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You are here: BAILII >> Databases >> England and Wales High Court (Family Division) Decisions >> Leeds City Council v Mrs YX [2008] EWHC 802 (Fam) (14 March 2008) URL: https://www.bailii.org/ew/cases/EWHC/Fam/2008/802.html Cite as: [2008] EWHC 802 (Fam) |
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FAMILY DIVISION
Leeds District Registry
Oxford Row Leeds |
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B e f o r e :
____________________
| LEEDS CITY COUNCIL |
(Applicants) |
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| -and- |
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| Mrs YX |
(First Respondent) |
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| & |
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| Mr ZX |
(Second Respondent) |
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| (ASSESSMENT OF SEXUAL ABUSE) |
____________________
From the tape transcription of
J.L. Harpham Limited
Official Court Reporters and Tape Transcribers
55 Queen Street, Sheffield S1 2DX
For the Applicants: MRS. S. BRADLEY QC MRS L. ARMITAGE
For the First Respondent: MISS E. HAMILTON QC MISS C. WORSLEY
For the Second Respondent: MR C. HEATON QC MISS L. McCALLUM
For the Children's Guardian: MISS E. NORMAN
____________________
Crown Copyright ©
MR JUSTICE HOLMAN:
THE HISTORY
"I reviewed A with her parents on 20 December 2005. A looked well and has gained 800 grams since 24 November 2005 and is much better. She even had an infection during this period. She has had no further symptoms of bleeding or indeed any other genital complaints, and I did not attempt to examine her today.
I have arranged to review her again in March 2006, and again said to the parents that I don't know what the basis of her symptoms are, and so it is difficult at this stage to know whether things may recur or not. The parents seem reasonably happy with this, and I have said that if there are any concerns between now and the next appointment they can always get in touch.
Finally, the ultrasound which was performed on 3 December 2005 was normal, and it included examination of her uterus, bladder and kidneys."
"Her parents asked if there could be some medical problem causing the bleeding. I said I thought it would be a very unusual presentation for a bleeding disorder as she had had no other unusual bleeding or bruising. I said I didn't feel that kind of investigation was really justified. They did mention that sometimes the skin on her hands cracked and it bled slightly, but I said that I thought this was a different problem."
"A was extremely co-operative and fairly passive. The skin of the genitalia was healthy and the labia was normal. There was no lichen sclerosis. I noted, however, that the hymenal opening was gaping with her thighs abducted. Her hymenal opening was heart shaped. Again I noted the roll thickened edge with a wavy margin. There was no discharge. Examination of her anus in the left lateral position revealed that it was lax. There was slow dilatation, with mucosa prolapsing into the rectum. There was some peri-anal reddening, with veins not distended. There was no unusual bleeding."
"Clearly the continuation of her symptoms [viz. the recurrence of blood] is worrying. The genital and anal findings are supportive of genital and anal penetration. Comparing the findings with those on 9 November there does appear to have been a significant change in the anal findings. On that occasion the anus was reported as normal, and the photographs would tend to support this. There doesn't appear to have been a significant change in the genital findings. On 20 October the anus did not appear to be lax or dilating in the way which I found today.
I discussed this with the parents and said that I feel that the time has come for me to involve Social Services because I am concerned about the possibility that A may have been sexually abused.
A seems to me to be quite a vulnerable child. She maintains that nothing has happened to her. The reasons for her failing to gain weight are not altogether clear. I have arranged a further appointment at the beginning of May."
"I also inspected her genitalia, which again revealed a slightly uneven edged irregular gaping opening, which was basically circular and reasonable thickness of hymen. The opening was again gaping. I examined her anus, which was abnormally lax, reddened, posterior veins were distended. Mucosa was seen prolapsing, my opinion was that this was a significantly abnormal anus. I discussed my findings with A and her parents. They didn't make any response, and I said I would be making a report to Social Services and the GP."
"When I was examining her and wondering what the bruises represented ZX said, 'She has not been jamming a pencil into her legs, has she?' It seems to me that this is a possibility that needs to be considered very carefully. The thighs and upper arms are common sites for self inflicted injury, and the absence of other lesions elsewhere on the body would mitigate against infection or a clotting disorder. It would also be unusual for such a rash to be painful, which is how A described these bruises. Self inflicted injury is an important indicator of abuse in a child. I have indicated to the parents that the marks should disappear, and I would like to see her again next week if they don't."
"I have spoken to Social Services indicating my continuing concerns that the clinical picture here is consistent with ongoing sexual abuse in this child ... This is a very worrying situation. I feel that A is a very vulnerable child, and I am concerned about the recent assault. A has not disclosed anything to the social workers, and has really not said anything to me in understanding the basis of the worrying findings. The bruising to the front of the thighs is unusual."
The reference to "the recent assault" is a reference to a reported recent assault on A by another child, in which A's lip was cut. In my view, it is irrelevant to this case.
"The parents again asked me about a second opinion, and I said this should be obtained through the GP, who could approach an appropriate doctor. I didn't like to become involved personally, but if the GP was unsure which doctors might be able to undertake this kind of examination I could suggest some possible names. The parents continue to maintain that A is saying nothing, and also explored another possibility of looking at her medical records.
I have arranged a further appointment for 18 December 2006."
"Examination of her genitalia revealed the hymen was gaping, and appeared symmetrical, with a smooth edge, and there was no discharge, just mild reddening around the genital area. The anus showed normal tone, there was no reflex anal dilatation, no fissure, no laxity, and the only finding was some reddening 1+. I considered that these represented healing signs. The reason for the change is not at all apparent, and the parents made no suggestions."
"These are always difficult situations, where physical signs associated with sexual abuse are fluctuating, and where there is no disclosure, and hence no identified perpetrator. The presumption always is that any perpetrator is somebody who is close to the child and is in regular contact. I note that a review conference is to be held on 9 January 2007 to review placement of the children on the Child Protection Register. It is clearly difficult to judge the ongoing risk, but it will be very difficult with the information we have at the moment not to think that A was at continuing risk of further sexual abuse. I have made a further appointment for 8 March 2007."
THE SECOND OPINION. DR SKELTON
"When I first saw these my immediate thought was that she had deliberately inflicted injury to her legs, and I understand that she has disclosed such ... I would accept the explanation that she had stabbed herself with a pencil. I think these marks are compatible with this."
Heger
said she could see stool, and I myself could see to what Professor
Heger
was referring. When Dr Crawford later gave oral evidence it became clear that she happens to have viewed more than one disc. In one disc she can, and in another disc she cannot, discern stool. The relevance in turn of stool is that if there is stool present the anus may, in the opinion of some experts, tend to dilate or open more readily than if there is not.)
"On examination, general examination was unremarkable ... A video colposcopy was done. Her anus showed dilatation to 1 - 1.5 cms. repeatedly. The edge was very craggy and irregular, and there were veins at about 6 o'clock and 9 o'clock. Looking back over Dr Hobbs's slides, they were similar to the previous appearances. Her vagina was again similar, was quite gaping and red, and thin. I had noted that this was thinned on the right. However, this is the first time I have used the video colposcope, I need to check on the side. A does not show signs of puberty."
"A is a nine year old on whom I have been asked to do a second opinion. She first saw me about two years ago, having fallen off a wall. I examined her on the ward and there were no obvious signs of sexual abuse, but signs compatible with a fall ... Dr Hobbs found in December 2006 that the anal dilatation had improved. However, my examination today shows the signs seen previously [viz. on 13 September 2006]. A does not appear to have any clinical signs or history of any other cause for this anal dilatation. Namely, she is not severely constipated or has any neuromuscular weakness. Taken in conjunction with the episodes of bleeding, in my opinion the most likely explanation for this whole picture is that A has been sexually abused chronically, over a long period, both anally and probably vaginally ... The disappearance of the signs in December, and reappearance now, is extremely concerning, and strongly suggests ongoing abuse. I feel this child is not at all protected at present."
"Finally, the marks on her legs are extremely worrying. In the absence of any medical disorder, and these are not characteristic of any medical disorder, I think they are more likely to be self inflicted injury. When taken together with the ano-genital signs, this makes the picture much more concerning. This sort of self inflicted injury suggests a very disturbed child. Self inflicted injury is often seen in children who are being abused. I think A is at extremely great risk of ongoing abuse and further psychological disturbance. I am not sure whether she has had a psychological assessment, but I would strongly suggest one."
REMOVAL OF THE CHILDREN AND THE PROCEEDINGS
Astrid
Heger
in California. A fresh hearing date was fixed for 28 November 2007, this time with eight days allowed. In the light of the later report from Professor
Heger,
it was then considered that the case should be transferred to the High Court, and also that yet further dermatological evidence should be obtained, so the present two week hearing came to be fixed. The delay seems unconscionable but, with hindsight, it has been a price worth paying in order to obtain the exhaustive and wide ranging evidence which is now available. Any fact finding hearing in August 2007 would almost inevitably have concluded that A had been sexually abused, and the further evidence which has been obtained since November has been very important indeed.
DR CRAWFORD
"On one occasion A was examined because of strange bruising. This is described in the report prepared by Dr Hobbs on that day. There are a series of small bruises just on the front of the legs, described as varying in size from about 1 mm. up to about 3 mm. across. On the imaging, the bruises all appear circular. They are described as tender, and were considered to be self inflicted. Certainly this is an odd distribution of bruising, and it is difficult to think of any other cause than self inflicted injury. It is of concern when a child does self harm, as this can be an indication of emotional distress."
"I have elected to describe the ano-genital findings in separate sections, however they occurred together. In summary:
(1) The hymen did not appear entirely normal in any of the examinations, although none of the signs could be said to confirm sexual abuse. "
"(2) On three separate examinations abnormal anal findings were seen in the absence of evidence of constipation, inflammatory bowel disease or neurological disorder. The likely cause is sexual abuse with penetration of the anus, although the signs alone would not be confirmatory evidence.
(3) Self inflicted bruising, which appeared to be because of the marks seen September 2006 is worrying as a sign of emotional upset.
(4) There were other minor worrying features, such as loss of appetite, an area of hair loss, and episodes of nightmares and not sleeping.
(5) It is this constellation of symptoms and signs that is highly suggestive that sexual abuse has occurred."
"On gently parting the buttocks the anus appeared normal, with regular folds and no anal dilatation. When the buttocks were parted further there was minor anal dilatation, indicating some anal laxity."
In her oral evidence Dr Crawford made clear that she did apply a lot of traction to the buttocks, a lot more than she would usually use. At one stage she used the word "excessive". She said that she did so in order to see if there was any degree of laxity. There was no reflex anal dilatation at all in August 2007. Dr Crawford compared her own observation with those in the images of earlier examinations, including that by Dr Skelton, and concluded, at bundle page C.62,
"Anal signs had improved considerably from the examination performed by Dr Skelton in March, and the anus has returned to normal. On 16 August A had no sign that could be considered confirmatory of sexual abuse."
"It is likely that A has been sexually abused. Although the signs found in the genitalia are minor and would not reach criteria to support the diagnosis of sexual abuse, they are worrying. A has anal signs that are highly suggestive of sexual abuse."
PROFESSOR
HEGER
Astrid
Heppenstall
Heger.
She is an American paediatrician working in California. She is a Professor of Clinical Paediatrics at the University of Southern California, and also the executive director of a clinic offering services for victims of physical and sexual abuse. She has specialised in this field for 28 years. Her clinic sees about 12,000 child patients a year, of which at least 6,000 are for suspected abuse, including sexual abuse. She said that she personally has examined between 30,000 and 40,000 children for suspected abuse during her career.
Heger
has been instructed as an expert witness in English proceedings for suspected sexual abuse. It may be wondered why it is necessary to engage an expert witness from so far away. It had the undesirable effect in this case that her oral evidence was given via video link, which I found far less than ideal. It would have been preferable to have both Professor
Heger
and Dr Hobbs (if not also Dr Skelton and Dr Crawford) all in the courtroom together so that they and I could all simultaneously study given images, and I could receive their respective comments upon them.
Heger
lacked objectivity. Mrs. Bradley said that, "Professor
Heger
is undoubtedly eminent and highly experienced, and has access to huge amounts of data which is drawn from individual clinical practice of her own and not just academic literature." However, Mrs. Bradley submitted that, "The integrity of the evidence of Professor
Heger
is in question", and submitted in general terms that she is someone whom parents seek to instruct in cases such as this because she is known or believed to be sympathetic to parents and partisan in her opinions. These submissions were based on two aspects in particular of the evidence of Professor
Heger.
First, what was described as her "retreat" from a suggestion in her written report that the blood in A's underpants had, or may have, resulted from the breakdown of small labial adhesions.
Heger
clearly said, on page C.93, that in images taken on 13 September 2006 "there appears to be a labial adhesion of the labia minora posteriorly." She said, "It is easier to see what I believe to be a labial adhesion at 6 o'clock of the posterior fourchette", in an image taken on 18.12.06 later identified as image 003.JPG on bundle page J.31. She was referring to the slightly whiter or lighter coloured line which is indeed visible at 6 o'clock, as she said. By the stage of her report at the top of bundle page C.94 she was referring to "the labial adhesion" in a way that implied its definite presence. In the light of later dermatological evidence, in particular that of Dr Yell, Professor
Heger
has now accepted that what she was referring to is not the residue of a labial adhesion. Mrs. Bradley submitted, in effect, that Professor
Heger
had deliberately put the weight of her experience and reputation behind a firm suggestion of labial adhesions, which she, Professor
Heger,
must have known from the outset was speculative, if not spurious.
Heger
expressed herself at the end of her oral evidence. Unwittingly, I gave her the opportunity to do so. As she was giving her evidence via video link from California, with only a partial view of the courtroom on her screen, I invited the parents (who were rather lost in the sea of people in the long and narrow courtroom) to stand up and make themselves conspicuous, so Professor
Heger
could clearly see the parents to whose case her evidence undoubtedly gave much support. This did then lead Professor
Heger
to express some comments to them to the effect that she hoped they would get their children back, and how children should always be in their own home if possible.
Heger.
In my view, however, these very strong criticisms need to be seen in context. I agree that Professor
Heger
gave more weight and firmness in her written report to the suggestion of labial adhesions than any of the appearances in the images warranted, but her "retreat" showed an appropriate response to the more specialist evidence of the dermatologist, Dr Yell, as it emerged. Her oral evidence was given under circumstances of considerable personal pressure upon Professor
Heger.
On one day of the hearing she had effectively been up most of the night in California listening in to oral evidence given here during our day. On the final day of her own evidence (which, for logistical reasons, had to be given in two tranches) she began giving evidence at 2 p.m. English time, but 6 a.m. Californian time, by which time she had had, of course, to get up and travel some distance in to her work place. Her evidence was at times characterised by impatience and a briskness of manner, but her impatience was a consequence of, not the cause of, her own firm opinion that all the images are within the range of normality, and her briskness of manner probably reflects a generally brisk and dynamic personality. Her comments to the parents were a reflection of her own informality and of the conclusion that she had certainly already reached that the images do not indicate sexual abuse.
Heger
has a dogma, it is the dogma that doctors should be conservative (her term) and not dogmatic in the diagnosis of sexual abuse. In this she echoes numerous recent comments of our Court of Appeal warning about "... the possible dangers of an over-dogmatic expert approach" and that "... what may be unexplained today may be perfectly well understood tomorrow. Until then any tendency to dogmatise should be met with an answering challenge." (R. v. Canning at paragraph [22].)
Heger
in this case is not discredited for lack of objectivity or integrity. It provides a balanced alternative view from a witness of very great experience, with a refreshing and complete independence. It does suffer the limitation that Professor
Heger
has not personally seen or examined A at any stage; but, with that qualification, it is worthy of no less weight than the views of Drs Hobbs, Skelton and Crawford.
Heger
reviewed the images, including the video recording of the examination by Dr Skelton on 21 March 2007, and concluded,
"In reviewing the photo documentation I find no significant, diagnostic finding of child sexual abuse."
"There is no history from this child. We continue to believe and teach that history is the most important component of any evaluation for possible abuse ... In this particular case none of the findings described or documented are diagnostic of sexual abuse, therefore without a history that diagnosis cannot or should not be made."
"The anal examinations seem to focus on the extent of the dilatation, on the irregularity of the opening, and, in one instance, on the presence of veins. Research into normal anal anatomy in children reports that reflex anal dilatation occurs frequently in children selected for non-abuse; venous distention occurs in almost all children if they are in a knee/chest position for even a short period of time, and that the pectinate line is normally irregular, causing that distortion of the anal opening. I believe that the medical examiners in this case have relied heavily on 'reflex anal dilatation' as diagnostic of sexual abuse. This is a common finding (up to over 49%) in children selected for non-abuse. There is no research comparing children who report anal penetration with those who are selected for non-abuse that supports the use of reflex anal dilatation as a sensitive or specific finding for sexual abuse."
THE DERMATOLOGISTS. DR CLARK AND DR YELL
Heger
led to the instruction of two further experts, both consultant dermatologists. Dr Sheila Clark is a consultant dermatologist based in Leeds, who was asked to examine A and report specifically on the rash or bruises observed and photographed in September 2006. On 1 October 2007, when Dr Clark was taking a history from A and her parents, A spontaneously said that on the day of that rash she and her class had been slapping their thighs over an appreciable period, in time with the music during a music lesson. Dr Clark observed in her report, now at bundle page C.84, that, "A's parents, while A recalled this incident, appeared to have no previous knowledge of it." Subsequent enquiries made by Dr Clark with the school revealed that in music class at about that time A and the other children had indeed been slapping their thighs to several songs as part of a lesson.
"In my opinion the history, clinical photographs taken at the time of the skin changes, together with A's history of atopic dermatitis/eczema, and the dermographism, with associated pinpoint purpuric changes noted on examination on 1.10.07, would be most in keeping with local redness, possibly with an element of dermographism/wheal and flare response, with associated capillary leakage/purpura. This could have occurred after repeating slapping of A's thighs as reported in her music lesson."
"On one date from the images supplied to me, she had some minor peri-anal erosions, which would be in keeping with minor peri-anal fissures, which could be a possible explanation for a small amount of blood being found in the underwear (depending on the quantity)."
THE RCPCH NEW GUIDANCE
"Recognition that a child has been sexually abused has been likened to completing a jigsaw whereby the individual pieces of information need to be put together before the full picture can emerge. This metaphor is particularly apt when it comes to interpreting the significance of a single physical sign of sexual abuse, which is just one part of the diagnostic jigsaw."
Heger,
on the other hand, strongly suggests the mathematical approach that 0 plus 0 plus 0 still equals 0. Whilst that may be mathematically true, it is, in my view, dangerous and equally mistaken to adopt so mathematical an approach. Professor
Heger
said during her oral evidence, "To me if one finding does not support a diagnosis, I credit that finding as zero." I cannot and do not accept that at all. In a case like this, individual pieces of information cannot be viewed in isolation. To say that a given piece of information standing alone is not probative of anything, does not necessarily mean that it has a value of zero. Each piece of information does need to be weighed and assessed in the context of all the other pieces of information.
SUMMARY OF THE ORAL MEDICAL EVIDENCE
Heger
and Dr Yell. By the conclusion of his oral evidence Dr Hobbs said that the observed state of the genitalia in all the examinations and photographs was within the range of normal. I observe that that represents disagreement with the conclusion of Dr Harty in relation to her examinations, and merely serves to underline how subjective assessment is in this field.
Heger
remained firmly of the view that all the images of the genitalia are normal. She said that, in her view, nothing in the genitalia even raises a suspicion of sexual abuse, and she would not have any index of suspicion at all.
Heger
said that cragginess or irregularity (rather than a smooth round hole) is a normal finding of no significance at all.
Heger
stressed the clear appearance of tenting on images such as those in March 2006, at J.19, 20 and 21, and in September 2006, at J.25 to 27. "Tenting" is the stretched skin around the anus which is caused by the examiner pulling apart the buttocks so as to obtain a view of the anus. The essence of the dispute is that if the examiner himself pulls the buttocks apart too firmly (i.e. with too much traction) that very process may open the anus and create the appearance of dilation or laxity. When Dr Crawford conducted her examination on 16 August 2007 she did, as she said, deliberately apply excessive or undue traction, but she considered the anus to be normal. The images actually recorded of her examination, at bundle J.41 and, in particular, J.42 (image 012.JPG) are remarkably similar to the images in particular at bundle page J.25 and 26 of the examination performed by Dr Hobbs in September 2006, when he concluded that the anus was abnormal. There are similar appearances of tenting, and a very similar shape to the anus. In contrast, there is no sign of any tenting at all in the images of the anus on 18 December 2006, at J.33 to J.35, upon which date Dr Hobbs considered the anus to be normal.
"Reflex anal dilatation has been described in children who allege anal abuse and sexual abuse. It has been described in a higher proportion of children who allege anal abuse than in those who allege sexual abuse. There is a paucity of data on the prevalence of reflex anal dilatation in children selected for non-abuse. However, in one study of children selected for non-abuse, it was noted in 5%. The use of the term 'anal gaping' by some authors may reflect what others describe as reflex anal dilatation or anal laxity.
There is insufficient evidence to determine the significance of laxity or reduced anal tone in relation to sexual abuse. It has been described in sexually abused children, but there are no studies of anal laxity in children selected for non-abuse."
Heger,
are concerned by the reports of the episodes of blood in the pants. Professor
Heger
said that to her "the one thing that is concerning is the blood in the underwear". Her initial hypothesis or evidence that there were or may have been labial adhesions has now been withdrawn. As I understand it, however, all the paediatricians defer to, or accept the evidence, of Dr Yell that if the amount of blood was small it may have resulted from eczema related erosions on the anus.
THE EVIDENCE OF THE PARENTS
THE CHILDREN
CONCLUSIONS AND REASONS
Heger
that, "We walk a very dangerous line if we only believe children when they disclose abuse, but not when they deny abuse."
Heger,
a nought or zero. On the jigsaw metaphor, it is a piece which does not belong to this jigsaw at all.
Heger
herself said, "The one thing that is concerning is the blood in the underwear." Whilst it may have been the result of small erosions, it may also have been the result of abuse. But it certainly is not diagnostic of abuse.
Heger as outweighing or negating the opinions, in particular, of Dr Hobbs and Dr Skelton, who each personally examined A and considered that they respectively observed abnormality. (When Dr Crawford examined her she observed normality).
CLOSING COMMENTS