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|Neutral Citation Number:  EWHC 802 (Fam)
IN THE HIGH COURT OF JUSTICE
Leeds District Registry
|The Combined Court
|14th March 2008
B e f o r e :
THE HONOURABLE MR JUSTICE HOLMAN
| LEEDS CITY COUNCIL
|(ASSESSMENT OF SEXUAL ABUSE)
Transcribed from the Palantype Notes of
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
HTML VERSION OF ANONYMISED UDGMENTJ
Crown Copyright ©
MR JUSTICE HOLMAN:
- I have been very grateful to all four advocates, very well supported by their juniors and instructing solicitors, for their help during this perplexing case. I also thank the parents, Mr and Mrs. X, for their patience, courtesy and good humour during what must have been a particularly distressing hearing for them.
- I will call Mrs. YX "the mother", and Mr ZX "the father".
- The mother is in her early thirties. Before she had children she worked. Now she is, in her term, a housewife. The father is in his early thirties. He is in full time work. They live in a small house, which they own. It is obvious that their home is well run, well maintained, and a source of pleasure and justified pride both to them and to their children. The children described to me how their father, assisted by their mother, had partitioned the first floor bedroom to make a separate room for each child, of which the children are fond and proud.
- The parents met and started going out while they were still in their teens. They later married. Their son, B, is now aged 11. Their daughter, A, is now aged 10. The father said that they had what everyone wants, one of each, and it was pretty much perfect. Although the mother has suffered some mild episodes of depression in the past, for which she has on occasions been prescribed, and taken, antidepressants, there was nothing at all about this family to attract the slightest attention, worry or concern. All the indications were, and are, that the parents and children were a well functioning, happy and close knit family, in which the children thrived and performed well at school, save that at one stage A was the victim of some bullying at school.
- In August 2005 A was pushed, or fell, off a wall during play with friends. There is now no suggestion that it was other than a typical childhood accident during normal play, but she had some bleeding in her external genital area, and her parents, who are very attentive to their children, took her to A&E. The contemporary notes of the registrar, Dr A. J. Downes, are now at bundle pages D.256 to 259. A full account of falling off the wall was given to the doctor by both the parents and A. She had a small laceration in her labia with some bruising, and other minor bruises and grazes. The registrar considered that the "injury seems to be related to fall off wall", and A was permitted to return home.
- The parents agreed to her being examined the following morning by a consultant paediatrician, Dr Ruth Skelton. At that examination Dr Skelton noted, now at bundle page D.259, that A gave a "clear history" as previously given to Dr Downes. The labia was sore, but the laceration was external only. Dr Skelton examined A frog-legged with a bright light. Her hymen, genitalia and anus were all recorded as normal. The recorded impression of Dr Skelton was that the injury was accidental, with no internal damage, and no follow up was required.
- I am quite satisfied that that whole episode, which A still well recalls, was entirely accidental. It has no relevance at all to the subsequent concern as to sexual abuse, save this. Unusually, and fortuitously because of the accident, A's anus and genitalia were examined by a specialist paediatrician in August 2005 and were then normal.
- The routine in the family was for the children to change into their pyjamas after school, and their mother changed and washed their underwear every day. On Monday 17 October 2005, after A had taken off her underpants, her mother saw a small patch of what she thought was blood in them. She showed them at once to the father. They decided to take A at once to A&E. They took the pants with them, but unfortunately the examining doctor did not make any record of the extent or appearance of the bloodstain. There is now no available evidence, save what the parents each say. They have consistently used words like "slight", "tiny", "a small amount". At paragraph 4 of his written statement made on 15 May 2007, now at bundle page B.12, the father said it was "a small circle less than an inch". In her oral evidence the mother said it was a small amount, about the size of a 5p piece. It did, however, stain through to the outside of the pants.
- Arrangements were made for A to be examined by a more expert paediatrician on Thursday 20 October 2005. Meanwhile, on Wednesday 19 October, the mother saw another similar small bloodstain in A's pants. Again she showed this to the father. When they attended for the examination on 20 October the parents took both pairs of pants with them. Once again there is, unfortunately, no medical record of the extent or appearance of the stains. The pants were handed back to the mother who, very reasonably and understandably, then washed them, and they are no longer available.
- A was examined on 20 October 2005 by a registrar in community paediatrics, Dr Sinead Harty. Her report is now at bundle pages C.1 to C.3. A was "a little thin for her height. Her general examination was normal, but she had a number of bruises on her body ..." In the opinion of Dr Harty her "hymen was abnormal. It was gaping with separation of her legs, and the hymen itself had a smooth rolled edge. There were no specific tears in the hymen. Anal examination was normal."
- Dr Harty considered that "this unexplained vaginal bleeding is very worrying." Pausing there, it is to be noted that Dr Harty was assuming the bleeding to be "vaginal", but does not say why.
- Her report continued, "Although there are no diagnostic signs of sexual abuse, the presence of a rolled edge to the hymen is compatible with repeated trauma." Dr Harty said she had "outlined our concerns to A's mother." (The father had had to leave to collect B from football training).
- Dr Harty arranged to see A for review on 9 November 2005. Dr Harty had examined A by means by of a colposcope, and a series of very clear still photographs were taken, now at bundle pages J.1 to J.9.
- At the review appointment on 9 November both parents again attended. Dr Harty again examined A by colposcope and took still photographs, now at bundle pages J.10 to J.13. In her notes, now at bundle page D.236, Dr Harty recorded that the hymen had a rolled edge, and was thinner on the right than on the left. Although Dr Harty clearly examined the anus (see photographs on J.12 and J.13) there is no record, so far as I am aware, of her impression of it. I presume that if she had considered that the anus was abnormal she would have recorded that fact and reported it in her later report to the GP, now at bundle page C.5.
- The notes record at bundle page D.237 that there was a conversation with the parents in relation to the hymen, and in her letter to the GP dated 15 November 2005 (now at bundle page C.5) Dr Harty wrote, "I have explained my finding to A's parents. Her parents were clearly concerned that the issue of sexual abuse has been raised."
- For her part, the mother said in oral evidence that she does not recall that Dr Harty raised the issue of sexual abuse at the examinations on either 20 October or 9 November 2005. But it seems that something was said about the care being given to A that led her, A, to become worried that she might be taken into care. After the appointment on 9 November A became anxious and unhappy, and off her food. The worries were also communicated to B (perhaps by A herself) because one morning B (at that time aged about nine and a half) told his parents in distress that he thought he and A might "have had sex". Although in paragraph 5 of his much later statement dated 15 May 2007 (now at bundle page B.13) the father attributed this event to the morning of 9 November itself, it seems clear that that date is wrong, and the contemporary note of Dr Hobbs (now at bundle page D.241) attributes it to 11 November, i.e. two days after the meeting with Dr Harty.
- I do not propose to make any more detailed reference to the evidence on this episode. The evidence comes entirely from the parents, and they are quite satisfied, and I am quite satisfied, that B and A had not in fact "had sex" with each other. They were merely playing playfully and appropriately, and fully clad in pyjamas. I have deliberately raised and explored during the course of the hearing whether, if A has been penetrated or abused, B might have been responsible (whether digitally or with some implement such as a pencil). However, I am now quite sure, and now find and record to the point of being sure, that B has never touched or interfered inappropriately with his sister. If anyone has abused her, it is not B.
- Because of their concerns about A, the parents asked for an urgent further consultation. Two notes by Dr Harty, each dated 23.11.2005, now at bundle page D.239, are revealing. First, she records that on 23/11 she spoke to A's teacher to enquire about any recent changes in her behaviour or toilet habits. Dr Harty records that the school had received a letter from the parents saying that A had passed blood, and that they, the parents, wanted to be informed if this occurred again. The significance is that this appears to be the act of caring, concerned, but wholly innocent parents. It seems improbable that an abusing parent would positively alert the school to be on the lookout for blood in the underclothes.
- Secondly, the note records, "Telephone call from Mrs. YX this morning requesting that A be seen again quickly. No further bleeding, but loss of appetite again, and worried that she will be taken into care because of the question I was asking about her. Mum feels she is very unhappy and not sure what to do."
- So on 24 November 2005 both parents took A to a joint consultation with Dr Harty and a very senior consultant paediatrician indeed, Dr Christopher Hobbs. A was not physically examined on this occasion. Neither the notes of Dr Hobbs at bundle pages D.241 to 242, nor the report dated 5 December 2005 from Dr Harty to the GP, now at bundle page C.6, record any particular diagnosis or outcome from the meeting, other than a further appointment made for 20 December. However, the mother said in oral evidence that the father had had to leave during the consultation to collect B from school. She said that after the father left the doctors said something about sexual abuse. This made her very uncomfortable, and she felt that it wrong and inappropriate that Dr Hobbs should say this to her on her own. It left her shocked and tearful.
- The mother and A made their way to the car park to meet the father on his return with B. The mother said that on the way to the car park she asked A if her dad had touched her. A said no, he had not. If she had said yes, he had, the mother would have been angry, thrown him out and rung the police. She said that she later told the father what Dr Hobbs had said and asked him whether he, the father, had touched A sexually or inappropriately. The father said he had not. The mother accepted the father's denial then, and has continued to accept it ever since.
- However, and this is the significance, the parents both say that after the possibility of sexual abuse had been raised by Dr Hobbs at that meeting on 24 November they both began to keep a particularly close eye on both children to make sure they were safe. They no longer allowed them even to go to the shop nearby, nor to play with other children in the street outside their house. The mother said in oral evidence that she did not let them out of her sight. The children were not very happy about it and thought they were being treated like babies, but she, the mother, was very upset and could not understand how this could have happened. Although it was I who coined the phrase "watched them like hawks", the mother readily agreed with it and associated herself with it.
- In his oral evidence the father said that they stopped the children playing in the street and going to the shop. The children travelled to and from school in supervised ways.
- Both parents have made detailed written statements, now at bundle pages B.5 to 10, and B.12 to 18, descriptive of the extent of contact between the children and anyone else outside the home (including other family members).
- A combination of the written and oral evidence of each parent leaves me in no doubt that there is no-one who could have had the opportunity repeatedly and chronically to abuse A (as is alleged) except either one or other of the parents themselves, or someone within the curtilage of the school during the normal school day. It is of course theoretically possible that A was the victim of chronic abuse by someone within the school, but apart from the period of (non-sexual) bullying which I have mentioned, she has never, ever given the slightest hint that anyone, whether staff or pupil, has ever abused her within the school.
- The father said in his oral evidence that "realistically there is no-one in the family (viz. other than the parents themselves) who could have done it because of the measures we took, and I don't think it is possible that it was somebody at school."
- On all the available evidence, I agree with that comment. In other words, if A has been abused at all, it must have been by one or other (or conceivably both) parents. The significance of that comment and conclusion is that assessment of the parents becomes an essential part of the assessment not only of who might have abused A, but of whether she has been abused at all.
- Both parents again attended the follow up appointment with Dr Hobbs on 20 December 2005. His report to the GP, now at bundle page C.7, records,
"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."
- Life in the home seems to have been largely uneventful in the period between December 2005 and March 2006, when the further review by Dr Hobbs took place on 16 March 2006. However, in that period there was one further occasion when A had blood in her pants, namely on about 23 or 24 February 2006, and about three weeks before the review on 16 March.
- The only informant or source of any evidence about this is the mother. It occurred at a time when the father was in hospital for a minor operation. The mother was preoccupied both because her husband was in hospital and because a relation had suddenly and unexpectedly died the previous week, and his funeral was the next day. She and the children had been to see the father in hospital, and when they got home A was pulling down her knickers and said there was blood again. The mother saw the blood. However, because it was a small amount, and because she was so preoccupied, the mother did not retain the knickers but simply washed them. The mother stressed in evidence that, unknown to A, she did in fact routinely check her pants for any sign of blood before washing them, and there were only ever the four occasions when there was any blood, namely after falling off the wall in August 2005, on the two occasions on 17 and 19 October 2005, and on this occasion on about 23 or 24 February 2006.
- The mother said in her oral evidence that it was a small amount of fresh blood. In his contemporary notes made during the examination on 16 March 2006, now at bundle page D.243, Dr Hobbs recorded that the mother told him that "there was blood there - a tiny bit. Definitely blood. Smudged across. Nothing hurt. Only the once [viz. presence of blood]." Nowhere in the notes does Dr Hobbs identify the position or source of the blood, although I note that in his subsequent written report, now at bundle C.9(I), he refers to "a further episode of vaginal bleeding." A appears to have been physically very well, "eating like a pig", and with "no scratching or other symptoms down below."
- His report at page C.9(I) continues,
"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."
- Dr Hobbs decided to perform an intimate physical examination of A, the first that he himself had done. There are still images at bundle pages J.14 to J.21 of both the vaginal area and the anus. The findings and opinion of Dr Hobbs are contained in his written report at C.9(I) and (ii):
"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."
- Pausing there, Dr Hobbs specifically confirmed in his oral evidence that the reference to the hymenal opening being "heart shaped" was purely descriptive, and indeed it does appear "heart shaped" in the photographs. However, he said that there is nothing abnormal about the heart shape of the hymen.
- His report continued, now at bundle page C.9(ii),
"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."
- Pausing there, as that report records, both parents were now clearly told that Dr Hobbs was concerned that A may have been sexually abused, and were told that the Social Services would become involved, as indeed they did that very day. The mother said in her oral evidence that they were angry that Social Services were involved, but they knew they had to co-operate with them. From first to last the parents have indeed co-operated fully with the Social Services. As the mother also said, the doctors had got the Social Services involved and "we had nothing to hide".
- It is thus relevant to note that from 21 March 2006, at the very latest (and in reality from 24 November 2005) both parents clearly knew that: (i) doctors suspected sexual abuse; (ii) A had been intimately examined, and would be likely to be intimately examined again; (iii) there would be follow up medical examinations; and (iv) they were under scrutiny by the Social Services. Assuming that one or other of the parents had previously been abusing A, he or she would have to have been very brazen and risk-taking to carry on doing so.
- On 7 April 2006 a social worker, Miss Anowarun Ali, paid a first visit to the home. She carried out an initial assessment, and later a core assessment. In both her statement dated 26 February 2008, now at bundle pages B.57(a) to 57(b), and her oral evidence, Miss Ali confirmed that both parents were fully co-operative throughout, including permitting Miss Ali to carry out direct work with A. She said that the parents were active, not grudging in their co-operation, and were very forthcoming and positive, and interacted with Miss Ali very well. She said that the parents were very concerned that A may have been sexually abused, and were welcoming of her involvement and welcoming that she spoke to A on her own. She said that the relationship between A and her parents seemed all good and positive. There was a lot of banter and smiling, and she, Miss Ali, sensed no anxiety.
- Her written record of the first meeting, now at bundle pages C.9(c) to (d) included that, "A came across as a very confident, bubbly young girl, who was at ease with her parents and brother ..."; and, "Z and Y appeared to be very appropriate in their style of parenting, and on several occasions I have had the opportunity to observe the close bond between the children and their parents."
- Miss Ali carried out two sessions with A alone on 2 and 16 May 2006, each for about one hour. (NB. Paragraph 2.2.2 on bundle page D.5 is in error. Miss Ali saw A alone on two sessions, not four.)
- Miss Ali used some published material for the child to fill in, now at bundle F.1 to 16. I do not venture my own interpretation of A's answers and drawings, although I believe them to be entirely appropriate and positive. I mention that the drawing on page F.8 (in which A pencilled in her vaginal area) is in answer to the question, "Where would you not like to be touched by people?" It is not, I emphasise the word "not", indicating where anyone has touched her. The reference to "K" on bundle pages F.15 is a reference to the child who had been bullying her at school, and the reference on bundle page F.15 to F.16 to "make the teachers/parents believe me" is a reference to wanting them to believe that "K" had been bullying her.
- In her undated but contemporary report of the assessment, now at bundle pages C.10 to 20, Miss Ali reported very positively indeed on A and her parents. At paragraph 6.1, now at page C.19, Miss Ali reported that "direct disclosure work has been done with A, which has yielded no disclosure of abuse, but it has enabled A to discuss openly how she would keep herself safe and identify a person she would trust enough to go to with anything worrying her." The tenor of that report, and a later report by Miss Ali dated 2 October 2006, now at bundle pages D.10 to D.13, is that if A has been sexually abused, and if there is a risk to her of further sexual abuse, the abuse and the risk has come from, and remains, outside rather than inside the home and immediate family.
- The Spring and Summer of 2006 seem to have been uneventful until September, when Dr Hobbs carried out a six-monthly review examination on 13 September 2006. The previous day A had developed marks, or a rash, on her legs, for which her parents had taken her at once to the GP. In all other respects A was reported to be well, and "appeared entirely well". However, Dr Hobbs was clearly very concerned about the rash-like appearance, now depicted in a series of photographs at bundle pages J.27 to J.29. He noted that, "On the front of her legs were a series of small bruises of varying sizes scattered, varying from about 1 mm. up to about 3 mm. across. She indicated that they were tender when I touched them."
- According to the contemporary note of Dr Hobbs, now at bundle page D.247, "Z [the father] said 'could she be jabbing herself with a pencil?'." It is very important to note that that was no more than a very reasonable question by a concerned parent. By a process of Chinese whispers this later became fatally misunderstood as that A had been, I emphasise the words "had been", jabbing herself with a pencil (see the report of Dr Skelton of 21 March 2007, now at bundle page C.34, to which I will later refer).
- Dr Hobbs again carried out an intimate examination with a colposcope, of which there are still images at bundle pages J.22 to J.27. His written report dated 13 September 2006, now at bundle pages C.21 to C.22(c), records:
"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."
- As to the marks on her legs, Dr Hobbs recorded, and it just follows on at C.22(a),
"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."
- Dr Hobbs's summary, now at bundle page C.22(c), records,
"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.
- Both parents took A to see Dr Hobbs again for review on 2 October. He did not physically examine her on this occasion. Dr Hobbs's letter to the GP dated 3 October 2006, now at bundle page C.23, refers to the parents' request for a second opinion on the issue of sexual abuse:
"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."
- In October 2006 Miss Karen Ellwood succeeded Miss Ali as the social worker for A. There was a Child Protection Conference on 11 October 2006, attended by, amongst others, both parents, Dr Hobbs, and Mrs. C, the children's then headteacher at their Primary School. There are very full minutes at bundle pages D.1 to D.9. The reported position of the parents at paragraph 5 on page D.8 was that they believed A is telling the truth, and nothing has happened to her. However, both children were placed on the Child Protection Register under the category of being at risk of sexual abuse. Further medical appointments, including a second opinion, were contemplated, and both parents could have been under no illusion that they and both children, in particular A, would continue to be very closely observed and assessed.
- A was intimately examined yet again by Dr Hobbs on 18 December 2006. Both parents were present. Colposcope images are available at bundle pages J.31 to J.35. The report of Dr Hobbs is in the form of a letter to the GP dated 22 December 2006, now at bundle page C.24 (the month of November on the letter is an obvious error). A's physical condition was satisfactory, and she was growing well.
- The letter continued,
"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."
- Pausing there, Dr Hobbs has now made clear that the genital appearances on 18 December 2006 are normal, and that the anal appearance was normal.
- His report thus continued,
"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."
- Pausing there, both parents thus clearly knew and understood in December 2006 that A would be seeing Dr Hobbs again, and quite probably examined by him again, on 8 March 2007.
- During January 2007 Miss Ellwood, who had succeeded Miss Ali, undertook some direct work of her own with both children individually. She said in her statement, now at bundle page B.3, "This work has primarily focused on self protection, relationship and support networks. During this time neither child has said anything to me to explain the medical signs."
- In her oral evidence Miss Ellwood said that A never said anything to suggest that she had been sexually abused, and that when she was later removed from home in April she, A, said it was "a mistake, and she hoped Social Services would realise it was a mistake". Miss Ellwood said that both children clearly knew that the worry was that their mother or their father was the abuser. Miss Ellwood was never concerned about A's psychological presentation, and she never struck Miss Ellwood as "a troubled child". She did not strike Miss Ellwood as a disturbed child at all.
- On 26 January 2007 and 23 February 2007 Miss Ellwood did some work with A using some work sheets and other drawn material. Again I do not venture my own interpretation, but the results appear entirely appropriate and positive to me.
THE SECOND OPINION. DR SKELTON
- As requested, the GP arranged for a second opinion. The identified examiner was Dr Ruth Skelton. She is a consultant community paediatrician, who has been a consultant for about ten years. Although a general paediatrician, she is a designated doctor for child protection, and has a particular interest in, among other matters, child sexual abuse. She is now based in Bradford, but for seven years she was a consultant at Leeds General Infirmary. She had been trained there by Dr Hobbs, and she was still working there as part of a team, including Dr Hobbs, in March 2007. She was also, of course, the paediatrician who had examined A in August 2005 after she fell off the wall, as I have already described.
- I do not know how Dr Skelton came to be identified as the examiner for a second opinion, but, in my view, the selection of her was deeply regrettable (as I think each of she and Dr Hobbs felt and accepted, at least with hindsight). Dr Skelton lacked the complete independence that is required for a second opinion in these sorts of circumstances. She was, in effect, being asked to review and express an opinion upon the previous opinion of someone who was a more senior colleague, then working daily in the same hospital, and who had been her own teacher. Further, examination and assessment for physical signs of sexual abuse clearly involves considerable subjectivity, both in examining techniques (e.g. the degree of traction applied when parting the labia, and particularly the buttocks to examine the anus) and in forming a medical opinion.
- As the medical evidence in this case very clearly indicates, there may often be room for two views about normality or abnormality of genitalia and anus. As a pupil may retain and reflect the teaching of his teacher, it is particularly important that a second opinion should not be permeated by that teaching.
- In my view, the independence of Dr Skelton was further considerably compromised in this case by the fact that she had already discussed the case with Dr Hobbs before she came to examine A. That is apparent from a reference in Dr Skelton's report dated 21 March 2007, in the first few lines at the top of what is now bundle page C.33. That passage relates to the marks seen on A's upper legs in September 2006. That passage, and another passage at the end of bundle page C.34, clearly indicate that as a result of prior discussion with Dr Hobbs before she examined A herself, Dr Skelton gained a fatal misunderstanding that A had herself said that she had self inflicted harm by stabbing herself with a pencil. Dr Skelton wrote towards the end of bundle page C.34, with reference to the photographs now at bundle pages J.27 to J.30,
"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."
- During her oral evidence Dr Skelton said that she understood from Dr Hobbs that A had admitted self harm with a pencil. When she gave her oral evidence Dr Skelton accepted that she had gained a misunderstanding, for A has never ever admitted to stabbing herself with a pencil, or any other form of self harming. The significance of this misunderstanding will shortly appear.
- Dr Skelton examined A in the presence of both parents on 21 March 2007. This examination was video recorded as a moving dynamic examination through the colposcope. It is available on disc, and subsequent experts, and I myself, have been able to view it several times. I mention that it became quite apparent that there is some variation in colour and appearances, depending on precisely which of the several available discs is used, and upon what computer it is displayed. (This is relevant in particular to whether stool may be seen within the anal canal. Viewing one disc, Dr Skelton said she could not see any stool. Viewing another disc, Professor 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.)
- Dr Skelton's report, now at bundle page C.35, states as follows,
"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."
- The conclusions of Dr Skelton, now at bundle page C.36, were as follows,
"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."
- Dr Skelton then continued,
"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."
- Pausing there, no psychological assessment was ever in fact undertaken, whether for clinical purposes, or within, and for the purpose of, these proceedings. Whilst Dr Skelton's opinion of the observed ano-genital signs may have been the same irrespective of any issue of self harming, it is quite apparent that her overall assessment and opinion was considerably influenced by her mistaken belief that A had admitted to self harming. "This sort of self inflicted injury suggests a very disturbed girl. Self inflicted injury is often seen in children who are being abused." In the recent and continuing observation of Karen Ellwood at that time (and others before her) A was not in the least disturbed.
- The written report of Dr Skelton refers to A being sexually abused "chronically over a long period", and that the abuse is "ongoing". In her oral evidence the mother said that at the conclusion of that examination and meeting Dr Skelton said to herself, the father and A, I emphasise the words "and A", that A had been sexually abused, and that the abuse was chronic and ongoing. The mother said she was very upset that Dr Skelton said that while A was present. The mother said that that evening she again asked A while they were alone together whether anyone had touched her and whether there was anyone who frightened her, but that A was adamant that nothing had happened to her.
REMOVAL OF THE CHILDREN AND THE PROCEEDINGS
- The conclusion and report of Dr Skelton, who had supposedly provided an independent second opinion, had a predictable and dramatic effect. The Social Services felt that they must inform the police and, according to Karen Ellwood, the police made plain that if the local authority did not remove both children from their home the police themselves would do so under their emergency powers. The upshot was that both children were removed from their parents on 19 April 2007 by social workers, and placed, by agreement, with the mother's grandparents, with whom they remain. In reality, the parents had no alternative but to co-operate and agree, but it is clear that the parents themselves did co-operate in the process, and did do their best (as did the social workers) to minimise the trauma to the children.
- As part of the preparation of the children for removal from home, their headteacher, Mrs. C, spoke to them. In her statement dated 22.8.2007, now at bundle pages B.30 to 32, Mrs. C makes plain that the parents had always kept her fully informed about the situation regarding A, and indeed she had attended the Child Protection Conferences, but the parents now asked her to speak directly to the children, and she did so. She says at paragraph 7 of her statement that she asked both children what they thought had happened, and on all occasions A said that nothing had happened to her. A was absolutely adamant that nothing had happened to her.
- It was very apparent when I myself met A and B this week that 19/4/07 is branded on their minds, probably forever. The children have lived with their grandparents ever since, now for eleven months. They have been permitted to see their parents on four days a week for about one a half or two hours a day, and always strictly supervised by a social worker or similar person. The present proceedings were commenced on 20 April 2007. A final date was originally fixed for a fact finding hearing on 29 August 2007 with three days allowed. However, that hearing was postponed on the application of the parents to enable further medical evidence to be obtained, including evidence from Professor 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.
- Reverting to the chronology, a directions hearing on 16 May 2007 made provision for the guardian to instruct as an expert witness a consultant paediatrician, Dr Margaret Crawford. Dr Crawford has been a consultant paediatrician for over 23 years, and takes a special interest in child protection. She is based at a hospital in Boston, Lincolnshire, and has never worked with Dr Hobbs at all, nor worked at Leeds General Infirmary, save for a period as a registrar in paediatric neurology many years ago. I do regard her as having the genuine independence that Dr Skelton lacked.
- Dr Crawford initially reported in July 2007 on the basis of a review of the documents, and some, but not all, the images. At that stage no permission had been granted for Dr Crawford actually to see and examine A herself. Dr Crawford commented in turn on those images which had been provided to her, and then, at paragraphs 63 to 67 on bundle page C.53, referred to the marks seen on A's legs in September 2006. She said, at bundle page C.53,
"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."
- At the end of her report, now at bundle page C.56, Dr Crawford made a "summary" as follows,
"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. "
- Pausing there, during her oral evidence Dr Crawford preferred to rephrase her paragraph (1) as follows, "The ability to see the vaginal opening without separation of the labia would be of concern, but would not be a finding which would confirm sexual abuse."
- Her summary continued as follows:
"(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."
- Pausing there, it is clear that the overall opinion of Dr Crawford at that stage was based on the "constellation of symptoms" which she identified, and that included attaching some weight at paragraph (3) to the "self inflicted bruising." In light of later evidence, Dr Crawford said during her oral evidence that, "Paragraph (3) comes out."
- Following that report the court granted permission for Dr Crawford and Dr Hobbs to examine A intimately, which they did on 16 August 2007 in the presence of the mother. As I understand it, the primary examiner was Dr Crawford in that it was she rather than Dr Hobbs who parted the labia and parted the buttocks so that she and Dr Hobbs could view the genitalia and anus. Again, there are still images at bundle pages J.37 to J.42.
- In her contemporary notes at bundle pages C.66(a) to C.66(b) Dr Crawford noted, "Before separating labia, hymen in view. On separating labia with traction, smooth normal hymen". The anus was examined while A lay on her side with her knees drawn up. "Anal folds normal. With significant degree of traction [I emphasise those words] some anal laxity demonstrated ... Findings would not confirm sexual abuse. "
- In her written report, now at bundle page C.62, Dr Crawford said of this examination that,
"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."
- However, in the view of Dr Crawford, the anus at the time of the examination in March 2007 appeared very abnormal. By August anal signs had improved greatly.
"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."
- It was in the light of that report that the hearing fixed for the end of August 2007 was adjourned, and permission granted to the parents to instruct Professor 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.
- It is not the first time that Professor 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.
- In her final submissions Mrs. Sally Bradley QC, on behalf of the local authority, submitted that the evidence of Professor 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.
- In her written report of October, 2007 (now at bundle pages C.90 to C.96) Professor 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.
- The second basis of Mrs. Bradley's submission was the manner in which Professor 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.
- Mrs. Bradley submitted that this showed a "zealous" approach and gave an insight into the lack of objectivity of Professor 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.
- If Professor 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 .)
- In my view, the evidence of Professor 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.
- In her written report, now at bundle pages C.90 to C.96, Professor 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."
- At page C.95, under the heading "Opinion", she said,
"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."
- She considered the vaginal examination to be completely normal. As to the anal examination, she said, now at bundle page C.96,
"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
- Issues raised by Professor 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.
- After a full dermatological examination of A Dr Clark concluded in her report, now at bundle page C.89, that,
"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."
- In the light of that evidence it appears that the state of A's thighs is consistent with A's own corroborated account of slapping them innocently during a music lesson. There is absolutely no other evidence of any attempt by her to self inflict harm. In my view, the spectre that A had been harming herself must be eliminated from the case. That removes a significant element of the "constellation of symptoms" referred to by Dr Crawford, and the basis for A being "a very disturbed girl" as referred to by Dr Skelton in her report at bundle page C.36.
- The separate dermatological examination was by Dr Jennifer Yell on 12 December 2007. Dr Yell is a consultant dermatologist practising at the Hope Hospital in Salford and in Warrington, Cheshire. She is, amongst other interests, Chairman of the British Society of the Study of Vulval Disease, and an expert on cutaneous vulval dermatology, but not, as she is careful to say, on child sexual abuse. She reviewed all the images and examined A on 12 December 2007. A is dermographic and has a tendency to eczema. Dr Yell later explained in her oral evidence that endogonous eczema "can pop up anywhere in the body". On the day of the examination A was dermographic, that is, her skin wheals easily with rubbing. She had (on that day) eczema of the dorsum of her hands, with some cracking. Examination of her genitalia and peri-anal skin was normal.
- Dr Yell said in her oral evidence that a female child who has some tendency to minor eczema, as this child has, may have an area of eczema in her vulval area which could lead to a labial adhesion forming, which could bleed when it later breaks down. However, in her opinion, there is no sign of any labial adhesions in any of the images of any of the examinations.
- However, Dr Yell did also scrutinise the images of the peri-anal examinations. In her opinion, images 0010.JPG and 0011.JPG, and 0012.JPG (now at bundle pages J.5 and J.6) of the examination on 20 October 2005 (i.e. immediately after the two reported episodes of blood on the pants on 17 and 19 October) do indicate minor erosions on the anal verge at roughly 9 and 10 o'clock in the photographs. An erosion is a loss of epidermis and (once pointed out) the erosions are clearly visible as marks in the relevant photographs. Dr Yell said at bundle page C.202, "This type of erosion or split could occur on the background of eczema, and is commonly observed on the fingers of children in eczema."
- In her written report, now at bundle page C.159, Dr Yell said,
"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)."
- In her oral evidence Dr Yell said that if the amount of blood was small or "spotting" it was entirely in keeping with a small split to the skin or erosion, as seen in the photographs.
- In my view, the opinion and evidence of Dr Yell provides a credible, possible, non-abusive reason why there may have been small amounts of blood in A's pants on 17 and 19 October 2005. Dr Yell also said that if there were erosions in October, then it was entirely possible that there were similar erosions which caused the single observation of blood the following February. However, the child was not physically examined until about three weeks later, by which time the erosions would have healed without trace.
THE RCPCH NEW GUIDANCE
- A final development in the medical material in this case is the imminent publication of a new document by the Royal College of Paediatrics and Child Health, "The physical signs of child sexual abuse, an evidence based review and guidance for best practice". This is currently dated March 2008 and, I understand, will be published on 2 April 2008. I am very grateful indeed to the Royal College for generously and freely making an advance copy available for use in this case and for study and consideration by all the experts in this case.
- As I understand it, this is a fundamentally new document. It does not so much revise as replace the previous guidelines published by the Royal College of Physicians, most recently revised in 1997. The new document is long, detailed and, in places, highly technical. At the risk of over- simplification, I understood from all the paediatricians who gave oral evidence that the new document is more conservative and cautious as to the reliability of physical signs as evidence of abuse. It has, as I understand it, led Drs Hobbs and Crawford, in particular, to be more cautious about some of the views they express in the present case.
- At paragraph 1.2 in the "Introduction" the document refers to the metaphor of a jigsaw puzzle. As the reference in the footnote indicates, this metaphor was apparently first coined in 1990 by Dr Hobbs himself, and another author, Dr J. M. Wynne, and Dr Hobbs has used the jigsaw metaphor in the present case. The report says,
"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."
- Whilst the purpose of the metaphor is to stress, as the document goes on to make plain, the importance of considering "all physical findings together with other important clinical information including the history, child's behaviour, demeanour and statements made by the child", I myself feel that the metaphor (like many analogies or metaphors) can be misleading. It tends to presuppose that all the pieces can be fitted together, and that there is a "full picture" to be made. By presupposing that each piece of information does fit somewhere in the picture, it may ascribe some weight or significance to each piece of information and obscure the important point that 0 plus 0 plus 0 still equals 0. If the jigsaw metaphor is helpful at all, then, in my view, it is important to think of a pile of jigsaw pieces in which pieces from more than one jigsaw have been muddled up. There may be pieces which, on examination, do not fit the jigsaw under construction at all, but which require to be discarded or placed on one side.
- Professor 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
- I heard oral evidence from the following doctors, Dr Hobbs, Dr Skelton, Dr Crawford, Professor 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.
- Dr Crawford said that in the light of the new guidelines she, too, considers or accepts that all the images of the genitalia are normal, although she is still worried about them.
- Dr Skelton's position remained as recorded in the notes of the experts' telephone conference, now at bundle page C.187, namely that in the light of the new guidance "she would rather say that she could not say that A's genital signs were definitely abnormal."
- Professor 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.
- All three English paediatricians remained much more concerned about the anal appearances. Dr Hobbs considers that the appearances when examined by him in March and September 2006, and when examined by Dr Skelton in March 2007, are all abnormal. In her own oral evidence Dr Skelton continued to stress the craggy and irregular appearance of the anus during her examination on 21 March 2007. Dr Crawford agreed that the appearance was "craggy" (a description with which I also agree), but she, Dr Crawford, said she would not put a great deal of weight upon cragginess as a factor.
- For her part, Professor Heger said that cragginess or irregularity (rather than a smooth round hole) is a normal finding of no significance at all.
- The English paediatricians all continued to consider that the examinations in March and September 2006 and in March 2007 all indicate a lax or dilating anus, with visible mucosa, which is outside the bounds of the normal. Professor 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.
- The overall "Evidence Statement" of the Royal College at page 97 of the new document states in relation to reflex anal dilatation and anal laxity as follows,
"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."
- All the doctors, including Professor 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
- I turn to the evidence of the parents. Each parent appeared to be of normal reasonable intelligence. As witnesses, each struck me as open and straight-forward. Their evidence and accounts were plausible, consistent with previous accounts, and consistent with each other. Their evidence appeared entirely credible and worthy of belief. I have already drawn much of the above narrative from the written or oral evidence of the parents, and will not now repeat it. Each is adamant in their denial that he/she respectively has abused A in any way at all, and adamant in their respective belief that the other parent could not and would not have done so. I am in no doubt that if the mother thought at any stage that the father had indeed abused A, she, the mother, either would have required him to leave home or would have left herself.
- I took what is, for me, the very rare and exceptional course indeed in a case such as this of seeing the children. I was told that they would like to see me, and although I already had many reports about them from social workers and others, I felt that I should meet them myself. Consistent with all reports, they are bright and very well mannered children. When permitted to do so, B tended to talk more than A, but when I asked to hear from her he readily kept quiet and she readily talked.
- We discussed many matters, and they gave answers very consistent with the evidence from their parents. For example, B, entirely spontaneously, described how the parents had begun to watch them very closely when at play. Both children have a complete and accurate awareness of why they were removed from home. A clearly remembered all the different doctors whom she had seen, and could name several of them. She was adamant to me that no-one, whether in the home or at school, had touched her at all. B said very spontaneously that it was "all a big cock-up. We have got the best mum and dad. Why would they [the parents] abuse my little sister?" Whilst that approach is no doubt childlike and naive, I am quite satisfied that B, who was living throughout in the same small home, is not personally aware that anything abusive was ever done to her.
- My role and purpose was not to carry out a specialist interview in accordance with the Memorandum of Good Practice, and I did not think it appropriate to speak to them separately and individually. I am well aware that it would have been impossible for A to give an indication to me in the presence of B that she had indeed been abused. I therefore attach no discrete significance to the fact that she did not do so. When we were talking about the question whether A had been touched, she did become tearful. I lack the expertise to say whether that was because she is in truth hiding what she knows to be a dreadful secret; or because she has been asked so often about it, her denials appear to her not to be being believed, and she feels responsible for all the turmoil to her family. Both children said that they love their parents very much and just want to go home.
- The children's guardian, Ms. Sarah Riddell, did not give any oral evidence, and takes a neutral position on the outcome of this hearing, deferring to the judgment of the court. However, she has frequently met both children and knows them well. She has talked to both children about the issues in this case, and to her, too, A has always denied that anyone has touched her. Although her only written statement, now at bundle pages B.27 to 28, is dated as long ago as 22 August 2007, I understand that that remains the position.
CONCLUSIONS AND REASONS
- By this stage of this day I consider it only fair and appropriate first to state my conclusions and then to endeavour to describe my reasons. I need not make any detailed reference to the law. These are care proceedings brought by the local authority. They depend entirely upon proof that A has indeed been sexually abused in some way. The burden of proof is upon the local authority. The standard of proof is the civil standard of the balance of probability. I am quite clear that the local authority have not discharged that burden. I am not satisfied that it is more probable than not that A has been sexually abused. That conclusion is sufficient to dispose of the case.
- However, I have given prolonged, anxious and very careful consideration to whether I can and should go further and make a positive finding that A has not been sexually abused and, if so, with what degree of probability or certainty. I can of course only do so if, after due consideration, that is the true state of my mind. The difficulty lies in being positive about a negative. Since there are "worrying" features about the case, it is impossible to eliminate all doubt. However, viewing every aspect of the case as a whole, I do feel sure, and so find, that A has not been sexually interfered with or abused at all.
- My reasons are as follows. The doctors start with their physical observations and with the reports of blood in the underpants. I start the other way round. For reasons which I have already given, if A has been abused at all she can only realistically have been abused by one or other (or both) of her parents. If there is any medical evidence of abuse at all, it is of repeated abuse ongoing over all or much of the period from (at the latest) October 2005 (when the blood was observed) until March 2007 (when Dr Skelton carried out her examination). Throughout most of that period, and certainly from late November 2005, the parents claim (and the children corroborate) that they were kept under close watch by their parents. There cannot have been any other abuser than one of the parents.
- There are not, and cannot be, reliable statistics or data about the true prevalence of sexual abuse by parents, for reasons described in paragraphs 1.11 and 1.12 of the new Royal College document. But there is no data in that document, or of which I am aware, to undermine the proposition that a majority of parents in our society do not sexually abuse their children. The starting point must be that it is improbable that a parent of otherwise good character would sexually abuse, or has sexually abused, his or her child in the sort of deliberately penetrative way under consideration in this case. (Less serious forms of touching such as kissing or stroking the external genital area are not what is under consideration. If there has been abuse at all, it must clearly have involved deliberate penetration by a finger, penis or object of the vagina and/or the anus.)
- In my view, the degree of inherent improbability tends to be heightened by the facts and chronology of this case. As I have already described, from late November 2005 and, in particular, from 21 March 2006, both these parents were well aware that they and A were under intense and continuing scrutiny, and that there would inevitably be further follow up medical examinations. They would have known that there was a high risk of any sexual abuse being exposed.
- I must, and do, give weight also to the fact that A has never given the least indication of abuse, and has always denied it when asked. She has denied it to her mother, to her headteacher, Mrs.C, to social workers and to her guardian. Two different social workers, Miss Ali and Miss Ellwood, in different periods of time (May 2006 and January/February 2007) have done specialised work designed to enable her to disclose or hint at abuse, or, at any rate, to reveal or indicate any underlying fears or insecurity. She revealed and indicated nothing. On the contrary, she gave every indication of being a happy and well integrated member of a happy and well functioning family.
- I fully accept the view and observation of Dr Hobbs that the pressures on a child not, I emphasise the word "not", to disclose abuse may be very great. The child may well understand that the effect would be to break up the family and even cause a parent to be imprisoned. But I agree also with a comment by Professor Heger that, "We walk a very dangerous line if we only believe children when they disclose abuse, but not when they deny abuse."
- Insofar as any of the English paediatricians assert that they do consider that A has been abused, they are implicitly asserting that her repeated denials are not to be believed. I see no reason, on the facts of this case, not to start from the position that A's own account is worthy of belief.
- I take account also of the character and behaviour of the parents, and my assessment of them as witnesses. Every observation of these parents is of caring and attentive parents. Out of their care for their children they have taken steps which might obviously expose any abuse instead of attempting to cover it up. Leaving aside the fall from the wall in August 2005, this whole case only began because the parents at once took their child to A&E when she had the smallest of stains of blood. That seems to me to be the act of a caring and innocent parent. If the mother was the abuser, she could so easily have washed the pants and kept quiet, at least unless and until repeated or significant bleeding occurred which she could not ignore. If the father was the abuser, he could so easily have suggested to the mother that they need not go at once to A&E, but wait and see if there was further bleeding, but he did not do so. As I have said, there is evidence that in November 2005 the parents wrote to the school, positively encouraging the school to be alert for blood in A's underpants. This seems more consistent with a concerned and innocent parent than with an abusing parent with something to hide.
- I have already given my assessment of the parents as witnesses. Their evidence, which includes their denials, appeared plausible, consistent and worthy of belief. Further, if the mother thought in the least that the father had abused A, she would, in my view, have separated from him. The house is small, they live at close quarters with each other. It would not have been easy for either parent repeatedly over a long period of time to abuse A without the other parent, or indeed B, picking up some sign of what was going on.
- All these considerations in combination create, in my mind, a very strong starting point that there has been no abuse.
- What weighs the other way? In my view, two matters can be completely discounted. First, the bleeding in August 2005. In my view, that is, and was, entirely satisfactorily explained as the product of accident. It is, on the approach of Professor Heger, a nought or zero. On the jigsaw metaphor, it is a piece which does not belong to this jigsaw at all.
- Second, the marks on A's thighs, which so concerned each of Drs Hobbs, Skelton and Crawford, and may have had a considerable influence on their assessments at critical times in the history. They led Dr Skelton to the view that A was a very disturbed girl at bundle page C.36, and were an important part of Dr Crawford's constellation of symptoms, at bundle page C.56. In my view, they have now been innocently explained by the evidence of Dr Clark, and information from the school. Of course, the alternative more sinister explanation of self harming may also be possible, but there is simply no warrant for assuming that explanation when the alternative explanation exists and is credible. So this, too, does not belong to this jigsaw at all, and should be laid to one side.
- There remain the episodes of bleeding and the observed state at different dates of the genitalia and anus. Clearly these two aspects of the case do need to be considered together. Dr Yell's evidence provides a credible, possible, non-abusive explanation for the presence of the blood, but cannot go further than that. It does not, in my view, reduce the presence of the blood to a nought or zero factor. Professor 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.
- As well as the blood there are the observed appearances of the genitalia and anus. By the end of their evidence, Dr Hobbs and Dr Crawford considered or accepted that the genitalia were normal, or within normal limits. Dr Skelton was more guarded, but certainly does not regard the genital appearances as diagnostic of abuse. As I have said, all three English paediatricians are much more concerned about the anal appearances, but the highest they put it is that they are suggestive or supportive of abuse. Undoubtedly, if there was any credible account by A of penetrative anal abuse, then the anal appearances would be consistent with, and supportive of, that account. I cannot regard the evidence of Professor 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).
- But the overall state of the medical evidence leaves me in very considerable doubt whether, in truth, the anus ever was abnormal, and whether the reported appearances and the available still and video images are not the result of traction applied during the examinations. When Dr Hobbs examined the anus on 18 December 2006 he considered it to be normal and healed or healing, yet there is a marked absence of tenting in the images of that examination when contrasted with that on 13 September 2006. On the known facts of the case, it seems to me especially unlikely that if one parent had been anally abusing A, and had then stopped in time for the anus to repair and heal between September and December 2006, that parent would have resumed the abuse between December 2006 and March 2007. The parents knew in December that a further appointment had been fixed for March, and the period was one of intense investigation by the Social Services. Miss Ellwood carried out her work in January and February 2007.
- Further, as I have already said, the anal appearances in September 2006 and August 2007 look remarkably similar, both as to the appearance of the anus and the clearly visible traction and tenting (compare J.25 and J.26 with J.42). But in August 2007 Dr Crawford deliberately applied excessive traction and considered the anus in fact to be normal. I do not positively find that the observed signs of abnormality in the earlier examinations were in fact the product of too much traction, but I consider that there is a real possibility that they were.
- In summary, there were three worrying episodes of bleeding, which may have been the product of abuse, but may have an innocent explanation of erosions; and there are anal appearances which, at their highest, are suggestive or supportive of abuse, but in relation to which I consider there is a real possibility that they were caused or induced by the examining techniques. I do not reduce these factors to the value of zero or nought. But I do consider that they are so heavily outweighed by all the other factors to which I have referred that I am judicially sure that A and her parents are right, and that no abuse has in fact occurred. I am sure that neither YX nor ZX has abused A at all, and I now completely exonerate them.
- It follows that neither child has suffered, or is likely to suffer, significant harm attributable to the care given to them by their parents. The threshold criteria under section 31 of the Children Act 1989 are not made out, and these proceedings will be dismissed. Unless the local authority make any application for a stay of my decisions and order, the children may return home at once.
- This case was every parent's nightmare. Being caring and attentive parents, they took their child to the hospital or doctor at the slightest worrying sign. A became subjected to no less than eight invasive intimate examinations of her private parts. The children were removed from home for eleven months, and only permitted highly supervised contact with their parents. Both children must inevitably have been emotionally damaged by the experiences.
- My primary task, however, has been to decide whether or not A was abused. This is not an enquiry into how these events came to happen. This has been a very fact-specific judgment after a very fact-specific hearing.
- I have been invited to make some more general observations or give any appropriate guidance for future cases. For instance, there was some discussion during the evidence about the problem of a lack of scale when magnification is used on a colposcope. I consider, however, that I do not have a sufficient evidential base to enable or entitle me safely to make general guideline observations. The new document of the Royal College of Paediatrics and Child Health will be published imminently. It is a considered document, and the product of very great work and consultation amongst many experts. For a period, that document should be enabled to permeate and influence the approach rather than the observations of a single judge after hearing limited evidence which has been very specifically focused on the facts of this case.
- I wish only to stress, as that document does at paragraphs 1.2 and 1.13, the very great importance of including in any assessment every aspect of a case. Very important indeed is the account of the child, considered, of course, in an age appropriate way. An express denial is no less an account than is a positive account of abuse. It is also, in my opinion, very important to take fully into account the account and demeanour of the parents, and an assessment of the family circumstances and general quality of the parenting. The medical assessment of physical signs of sexual abuse has a considerably subjective element, and unless there is clearly diagnostic evidence of abuse (e.g. the presence of semen or a foreign body internally) purely medical assessments and opinions should not be allowed to predominate. Even 20 years after the Cleveland Inquiry, I wonder whether its lessons have fully been learned.
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