Mr Harry's evidence. I find that the mother lied about this.
107. The mother could not explain B's comments either. Her account of finding B watching a photo of private areas of a man and women is vague. In any event, it does not begin to explain what B said. It also conflicts with the father's account. He said that B was watching a video of men and women.
109. I found his evidence vague in some parts and untrue in others. His account about identifying himself, on the 13 th June, when Kenny Harry visited the home, is untenable. The piece of paper he produced, with a time and place for his appointment with the social worker, does not support his case. I have already said that his account was not supported by anybody's actions at the time; it is not supported by any evidence of the other 9 people there, although the father of course does not have to prove anything. Mr Harry told me that had the father been there, he would have asked him to sign the section 20 agreement, as a person with PR. I accept this evidence. I have already said that the mother changed her account since the 16 th October 2016. I find the father, just like the mother, lied about this.
110. There are a number of conflicting accounts between him and the mother. I do not deal with the allegations of domestic violence, which the mother reiterated but the father denied in their totality. He gives a totally different version in respect of the mother's allegations, accusing her of making them all up. Both cannot be telling the truth.
111. The most extraordinary part of the father's evidence was his account that he did not know what willy meant in A's vocabulary. When cross examined, he said that when he wrote in his statement that A said her willy was hurting, he did not think she meant her genitalia. He said he did not understand that word. He thought it was between her genitals and her tummy. He went on to say that when A told him her willy hurt he thought it was from her fall downstairs. No fall downstairs was mentioned by anybody else.
112. I suggested that a father who lived in a family home for 3 days a week in the past 8 months would know what his daughter would call her private parts. He accepted that the boys called their private parts willy, but said A did not have a willy. He confused the version of who told him first that A hurt her willy - the mother or A. He said that they both spoke Somali and used the word "below".
113. I have considered the father's replies carefully. His English is good enough; he insisted on speaking English in the witness box, although in the event did not. I am satisfied that he knew very well what A meant by the word "willy" when he put it in his statement. If he had said "below" to the interpreter, this would not have been translated as willy.
114. His account, of saying that the mother told him B watched a video when the mother made it clear she saw him watching a still picture is also confusing and conflicts with the mother's account. He tried to explain it by saying that when his wife said "watching", he assumed it was video. He was asked whether he had at any stage broached the statement B made to the Children's Guardian with him. It was suggested that he must have been very worried about this, especially in light of what he knew by then A had said. I find it highly implausible that this couple did not discuss their children watching what appears to have been pornographic material and did not clear with B whether it was a still, several stills, a video, and why he spoke of cutting. I do not believe the father's evidence on this and come to the conclusion that neither his nor the mother's version about B's activity can explain what he said to the Guardian.
115. I deal finally with the evidence of Dr A. In the light of B's comment, I thought that an experienced child and adolescent psychologist would be able to assist in determining whether A too merely observed a film/video/stills rather than experienced something done to her genitalia.
116. Dr A filed his first report on the 6 th September. The report was somewhat cursory in outlining A's accounts, omitting, for example, her very clear account to Dr H, and the account of Kenny Harry. Dr A also raised a concern that the account of A, aged 4, did not have a beginning, middle and end, commenting later that children of her age do not often get a clear chronology, unless the event was memorable. It was, of course, the case that all those to whom A gave her account quite correctly did not develop it with her, and the ABE interview did not elicit any information. I was also under the impression that Dr A was heavily influenced by the lack of physical evidence when he concluded that it is not possible to say what A is talking about. He said that re-interviewing A may shed more light on what happened to A, but warned that this may increase A's interest in that part of her body and shed no further light on the issues.
117. A did not show any raised interest in her genitalia since she has been in foster care. However, on 20 th September, she told L G, in the context of a burning sensation when urinating, that sometimes people take off your knickers and trousers and open your legs and cut and there's a bit of blood. When asked whether it hurt, she said not really. It seemed to me that A still remembers something to do with cutting genitalia, and I canvassed with the lawyers, at the IRH, whether A should be seen by Dr A, with the intention of clarifying aspects of A's accounts. This was supported by the Local Authority and the Guardian and the parents did not object.
118. A was seen by Dr A on 30 th September, in a rather long interview (58 minutes). In my view, with which Dr A agreed, she did not want to be there and did not want to answer questions; she appears to have drifted in to the realm of fantasy and frankly did not make much sense when being asked about anything concerning cutting willies. The only aspect of the interview which stood out to Dr A in terms of her behaviour was when she was asked by him whether her mummy's willy was cut. A apparently put her hands behind her back, stretched her neck forcefully, maintained that position to the extent that both he and her foster carer became concerned and asked her to stop. She did not answer the question.
119. Dr A filed a further report, dated 1 st October 2016, in which he also answered questions asked of him by the parties. He was no further forward with advising whether A was more likely to have experienced rather than seen/heard something happening to her willy.
120. In his oral evidence, he moved quite a way. He explained that he was concerned about A's accounts, which were highly unusual. He explained that the repetition increased the concerns. He acknowledged that he did not consider the account to Dr H in his first report, and that it was clearly significant. He explained that he had a general concern that something sinister may have been done to this child, although he could not say what and when and by whom. This, in fact, has not been asked of him.
121. He accepted that an account without physical signs would be true of many, if not most cases of child sexual abuse. He accepted that A's accounts could give rise to concerns about FGM. He also accepted that the references to keeping it private and mummy or daddy going to jail is something he recognised from disclosures of children who have been found to have been sexually abused. Finally, and importantly, he accepted that A was more likely to have experienced what she described rather than watched it on a video; she has never once, in all her accounts, referred to having watched it. His final conclusion was that A's persistent account of her mother cutting her and then making her feel better is likely to come from something experienced rather than seen, unless she has severe developmental delay, which he did not think she did, and neither do I, having seen the ABE interview and heard Ms M P's evidence about her progress since in care.
122. I have considered the expert evidence, A's and B's accounts, the veracity of the parents, the behaviour of the mother and the additional risk factors identified by Professor Creighton. They all form part of the wider canvas, the basis on of which I have to make findings.
123. The absence of physical evidence of FGM is no evidence that type IV FGM did not take place. By way of analogy, in cases of child sexual abuse, physical evidence is absent from a great deal of cases. It makes the evidential basis more difficult, but by no means impossible, to resolve.
124. Before I turn to deal with evidence which supports FGM, I deal briefly with the incident of the 25 th March with the two boys. It is noteworthy that A was able to distinguish her hurt in her willy consequent upon the injury from this accident (which I accept happened) and the accounts she gave about cutting. Once she started complaining about hurt in her willy associated with blood, on the 31 st March, she never mentioned the incident with the two boys again.
125. Analysing A's accounts is not straight forward, but, in my judgment, there are themes which run as a thread through most. Firstly, all her comments to her teachers were spontaneous. Secondly, most of her spontaneous accounts have been triggered by a degree of discomfort, often by going to the toilet, possibly by burning sensation when urinating. Thirdly, the motif of her willy being cut by her mother appears in most of the spontaneous accounts. The accounts are descriptive, include colour (blood), sensation (pain), feeling (brave, happy, crying) and contain significant detail about soothing, even if some of it is not completely understood even by Professor Creighton: for example the brown paint.
126. With awareness of the danger of cherry picking, I nevertheless select a number of comments A made, such as "Mummy was as quick as she could be, mummy talked to me about doing it, about when I grow up it would be dangerous, I was brave, it hurt, mummy cut my willy, I was brave, I was happy. It hurt and I cried".
127. It is difficult for me to deal with comments implicating the father. Examples in A's accounts are "dad also cut me and mummy gave me a wet tissue which I gently, gently patted my willy to stop the pain", "my younger brother was there he laughed at times, father was there when mum used the scissors". Without any help of the parents, it is impossible for me to know whether the father was present or not; his evidence was that he did not go to Somalia in the summer of 2015, and this was not pursued in cross examination. It is, of course, possible that all this happened in the UK. The issue whether type IV FGM is performed in the UK more frequently than types 1-3 due to the limited impact of it has not been raised with Professor Creighton.
128. No witness other than J P, in her evidence about the 28 th March, suggested that A was distressed when giving her accounts. Nevertheless, A's accounts are, in my judgment, extraordinary to be given by a 4 year old.
129. Considering the accounts in his oral evidence, perhaps in some more detail than he did in his reports, Dr A came to the conclusion that it is more likely that she experienced what she described rather than described something she saw or listened to.
130. I consider B's comment to the Guardian to be significant; I don't know why he said what he said, since he was not ABE interviewed and nobody spoke to him about his account any further. However, his account of female genitalia being cut and A talking about her willy being cut at around the same time is unlikely to be a complete coincidence. As I said, I reject the conflicting accounts the parents have given as a plausible explanation for his account.
131. I have considered the parents lies about the 13 th June. In my judgment, the lies are more likely to relate to the concerns both parents have about social services' involvement with their family, because of the mother's very serious domestic violence allegations in 2014. I find that the mother, in particular, tried to distance herself from the father for the purposes of social services. The mother, for example, is recorded to have told a midwife at the hospital on the 26 th May 2016 that she has a new husband in Somalia and the baby was his; she is said to have told the school in April 2016 that she was separated from the father, although she was some 4-5 months pregnant. She denied the accounts in both these records, but these accounts chime with her, and the father's behaviour on the 13 th June. She told the police on the 11 th June that she did not know where the father was and did not have a telephone number for him; this was clearly a lie, as her evidence is that he had been staying there 2-3 nights a week; all this is more likely to be connected with domestic violence than with FGM. I also find that the mother was inconsistent about the children not witnessing domestic violence; this is contrary to what she said in 2014. I don't know when she told the untruth, but both cannot be correct.
132. The inference I draw from these lies is that the parents do lie when they are worried about the truth. I have come to the conclusion that they are not trustworthy and honest witnesses, but not only on the basis of their lies on the 13 th June 2016.
133. The fact that neither parent has an explanation for A's accounts is, in my judgment, highly significant. I consider it almost impossible for the parents, and particularly the mother, not to try and work out why her daughter was coming out with an account which according to Professor Creighton suggests FGM. The mother would be familiar with FGM, having come from a culture which practices it and having been cut herself. She has never expressed to the social worker, or anybody else as far as I am aware, concern about her daughter's welfare, although she told me that she and the family are very concerned. She has not asked anybody to try and establish with A why she has been saying what she said. She told the Guardian on the 16 th June that A may be lying, and suggested that the teaching staff may have asked her things for her to give such answers.
134. Having found that the mother deliberately deceived Dr S about the reason for A's visit, I ask myself the obvious question - why would she do this? Similarly, why would A, on the 21 st April, after the Easter vacation, say what she said about being private and not telling teachers anything? The theme of being private was repeated to LG, the foster carer. In my view, A felt bad about not being able to be private. Whether she knew what private was, something Dr A could have checked with her but did not, she knew not to talk to teachers about things at home.
135. In my judgment, it is likely that the mother, and possibly the father, having discovered on the 31 st March that A was talking about a painful willy, and the school insisting that she is taken to the GP on MASH advice, have told A not to discuss family matters at school. Even if she did not understand the full meaning of the word "private", in my judgment she understood it in the context of not talking to the teachers about her painful willy. Additionally, a child of her age, in my judgment, would not talk in this context about prison for her mother and brother. She did try to be private until the 10 June; it is just possible that her discomfort when urinating on that day overrode the need to be private.
136. I am conscious that all the recorded accounts may be subject to errors, although I am satisfied that most of the teachers have supported them by contemporaneous notes. It is something I bear in mind and urge caution on myself. I have taken into account that she did not make any disclosures either in her ABE interview or in her interview with Dr A. The ABE interview, in my judgment, was not conducted with the greatest competence, and in respect of the interview with Dr A, some four months after the original accounts, A asked why she had to talk to him. I have come to the conclusion, on balance, that her unwillingness to talk at interviews is outweighed by the spontaneity of her accounts to her teachers, to the social worker on the 13 th June, to Dr H and to her foster carer.
137. Dr A said that children's accounts tend to drift away with time, and the fact that A's account to him verged, in part, on fantasy, did not negate for him the importance of her original accounts. Interestingly, the only aspect that really concerned him, and the foster carer, was her reaction to the question whether her mother's willy has been cut. It was the only time when A changed her demeanour and appeared distressed.
138. I take into account that her mother has undergone FGM, and that she visited Somalia for 8 weeks in the summer of 2015. These are 2 risk factors, identified by Professor Creighton. On their own, they would be meaningless; as part of the wider canvass, they fit in with the rest of my analysis.
139. It may be that on the basis of A's accounts only I might, I emphasise might, have hesitated about making positive findings of FGM. The behaviour of the parents which I consider to be part of the wider canvass, together with the evidence of Dr A, permit me to make the finding below on the balance of probability.
140. I have come to the conclusion that A has undergone a procedure to her genitalia which is more likely than not to be type 4 FGM. I cannot say who did it, and what exactly was done. It could be a little cut, or a nick, or a prick; none have left a mark, but some blood was involved. It is possible that if her mother did not do it, she was there, and was involved in soothing her. I cannot say whether the father was involved in the procedure. I am satisfied that he knows that it has taken place.
144. Other than the FGM, A has been described by virtually everybody who knows her as a friendly, happy child, with good and neat school attendance. She was described as academically somewhat delayed, something that on its own did not cause undue concern; Ms MP described her as coming on in leaps and bounds in recent months. Reports from contact with the mother are very good. There is no evidence before me that A is not loved by her parents. I accept, at this stage, what B said about A being in care. There is currently no evidence to suggest that he thinks that she lied about anything other than a burn (which I have not dealt with and accept, on balance, was an accident).
145. I expect the local authority to file and serve a comprehensive care plan in respect of A no later than 22 nd November. I will list this case for a directions hearing on the 28 th November. I order the parents to file short statements in response to my judgment no later than mid-day on the 25 th November and all parties to file position statements no later than mid-day on 26 th November.