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Home > Judgments > 2013 archive
SMD v LMD [2013] EWHC 4611 (Fam)
Fact-finding hearing in respect of child involved in proceedings relating to contact.
This judgment arises from a fact finding hearing in respect of A who, at the time of the hearing, was 7 years old. For a case summary in respect of this judgment and that concerning the father's application for contact with A, please see SMD v LMD [2014] EWHC 302 (Fam).
Neutral Citation Number: [2013] EWHC 4611 (Fam)
Case No: FD11P00974
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Before :
MRS JENNIFER ROBERTS QC
(sitting as a Deputy High Court Judge)
Between :
SMD Applicant
LMD Respondent
Mr R Lewis (instructed by Nelsons) for the Applicant (the Applicant appearing in person on the final day of the hearing)
Mr P Hepher (instructed by Crosse & Crosse) for the Respondent
Hearing dates: 15-19 October 2012 and 16 January 2013
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
This judgment was delivered in private. The judge has given leave for this version of the judgment to be published on condition that (irrespective of what is contained in the judgment) in any published version of the judgment the anonymity of the children and members of their family must be strictly preserved. All persons, including representatives of the media, must ensure that this condition is strictly complied with. Failure to do so will be a contempt of court.
Mrs Jennifer Roberts QC :
A Introduction
1. Over the course of five days between 15 and 19 October 2012 and subsequently on 16 January 2013, I dealt with a fact-finding hearing in relation to a little girl, A, who was born on 25 August 2005 and is now 7½ years old. A is the only child of the Applicant father and the Respondent mother who were married to one another for a period of three years, having been in a relationship since about the end of 2004. For the purposes of this judgment, I will refer to the parties as "the father" and "the mother".
2. Throughout the course of their married lives, the father and mother made their home in Spain, where the father was employed by an English company as an internet consultant. He continues to live and work in Spain.
3. A is currently living in this country with her mother having finally returned from Spain in November 2009 in circumstances with which I shall come to deal. She shares her home with her two half-siblings, J (who was born on 27 June 1999 and is now 13 years old) and C (who was born on 7 January 2009 and is now 4 years old). J's father has played no role in his life since he was very young although, throughout this marriage, the father treated J as a child of the family and, until the parties' separation, the two appear to have been very close. C's father is PO, the mother's current partner. Whilst she told me that she and PO maintain their relationship, they are not currently living together. On the mother's case, it is the pressure of these proceedings and the antipathy between PO and the father which prevents their cohabitation as a family.
4. On 1 February 2012, the father issued an application for contact with A. At that point, he had not seen his daughter for two years. The following month, on 13 March, Mr Philip Sapsford QC, sitting as a Deputy High Court Judge, made a number of disclosure orders and directions including the listing of a hearing at which the Court would be asked to deal specifically with findings of fact in relation to events which flowed from A's return with her mother to this jurisdiction from Spain (which had been her home for the first three years of her life).
5. The matter returned to court on two further occasions for detailed case management. An earlier fact-finding hearing listed in July 2012 was abandoned primarily, it seems, because of the unavailability of one of the professional witnesses. On 16 July, Ms A Russell QC, sitting as a Deputy Judge of the High Court, relisted the fact finding hearing for 15 October 2012.
6. The mother served her final schedule of the findings which she sought with her statement dated 31 May 2012. The father's response came on 9 July 2012.
7. The allegations against the father in respect of which findings are sought by the mother fall broadly into two categories. The first set of allegations arises from the sequence of events which was put in train when the mother, with A, left Spain in November 2008 at the end of her marriage to the father. The mother makes allegations of violence, harassment and intimidation directed by the father towards her and others. She says that his actions in relation to her and a number of individuals employed by various authorities and agencies constituted a campaign of harassment directed principally towards her and PO. They unfold against the background of some bitterly contested Hague Convention proceedings in which the father sought, and temporarily secured, the return of A to Spain.
8. The second, and separate, allegation concerns the possibility that the father may have sexually abused A. This allegation has its origins in various conversations which A is said to have had with her grandmother and, subsequently, with her mother and other third parties who were to become involved in the investigation. I shall return to the detail of those matters shortly.
9. The father accepts in part the facts which underpin the first set of allegations (although not their effect and/or consequences upon or for the mother) and pleads justification for his actions. However, he is aghast at the allegations of abuse insofar as they relate to A and rejects them entirely. In so doing, he contends that this is a clear case of parental alienation in which the mother, in collusion with the maternal grandmother, has coached A to make specific allegations against him, thereby achieving her objective of marginalising him forever in his child's life. The case he puts against the mother, whilst not specifically set out in the form of a counter-schedule, has led Mr Hepher, counsel for the mother, to invite the court to make specific findings as to the truth or otherwise of the father's allegations in relation to "coaching" of this child.
10. Whilst these issues may appear relatively straightforward in terms of description, their unfolding and the history of the litigation is far more complex. It is to that history that I now turn.
A. The background and the earlier litigation flowing from the Spanish divorce anthe Hague Convention proceedings
11. The father and mother are both English. He was born on 6 January 1969 and is now 44 years old. The mother was born on 22 May 1979. She is 33 years old. There is an issue as to when they first began a relationship. The father says he has known the mother and her family since 1996 when J was about 3 years old. The mother's evidence, which the father rejected in his oral evidence, is that she lost her virginity as a result of a brief sexual relationship with him when she was 15 years old and still a student. They both appear to have moved forwards with independent lives. The mother formed a relationship with J's father although she was never married to him. I was told about earlier court proceedings relating to J where contact was offered by the mother at a time when the child was still a young infant. Whilst these proceedings appear to have been ongoing until shortly after J's second birthday, his father did not engage with them and his involvement in J's life appears to have ended at that point.
12. In the summer of 2004, the mother and father met up once more. What appears to have been a fairly casual friendship soon developed into a romantic attachment. The mother had just emerged from a broken relationship and, when the father proposed that they begin a new life together in England, she accepted. They became engaged in November 2004 and the mother moved into the father's home in England at the beginning of 2005, her parents having by then moved to Spain. Shortly thereafter, the mother became pregnant with A. It seems that she was unhappy living in England and the father suggested they move to Spain to be near her parents and to start afresh. A was born in August 2005 and the parties, with the two children, moved out to Spain in November of that year, the father having persuaded his employers to allow him to relocate from England. Thus, A arrived at her new home in Spain when she was about 12 weeks old. J was then 6 years old. There is little doubt from the evidence in the papers before me that the father included J as a full family member and assisted with the cost of his private education at a local international school in Spain. It is not without significance that the mother and father agreed to change their names by deed poll so as to allow J and A to share the same surname.
13. The marriage was celebrated on 16 March 2006. The father was then 37 and the mother 26 years old.
14. As I have said, the maternal grandparents were also living in Spain at this time and they, and particularly Y M, the maternal grandmother, have been an important part of A's early life story.
15. Whilst there is little in the evidence before me to explain the narrative of the marriage, it was short-lived. I have read the affidavits filed by the parents in connection with the subsequent Hague proceedings. By the summer of 2007, it seems that the mother had formed a relationship with PO who was then working locally in Spain. In July 2007, she moved out of the family home. On the father's case, the two children were left in his care.
16. By September of that year, assisted by their Spanish lawyers, the parties reached an agreement which provided for the shared care of both children who spent part of each week separately with the mother and the father. The father says that, over the course of the next few months, the mother took holidays with PO in Dubai and Jamaica during which periods she was happy to leave both J and A in his sole care.
17. By April of the following year, 2008, the shared care regime was under pressure. The father contends that J (then not quite 9 years old) returned to live with his mother who thereafter made contact between them very difficult. The mother contends that the cessation of contact was initiated by J himself as a result of negative comments which the father had made to him about PO.
18. In June 2008, the mother told the father that she was expecting PO's child. The following month, in July, without prior warning to the father, she left Spain and moved with PO and the two children to England. He learnt of their departure from an email which she sent once she arrived back in this country.
19. The mother told me that her circumstances in Spain had become very difficult. PO had lost his job with the radio station. She was heavily pregnant, in financial difficulties and without access to proper healthcare. Whilst I have not been asked to make findings about the circumstances of her departure, it appears that PO may have been under something of a cloud at the time they left Spain. There is within the papers evidence that he was in dispute with his employer over the removal of monies taken in lieu of unpaid wages and that several creditors were pursuing claims against him and/or the mother. Amongst other debts, it appears that they were in arrears with the rent on the home they shared. The mother says that she had spoken to her Spanish lawyers about leaving the country and was advised to take the course she did. Be that as it may, her departure with A elicited a swift and predictable response from the father.
20. On 17 July 2008, following the commencement of proceedings in the Family Division in London, Mr Justice Hedley made the children wards of court. Proceedings were instituted under the Hague Convention in which the father sought the return of both children to Spain. The mother was located and served with the proceedings. The father flew to England for contact with A in July and August. In September 2008, no doubt with appropriate legal advice, both parties agreed to mediate using the services of Reunite International. I have a copy of the Memorandum of their agreement in the papers which are before me. That document was produced after two days of mediation on 9 and 10 October 2008. In terms, the mother agreed that A would be returned to Spain by the end of the month and, in the event that she herself did not travel to Spain, A would be placed in the father's care. The mother was by this stage heavily pregnant and unable to travel. Arrangements for contact in England were put in place until C's birth. Thereafter, the agreement was that the mother and her new baby would travel out to Spain for two out of every four weeks. She would be based with her parents and A would then divide her time between the two homes in Spain with the father having daily telephone contact and two afternoons a week with A after school during the periods when she was in her mother's care. During periods when the mother was in England, she was to have daily contact with A within the father's home by email, telephone and Skype. It was agreed that the father would provide A with a mobile telephone for the purposes of facilitating contact to both mother and father.
21. That interim holding arrangement was duly implemented and underpinned the pattern of this little girl's daily life for the next year. It is a period which has a critical relevance for the purposes of the enquiry I have to undertake since it is during this period that the mother alleges the father sexually abused A. It is also a period during which the parents' relationship deteriorated to the point where any effective communication between them appears to have become impossible. The father alleges that, having failed in her initial attempt to remove A to England, the mother set in train a course of events which was designed to bring about that which she had failed to achieve the previous year.
22. Standing back for one moment, I have already expressed my views during the hearing as to the inherent improbability of this childcare regime working effectively, even as the basis of a holding situation whilst A's longer term welfare was considered by the Spanish courts. These were not simply estranged parents. They were parents who were by that stage wholly antipathetic towards one other and unable to co-operate effectively about even the most basic arrangements for A's care. They were attempting to implement what was already a difficult timetable on the basis that the mother was required (no doubt reluctantly) to travel back and forth between different countries with a very small baby. I have no doubt she was distressed to leave A in Spain on occasions when she travelled back to England. It must have been a confusing situation for a small 3 year old child who had not been given the opportunity to absorb within the family dynamic the arrival of a new baby brother.
23. The mother has presented within her evidence to the court a catalogue of complaints about the father's behaviour in relation to contact during this period. The father, in his turn, complains about the mother's behaviour. Handovers at the beginning and end of the shared residence periods provided fertile ground for allegation and counter-allegation. The grandparents and other third parties became involved in the acrimony which the parental dispute was by then generating. Both parties appeared intent on video-recording these occasions. Whilst the father told me this was a form of protection against spurious allegations and the risk of a further abduction by the mother, I have no doubt that each regarded it as part of the evidence-gathering process upon which he/she had by then embarked. I have within the papers before me evidence that on 27 June 2008, the father made a formal complaint against the mother in the local magistrates court which related to an allegation of criminal damage in which he produced a disc of his recording "in which [he alleges] [she] is seen committing the reported damage".
24. I have no information as to when, at this juncture, the Spanish courts envisaged a resolution for A based on a welfare-driven investigation. There is within the material placed before me an English translation of a Spanish document dated 16 July 2009 which appears to be the mother's case to the Spanish courts seeking interim custody, a stay of the Spanish proceedings and a transfer to this jurisdiction for future determination of all issues arising in relation to A's future. There were further appearances in the local family court in Spain, including an application by the mother following an allegation that the father had failed to return A at the end of a planned visit at the beginning of October 2009. At the beginning of November, there were further issues over her attendance at a local school and in relation to her passport.
25. The atmosphere between the parents by this stage appears to have been febrile. During a handover in the early evening of 2 November 2011, when once again the mother appears to have been recording events on a mobile telephone, an altercation took place which resulted in the mother sustaining injuries to her face. The alleged assault (which the father denies) is the subject of one of the allegations in respect of which I am asked to make a finding, and I will return to it at a later stage of this judgment. However, it is a time critical event because, shortly thereafter and in the context of the mother's appearance in the local Spanish court two days later as a result of this alleged assault, she was given permission to return with A to England on an interim basis, thus bringing to an end over a year of "shared care" with the father. The Spanish order, dated 9 November 2009, effectively gave interim residence to the mother in England with contact to the father over one weekend in every month. She returned to this jurisdiction with A on 14 November 2009.
26. The father contends that the false allegations of assault which gave rise to this interim permission in respect of A's final removal from Spain amounted, in terms, to a second "abduction" by the mother. He has appealed his subsequent conviction in the local Spanish courts and, following an unsuccessful first appeal in Spain, he has now taken his case to the European Court of Human Rights where it appears to have been languishing since May 2011.
27. On 3 May 2011, the Spanish courts confirmed its earlier interim orders. Later that month, on 19 May 2011, Mr Justice Peter Jackson accepted jurisdiction on behalf of the English courts and made a wide-ranging raft of injunctions preventing further contact between A and her father until further order. To an extent, they mirrored the relief which the mother had secured in the Spanish court but the orders flowed from a free-standing application which her solicitors had issued on 3 May 2011. At this point in time, the mother and A (with J and C) were living in rented accommodation in England.
28. The mother's application dated 3 May 2011 was the first step in these English proceedings. She was asking the court to accept jurisdiction from Spain and also sought injunctive relief to prohibit the father from posting photographs, reports and articles about the children on the internet as part of what she saw as his campaign against her involving, by this stage, allegations of abduction and parental alienation. By now, as I shall explain, various agencies had become involved following A's disclosure to an independent social worker in March 2010 that her father had hurt her bottom and made it sting. She had also alleged that two men, known to her only as 'Y' and 'Z' had also been involved. (As was subsequently to emerge, similar allegations had been made to the maternal grandmother some five or six months earlier.)
29. The father did not participate in those proceedings. The mother's case is that he was deliberately evading service but was aware that the matter was before the English court in May 2011. There may be truth in that : the father told me that he was still fighting to maintain jurisdiction in Spain and was advised by this Spanish lawyer that to enter an appearance in this jurisdiction would prejudice his case in Spain.
30. The order made by Mr Justice Peter Jackson recorded the court's satisfaction that the father had been served with the mother's applications and had declined to speak with her solicitor when she telephoned him. Accordingly, the orders which the judge made on that occasion were subject to the specific caveat that he was acting on information provided by the mother alone. Whilst the judge was made aware that A had recently been interviewed under Achieving Best Evidence (ABE) procedures, the record of that interview was not then available to the English court from the police.
31. What flowed from the order made on 19 May 2011 was effectively a brake on what the mother was to describe as the father's campaign against her (and I shall say more about this in due course). He was prohibited from approaching her current home or any property in which he might become aware she was living. A's primary school was similarly out of bounds at the beginning and end of each school day without prior written invitation from the school authorities. There was a ban on threatening or abusive letters, text messages, emails and internet postings and all communications were to be through lawyers from this point. He was forbidden to remove A from the jurisdiction or her mother's care. The Spanish contact order was suspended and there was to be no further contact without permission from the court. The father was given liberty to apply on short notice to vary or discharge those orders. No such application was made until February this year, some 20 months later, the father continuing to "fire-fight" on the European front.
32. I have set out in the context of his current application for contact how it is that I now come to be dealing with a substantial fact-finding hearing. In order to understand and set in context the allegations and counter-allegations which are made, I need to return to the time line of events following the mother's return to this jurisdiction with A in November 2009.
B. Overview of events since the mother's return with A in November 2009
33. The mother returned with A to England on 14 November 2009. Since then, A has made her home with her mother, J and C at an address in England. Whilst she was given permission to withhold her address in these proceedings, it appears that the father became aware of where she is living and her address in England appeared as part of the order which was made on 19 May 2011.
34. Over the course of the next year or more until he made his contact application in the current proceedings, the mother alleges that the father has conducted what amounts, in effect, to a campaign of harassment designed to cause her worry, distress and fear. She says that he has become obsessed by the litigation and is driven by an irrational desire to establish to the world at large that she has wrongfully abducted their daughter in bringing her to England. She says his "campaign" (conducted both in Spain, in this jurisdiction, and by means of wide internet publication) has involved her parents, the dissemination of deeply personal photographic images of a sexual nature and a continual and unjustified "bombardment" of professionals and other agencies who have all been targets of his efforts to establish this as a case of abduction and parental alienation. As a result of events in March 2010 when contact between A and her father was terminated, the father's alleged campaign has been diverted towards the re-establishment of his contact with A and the rebuttal of what he contends are wholly untrue allegations of abuse, generated entirely in the child's mind by her mother as part of the process of parental alienation upon which she has embarked.
35. The father makes no secret of the depth and strength of his feelings about his cause. He accepts that he is an active campaigner for Reunite and supports efforts to restore children to parents who have been victims of parental alienation. He vehemently denies the allegations of abuse which the mother makes against him and is as passionate in his own beliefs that it is she who has coached A to say what she has to various third parties, including family members and professionals. He feels let down by the legal systems of both Spain and England. He says he has had bad legal advice in both jurisdictions and has expended vast sums of money on legal costs in trying to recover his position. I was told about a website which he is now using to raise funds to enable him to secure legal representation in these proceedings. Whilst he was represented by counsel for the purposes of the main part of the hearing, he appeared in person when the case came back before me on 16 January 2013.
36. He accepts, to an extent, that he has publicised his cause but denies that such publicity has been designed to target the mother's feelings and/or expose her name to the world at large. To the extent that he has written copious emails to the police, A's school and the local authority (all of which have been put before me), he says he has merely been seeking to establish the truth, to raise legitimate concerns about A's welfare within the home which she shares with her mother and, from time to time, PO and to restore his relationship with his daughter. To the extent that he has made formal complaints about some of the individuals within these agencies, he says that they are properly the subject of complaint. Insofar as he has made allegations to the police that the mother has attempted to pervert the course of justice, he maintains that she has lied and has given perjured evidence.
C. The hearings in Spain following the mother's return to England
37. Following the mother's return to this jurisdiction in November 2009 following the interim order made on 4 November 2011 which allowed her to leave Spain, the Spanish proceedings have been concluded. By that stage, there were before the local court in Spain two sets of proceedings which resulted in further orders relating to this family. The first related to the criminal charges which were brought against the father following the alleged assault on the mother on 2 November 2011 and the injunctive relief sought on the mother's behalf. (Perhaps tellingly, the judgment in the criminal proceedings was subsequently to record the fact that it was not the mother who pressed charges against the father but the local prosecutor [E:211].) The second related to the ongoing divorce proceedings between the parties, the formal dissolution of the marriage and the longer term arrangements for A. I have seen English translations of orders made in the course of these proceedings from which it appears that, to an extent, decisions made in the context of the criminal and civil proceedings – if not conflated – were running in parallel before the same local tribunal on different occasions.
38. Following the hearing on 4 November 2009, the court handed down judgment in relation to the criminal charges relating to domestic violence on 10 November 2010. The translation of the judgment at [2/E:210] records the names of the parties' respective legal representatives and the evidence which was presented to the court by the mother and the father. The case against the father advanced by the prosecution was that, following a discussion with the mother, he had hit her "with her own hand in which she was holding a mobile phone". There followed an account of the evidence which the father gave to the court in which he denied the assault claiming that he had thrown her mobile phone to the ground to prevent her filming a handover involving A who was displaying visible signs of distress. He stated that the mother became hysterical and ran away and that he had subsequently been accompanied by a male friend, PD, when he attended at the home of the maternal grandparents to hand A to her mother.
39. The mother's evidence was that she had been advised to record handovers by her solicitor, that the father had asked her to desist filming and had thrown her mobile to the ground with A in his arms. When she retrieved it and continued to film he had grabbed her, tried to break the phone and subsequently hit her with it.
40. There was before the court on that occasion a medical report prepared by a local hospital doctor some four hours after the event which recorded a cranial trauma and haematoma in the area adjacent to the mother's right eyebrow. A further forensic medical report before the court confirmed the presence of these injuries which subsequently required medical care "in the form of one treatment and 10 days of healing without incapacity". The judgment records in terms the fact that the court considered the mother's evidence and her credibility with caution in the light of the prevailing parental relationship at that time :
"There certainly exists a lot of tension between the parties for the custody of their underage child, in respect of which certain English authorities granted shared custody. A fact which entails that the plaintiff must come to Spain every fortnight to be with the minor child.
The accused declares that, after the complaint, shared custody was suspended and that he has visiting rights only."
41. Recognising the need for caution in those circumstances, the court went on to find the case against the father proven largely on the basis that the mother's evidence, supported as it was by the medical reports, was credible and corroborated. Further, the account she had given had been consistent throughout the preliminary investigations and the court hearing itself. The father was sentenced to 65 days of community service and was forbidden to approach within 200 metres of, or communicate with, the mother for a period of one year.
42. There was a further hearing in Spain in the local court on 30 March 2010. Both parties were legally represented by Spanish lawyers on that occasion. Within the bundles before me was an English translation of the judgment which flowed from that hearing which was handed down some five weeks later on 3 May 2010 [E:224]. Whilst that document records (or purports to record) the facts in issue and the decision reached, there was an issue before me as to whether or not the father was properly represented at that hearing and/or whether he advanced the position which is recorded in that document. He told me that he did not recognise the name of the lawyer who was said to be representing him on that occasion and, further, that he did not understand the proceedings which were conducted in Spanish, a language in which he is not fluent. In particular, he says that whilst it is correct that he did not oppose the dissolution of the marriage, he did not instruct his lawyer to accede to the mother's request that the English courts should take jurisdiction in future for all decisions relating to their daughter.
43. I find this aspect of the evidence somewhat troubling. On the assumption that the transcriber of this document has accurately reflected the content of the Spanish judgment and ruling, it seems clear from the contents that the parents were jointly asking for jurisdiction to determine matters relating to A's residence, maintenance and other matters to pass to the English courts. Under sub-heading (3) of that document appear these words :
"Both parties agree to have decisions regarding their daughter made by the English courts as they consider that she has a special connection with the said state and resides there. Therefore, bearing in mind that the rules regarding jurisdiction provided by the [Hague] Regulation that apply with regards to parental responsibility have the best interest of the child at heart and, specifically, the criterion of proximity, this court will stay all proceedings related to the civil orders that may be made with regards to the daughter of the marriage, the parties to file the corresponding claim before the English courts within twelve months."
The ruling went on to provide that, absent confirmation that the parties had issued the appropriate claims in the English courts within 12 months, either would be at liberty to restore the proceedings in Spain.
44. Given the father's subsequent stance in relation to the transfer of jurisdiction and the steps he has taken to represent A to various third parties and statutory bodies as an "abducted child", it seems – at first blush - highly unlikely that he would have consented to a transfer of jurisdiction at that stage of the Spanish proceedings. His actions in avoiding service of the mother's subsequent English proceedings and his unwillingness to participate in the hearing before Mr Justice Peter Jackson a year later in May 2011 might suggest that the father was being truthful when he told me that he had been advised not to compromise his position in relation to the retention of jurisdiction in Spain by appearing in those proceedings. In his oral evidence, he said in response to questions from the mother's counsel about the various allegations of abduction which he had made to third parties that he did not understand what was going on in terms of what he referred to as "the legal mechanisms". He admits that he made poor choices in relation to his legal representatives and he told me that it was only some time later (he did not say when) that he received copies of the written judgments. He said that at no stage during this period did he believe that the mother had been given permission by the Spanish courts to bring A to England and that his lawyers had told him what the court had decided in Spain but that it was "cloudy … a grey area".
45. Pausing there, I have to contrast that evidence with what he said in his interview with the police less than a month later. Having flown back to England when he learnt that allegations of sexual abuse were being made against him, he attended C House in I where he was formally cautioned and interviewed by two police officers, from one of whom I heard evidence. During that interview he was asked about the Spanish divorce proceedings and he gave this account : [2/F:122]
" … it was a little bit frustrating because … we went in there and … the judge – we'd literally gone in there for about two minutes. …I'd had my translator there, and LMD had a translator. Once again, she … anyway …yeah, a translator there, and they basically said … that they're handing over the jurisdiction for, for custody of A [sic] to the UK court … but they would deal with the divorce … ".
46. Whilst the father's point to the police in his interview appeared to be that he had received advice that the divorce could not be finalised in Spain until they as parents had agreed arrangements for their child, he was not taking issue with the outcome of that hearing. That would suggest that, at least as far as arrangements for A were concerned, the father was aware when he flew to this country to deal with these allegations that the Spanish courts had already ceded jurisdiction to England.
47. I shall return to my findings about the father's and mother's credibility generally at a later stage of this judgment.
48. Notwithstanding his reluctance to engage in the 2011 proceedings in this jurisdiction following the mother's return from Spain, the father now accepts that the English court is properly seised of matters relating to A's future wellbeing. On 1 February last year (2012), the father issued his contact application. I have already described the course of this stage of the litigation over the last ten months. As we began the fact-finding hearing, there had been no contact between the father and A for almost nineteen months, a significant period in this young child's life. I have already commented upon the fact that this fact finding hearing was delayed by some three months from mid-July this year because of the unavailability of a potential witness.
49. As to his appeal to the European Court of Human Rights in relation to his conviction for assault as decided by the Spanish court, it appears that little has happened to resolve matters since May 2011 despite the father's attempt to initiate progress.
D. The evidence before the Court
50. Before me for the purposes of this hearing were five bundles of documents, including material which was produced following the disclosure orders against S County Council (the relevant authority in relation to social services), the police and B Primary School (which A has been attending since her return from Spain in November 2009). Whilst much of this material was explored during the course of oral evidence, I have since had an opportunity to read and re-read the entire contents of the bundles. Mr Lewis produced a further supplemental bundle of emails passing between the father and his legal representatives between 14 December 2009 and 6 January 2010, a period of about three weeks which encompasses the difficulties surrounding contact over Christmas and the New Year following the mother's return to this jurisdiction. I have read this bundle in its entirety notwithstanding the fact that I was only referred to very few pages.
51. Over the course of the hearing, I heard oral evidence from the mother, the father and four additional witnesses :-
(i) Mr Paul Fitzpatrick, an independent social worker who was originally instructed by the mother to prepare a report on A's circumstances for the purpose of the Spanish proceedings and her application for a transfer of those proceedings to this jurisdiction;
(ii) Mrs Y M, A's maternal grandmother;
(iii) Detective Constable Rachel Lumb, a member of the English police Child Protection Team; and
(iv) Mr Valentin Dancui, the social worker responsible for the family following the referral after A's alleged disclosures.
52. The first three of these witnesses were called to give evidence about the precise nature of and circumstances in which A is said to have made allegations of some form of sexual abuse by her father.
53. I also heard evidence from Mrs W K, the mother's solicitor, over a telephone link with the court. Notwithstanding her status in these proceedings as the mother's adviser, she assisted me on a factual issue relating to the existence or otherwise of emails which might confirm certain instructions her client had given (and I shall need to return to this later). She was also asked some questions about her attempts to negotiate Christmas contact following the mother's and A's return to England in November 2009.
54. In order to address these issues, I propose to set out the relevant time line in relation to these concerns as it developed during the course of the evidence. It is necessary to look closely at the chronology of events as they unfolded because the chronology has the potential to inform a contextual understanding of whether in fact there may be some substance in the father's allegations that the mother has planted the seeds of the disclosures which A has made.
E. The allegations of sexual abuse
55. As part of her evidence in these proceedings, the mother has set out at some length the chronology of contact between A and her father following the child's return to England in November 2009. The first part of that chronology was set out over eleven pages in her statement dated 16 May 2011. In the father's absence, that provided the evidential basis of the injunctive relief which was granted by Mr Justice Peter Jackson some three days later. The second part of the chronology is set out in an exhibit to her statement dated 31 May 2012 made in response to his current application for contact. That, in itself runs to six further pages, albeit that there is an element of duplication. Thus, over 17 pages of detailed chronological notes (some the content of which was the subject of challenge), I have the backdrop to the complete collapse of the parental relationship over the course of two years and eight months from July 2008 to May 2011. At the start of that period, A was almost 3 years old. By the end of it, she was 5¾ years old. It covers the period of almost a year during which the parties were attempting to operate the shared care regime which had been put in place following A's return to Spain in mid-November 2008 pursuant to the agreement which was put in place to resolve the Hague proceedings. It goes on to cover the 18 month period following her return to England at the beginning of November 2009 and, crucially, the events as they unfolded around her various disclosures to the mother and other third parties. It provides a road map to the evidence on which the mother relies in support of her written schedule of allegations in respect of which she seeks findings at the conclusion of this process.
56. What emerges clearly from the chronology (even where matters are in issue) is a picture of escalating mutual suspicion and hostility. The mother's hostility towards the father flows from what she perceives to be his relentless pursuit of denigration and intimidation. The father's hostility is directed towards the mother because of what he sees as her failure to adhere to contact arrangements and her attempts to marginalise his role and status as a parent to A. He told me, and I accept, that throughout the first three years of her life in Spain (which was effectively the only home she had known), he played a full role in A's life as a "hands on" father. I was shown a small volume of photographs which demonstrates quite clearly the lifestyle she enjoyed in Spain and the happiness she appears to have found in her father's company. Some of these photographs were taken during the period of "shared care" with the mother after the parties had separated.
57. At this juncture, it is important to recall that the mother's case (and her open position) until March 2010 (when the independent social worker became involved) had been to support contact between A and her father. In the case statement which her Spanish lawyers submitted to the court in Spain on 16 July 2009 (from which flowed the interim permission to return home in November that year), these words appear in the approved translation [2/E:184] :-
"H. Ease of exercise by the father of visiting rights in England :
My client [ie. the mother], as has been indicated, considers regular contact with her father to be fundamental to the wellbeing of A.
The private and professional circumstances of the defendant [ie. the father] enable him to be able to exercise extended visiting arrangements, as much in England as in Spain, meaning that A's move to England would not imply any breaking-off or deterioration of her relationship with her father."
58. The Spanish interim order made on 4 November 2009 conferred on the father shared parental authority and "visiting rights" over one weekend at the end of each month [2/E:209].
59. The mother remained in Spain with A for ten days after that hearing, delaying her departure until after the father's staying contact with their daughter at his home in Spain.
60. I heard evidence about the attempts which the mother had made through her solicitors to establish contact for the month of December 2009 following her return to England the previous month on the basis of the interim permission given by the Spanish court. I saw the exchange of correspondence between the solicitors in the weeks leading up to Christmas. Following the mother's return, the father re-instructed Dawson Cornwell who, on 19 November 2009, wrote asking for the mother's proposals. On 1 December, the mother's solicitors replied making various complaints about his behaviour (instigating internet postings, contacting PO's place of work and making various threats by email and telephone). In relation to contact, they said this :
"In the light of this behaviour our client questions whether your client has had some sort of breakdown, she is anxious for A to have some sort of contact with her father but not if his distress and mental health will cause her harm emotionally. Our client is committed to maintaining contact but we do require your client immediate reassurance [sic] that he will not mention our client her family and partner in derogatory terms and he will not act in any way which will alarm or distress A."
61. On 6 December 2009, the mother gave her solicitors instructions to put forward a proposal that contact should take place once a month for a weekend and then build to a regular pattern of contact from there. She insisted, however, that handovers would need to be managed given the background history between the parents. To this end, she was looking into the availability of local contact centres at which handovers might take place.
62. On 18 December 2009 there was a proposal from the mother that contact at Christmas should take place over the course of two separate days on 26 and 27 December. There is an issue as to whether or not the father's solicitors received this letter. There was a telephone conversation between the two solicitors (the father having now employed the services of a firm called Draycott Browne on the basis that Dawson Cornwell were then outside his financial reach). Because of a combination of an alleged breakdown in communications, the father's pre-arranged travel plans and the weather, contact did not take place as suggested on Boxing Day or the following day. The father has suggested that this was as a direct result of the mother and her solicitors deliberately sabotaging the arrangements. I do not accept that as a fact, although I am prepared to accept that it may have been his subjective perception of the situation. I heard evidence from the mother's solicitor, Mrs K, that the mother was actively giving instructions to arrange the contact dates. She told me that she remembered quite clearly having to miss part or all of the office party because she was trying to finalise the arrangements and secure confirmation from Spain of the father's agreement. I accept that evidence.
63. It seems to me that these difficulties flowed from a failure in communications. Whatever the father's misplaced perceptions as to conspiracy theories, I can see from the small bundle of emails which he has produced that he, in his turn, was making every effort to finalise arrangements and elicit a response from the mother's solicitors. On 23 December 2009, he sent an email to his English solicitor in these terms :-
"With regard to your text message, there have been no phone calls received from LMD's lawyers.
I will travel down to wherever in the UK on 26th and I request staying contact. NOT just a few hours. The interim order does not say the last weekend in the month. It states one weekend. I would like my daughter to see her paternal family in England so request that A stays with me for two weekends as it would not be safe to drive two 12 hour round trips in one weekend.
I also have bought ANOTHER child friendly phone for my daughter for my use of regular contact and would like the mother to agree to allowing me to call her when in her care. I do not understand how this situation has been allowed to occur. I have done absolutely nothing wrong.
This is heartbreaking as you can quite imagine."
64. On 26 December 2009, he sent a joint email to his English and Spanish lawyers informing them of a telephone call he had with A on Christmas Day whilst he was staying at his mother's home in England. Having recounted the pleasure he had in hearing her voice, he raised a concern about her reference to the fact "Mummy and J hate daddy". She also said that she loved him and could not wait to see him.
65. The mother was asked about that telephone call. She accepted that A had told her father that she loved him but denied the remainder of the conversation.
66. Pausing there, I remind myself that these emails are the father's confidential and privileged communications with his lawyers. In the normal course of events, they are not documents which would have been presented to the court or in respect of which privilege was likely to have been waived.
67. The email of 26 December 2009 also makes clear that the father was still in ignorance of the arrangements relating to contact and had undertaken the six hour drive to England "in the slightest chance that I could see A". He had made contact with an emergency out of hours social worker who, upon contacting the mother, had told him that she was expecting him to have A from 10am that morning. It is quite plain to me, and I accept the father's evidence about this, that he had not been informed that these were confirmed arrangements. Whether or not the fault lay with his solicitors, I do not know and it matters not.
68. There was then a proposal from the mother for contact from Friday 1st January to Monday, 4th January 2010 which the father was unable to take up because he had to return a hire car. He asked for overnight contact between 7th and 9th January 2010 on the basis that the father would be staying at an address in Norfolk. Finally, contact did take place from Saturday, 10 January to Sunday, 11th January 2010. It was at the end of that period of contact that the father returned to the mother with A's bag a child's mobile phone (called a "Teddyphone"). He sent it with a note informing her that he intended it should be used for the purposes of enabling A to speak to him between periods of contact. Such was the level of mistrust and hostility between these parties that the mother made enquiries and realised the device was capable of sending a GPS signal which might have enabled the father to trace her whereabouts (and at this stage he did not know where she was living). She told me that she was so concerned that she drove with the device to another location before dismantling it. I was shown during the course of the hearing a similar device and there are within the bundles operating instructions which confirm the capability of the device to trace the whereabouts of the device. The father denies he had any such intention and wanted simply to facilitate contact with A. He told me that he had supplied mobile telephones on previous occasions but none had been made available for the child's use. I shall come back to this aspect in due course.
69. By a letter dated 22 January 2010, the mother's solicitors complained about a number of matters relating to what she perceived as continuing harassment and specific reference was made to the "Teddyphone".
70. At the beginning of February, the father's English solicitor wrote to the mother's solicitors suggesting overnight contact over four days on specified dates in February, March and April 2010. She responded through her solicitors on 9 February 2010 agreeing rolling dates which included three separate tranches of overnight staying contact over two day periods between then and Easter. The correspondence continues to record ongoing irritations (the father's referral to the Law Commission of the issue of the mother's public funding certificate, the use of the "Teddyphone" as evidence in the case, the absence of maintenance payments as ordered by the Spanish court).
71. The father took up the overnight weekend contact at the end of February 2010. Thereafter, all contact ceased as a result of what the mother's solicitors described in a letter dated 31 March 2010 as "some serious allegations against [him] to an independent social worker". That individual was Mr Paul Fitzpatrick who had been instructed by the mother to prepare a report in relation to the ongoing proceedings in the Spanish court which was due to consider her application (on a final basis) to transfer all future welfare issues relating to A to the English court.
72. In terms of how the two periods of contact went from the father's perspective, I have some insight from the emails which he sent at the time to S Social Services. His communications with them had been initiated at the beginning of December 2009 as he had no information as to where his daughter was living at that time. Thereafter, he sent several emails raising a catalogue of complaints against the mother, her attitude to contact and the injustice which had been done in the Spanish court.
73. In an email dated 11 January 2010 (following the first period of UK contact which he describes a lovely time together), he recounted that A had said several times that she wanted to return home to Spain, that she missed everyone there and that her mother had told her she should not call him Daddy anymore. He describes how she was distraught when her mother came to collect her and clung to him, sobbing. There is a further entry on social services log dated 4 March 2010 which records an email sent by the father relating to the contact which took place on 27th to 28th February 2010 (the last contact). He said that on this occasion, A had pointed him out in the car immediately to the person who was undertaking the handover. She told him she had started school. He recounts another wonderful day but an unhappy separation at the return handover when she became distressed to leave. He told social services that he had requested Easter holiday contact in Spain so that A could spend time with her paternal family and her friends whom she missed.
74. I have set out the background to this period and the contact which took place in this jurisdiction following the mother's return because it is highly relevant to the issues which I have to decide. It is at this point that the time line of A's disclosures becomes critical.
75. The letter which was sent to the father's solicitors on 31 March 2010 refers in terms to a "short term suspension of contact" whilst investigations were undertaken by social services who had become involved as a result of the referral by Mr Fitzpatrick. There is no response to that letter in the exhibit bundle and I cannot gauge the father's immediate response from the contents of his small bundle because it ends with an email dated 2 March 2010.
76. I gain some insight into the father's reaction from the local authority's own records. It appears that the father had a telephone conversation with the area manager, David Johnston, on 1 April 2010 and confirmed that he was aware of the referral from the independent social worker. He, the father, immediately requested a meeting. That meeting took place in the local authority's offices on 28 April 2010. The father flew from Spain to attend the meeting. He explained that he had attended the local police station that day to give a statement. He also provided a number of reports, emails, character references and photographs of A in his company.
77. On behalf of the mother, her counsel contended that her willingness to become engaged in arrangements for contact after she returned to England from Spain is persuasive evidence of her commitment to ongoing contact and a contra-indicator to the father's allegation of parental alienation and/or coaching.
78. In the context of her stance on overnight staying contact, it is important to remember that, whilst the disclosure to Mr Fitzpatrick may have been the catalyst for the investigations which have resulted in the cessation of contact, it was not the first such disclosure which A had made. In fact, according to the evidence of both the mother and the maternal grandmother, the first such disclosure (although they did not treat it as such) was made to Mrs M the maternal grandmother, in August or September 2009, some six months before Mr Fitzpatrick's involvement in the case. It is also important to note that nowhere in the documents presented to the Spanish court or in the inter-solicitor correspondence is any reference made to any concerns on the mother's part in relation to A's safety in her father's care and/or to that initial disclosure in the late Summer of 2009 operating as an impediment to staying contact.
79. The reason for that absence was explained in both the written and oral evidence. The mother and Mrs M both told me that neither attached any significance to what A had said in terms of an allegation of sexually inappropriate behaviour.
(i) The first disclosure : August / September 2009 (some two months or so before the mother's return home to the UK pursuant to the interim leave granted by the court in Spain)
80. I am going to refer to what A is reported to have said to various individuals in terms of the sequence of "disclosures". I make it plain at this stage of my judgment that I use that word with its neutral connotation; I am not referring to disclosures as specific evidence of findings of abuse. It is important to trace the chronology of what A has said, to whom and when, and this is no more than a convenient term to use.
81. As to that first disclosure, the circumstances – on the mother's case - were these.
82. The parties were still operating under the shared care regime which had been put in place when the mother agreed that A should be returned to Spain in November 2008. The mother and C (who was then 8 or 9 months old) were staying in her mother's home in Spain for the purposes of "her" two weeks of the shared care arrangement. The mother had been out with A who had wet herself. On their return, Mrs M took A to the bathroom and was assisting her to put on clean underwear. She said she was sore. She then said to her grandmother,
"When I stay with my daddy he pokes his fingers in my bottom and I don't like it and it hurted me and it stings me."
Mrs M also says she said that her daddy had put his finger in her bottom and there was "pooh" on it.
83. Mrs M's initial reaction was to link what she had said with difficulties from which the child had been suffering as a result of problems she had been experiencing over some time as a result of constipation. She told A that she had been a nurse and could help to make things better if she could look at her bottom and apply Vaseline. A then started to cry and said she did not want her grandmother to do that as she would do what daddy had done and it would really hurt. They went upstairs and A did allow her grandmother to look at her bottom from which she could see that her bottom and genital area looked inflamed and sore. She applied Vaseline and helped A to put her pants back on.
84. Mrs M immediately told the mother what had happened. She said her daughter responded by asking why the father would have done that given that it could be dangerous. Mrs M told me that neither of them thought that there was any issue of abuse but she knew her daughter had contacted her English lawyer as a result. That was as far as that incident went as far as Mrs M was concerned.
85. She was asked in cross-examination why, with her training as a nurse, she had not considered the possibility of abuse. She said she could not explain why it had not rung "dreadful, dreadful bells". She had just wanted to make A comfortable. She said,
"I didn't take it that anything had happened."
86. The mother said in cross-examination that the conclusion she and her mother had reached was that A may have been constipated and the father had tried to insert a pessary with his fingers. Whilst she knew it would have been wrong, she told me that there was absolutely no reason for them to have made a report to the police or anyone else as "we did not resonate it was sexual abuse". She told me, "We thought he might have been trying to loosen things up to help with her constipation. That is what I thought at the time."
87. That explanation has to be seen against the background of a run of emails which the mother sent to her solicitors in November 2008, some nine months earlier. Those emails were sent a matter of days after she had agreed the consent order which resulted in the resolution of the father's earlier Hague abduction proceedings which saw A's return to Spain on the basis of the shared care regime. On 7 November 2008, Charles J had approved a consent order which provided for A's return no later than 4pm on 16 November 2008.
88. A week later, the mother sent an email. It is dated 23 November 2008 and is addressed to her solicitor, Mrs K [1/C:262]. In it she referred to a conversation she had just had with J who had said that he and A "slept in SMD's bed every night when they were in Spain, they use[d] to first of all watch a DVD for a few minutes and then they would all sleep together. He then said 'I thought it was ok because SMD said he's not a liar, but he did tell me not to tell mummy'." She continued, "Does this explain his obsession with J ? and other children ? bearing in mind we first slept together when I was 15 and SMD was 26 !". She added a postscript, "ps one more thing his young niece used to be obsessed with him, and his mum told me that when SMD's niece was younger she liked sniffing SMD's boxer shorts".
89. On 25 November 2008, two days later, she sent her solicitor a further email [1/C:263].
"I have been talking to mum and the more I think about it, the more I do have grave concerns about SMD. I have always thought something wasn't right but it's one of those things you think 'I shouldn't be thinking this way' and have ignored it. But the more I think about it, the more it doesn't seem normal. My mum agrees she has been thinking things seem a bit odd also. But I am worried to put J through anything which will cause him further distress, but I can't ignore the fact that my daughter is living with this man."
She then set out again the conversation she had had with J about sleeping in the father's bed, the subject of her previous email, and continued,
"Other things I think of that in the past I've shrugged off :
SMD's always been close to children or young teenagers. I was 15 and he was 26 the first time we slept together, and he cheated on me with a girl much younger than him, and has since had young girlfriends.
He has always been involved in one way or another with kids, he was a swimming coach to kids, and has kept loads of pics and drawings from kids when he was a lifeguard at Pontins, they were thanking him for teaching them to swim. He also wanted to be a driving instructor but didn't get his licence because of speeding !!
SMD's mum told me his niece has always been obsessed with SMD, and when she was 12 she used to take his boxer shorts and sniff them. D, SMDs [sic] mum said she had 3 uncles but it was always SMD she would obsess over.
He has a close relationship with the staff at M A school and is always trying to get involved with them. Now he is forbidding my parents to pick A up from nursery, which is something they did on a regular basis when I lived in Spain. He can't justify it to them when they ask why not. Is it because he likes going to see the little kids ?
In his "D character reference" from his second affidavit it says that not only did SMD play with his children he used to get in and play with all the other children there.
At J's school play at M A s (A wasnt [sic] in it. SMD sat on the front row and had a huge professional camera and snapped away throughout the whole show, not only taking pics of J but of other kids also.
W, I know this sounds completely sick in the head, and yes I could be letting my imagination run wild, but it isnt [sic] normal behaviour. It may explain SMDs [sic] obsession with J, and why J used to get upset going to see SMD, and why J got into a state when SMD wanted to take him and A out when he came to England in July.
Im [sic] not asking you to respond to this immediately and I have spoken to L, but I am concerned !!....."
90. The following day, on 26 November 2008, the mother sent to her solicitor a further email which included the following passage [1/C:265]:
"I have just spoken to A on the web cam, i asked her if she sleeps in her princess room at daddys house and she said no she sleeps in daddys bed … im not happy about this, but there's nothing I can do is there ?"
91. With that email, the mother also forwarded an email which she had received from her own father on the same day, some 12 minutes earlier. Its subject was, "that bastard down the road". The email recorded difficulties which the maternal grandparents were having in agreeing contact times with A. It appears that they were unhappy with their visits of one hour. The father made it plain, according to that email, that he did not wish A to witness a row between him and her grandparents. Mr M threatened to start legal proceedings on the basis that he (the father) did not have rights of custody and was not entitled to limit their visits. "There is no way mum and I can afford lawyers but by God he is not going to get away with this." There is then a reference to "Mum" (ie. the maternal grandmother) asking A whether she slept in the yellow room, to which she said that she slept with daddy.
92. Five days later, on 1 December 2008, the mother sent a third email to her solicitor. Having complained about difficulties in relation to her parents' contact and her own telephone contact with A, she said, "SMD is being a bastard …." and "I also don't like the fact he could be a child pervert (sorry to be blunt)".
93. Those emails were forwarded together to the mother's English solicitor, W K, on 9 July 2009 over a period of 4 minutes. She produced them in support of her contention that her concerns regarding the father extended back to a period prior to the disclosures which A made to her mother and the ISW, Mr Fitzpatrick [1/C:252].
94. During the main part of the hearing in October 2012, neither party's counsel referred the mother to the content of these emails. When I came to review all the evidence for the purposes of writing my judgment, I was concerned about the apparent inconsistency between what the mother had originally told me about her lack of reaction or concern at A's first disclosure to her grandmother and the strength of feeling and concern which appears to underpin the suspicions recorded in the text of those emails. When the mother was recalled at my instigation in order to deal specifically with these matters, she told me that whilst she regarded the father's behaviour as very odd, there had been no disclosures at that stage and she had been advised by her solicitor that she had to be very careful before making allegations of this nature when there was no evidence to support any wrongdoing on his part. She told me that her life at this time was far from straightforward in that she was travelling backwards and forwards to Spain and "it was not a case of jumping from one scenario to another". She said that she had listened to what her mother had reported in the context of A's difficulties with constipation in the past. She was aware that her mother had been assisting with those difficulties. She told me that she had spoken to her solicitor for advice at the time and, with the benefit of hindsight, her lack of reaction at the time was a fact which gave both the mother and grandmother significant cause for concern.
(ii) The second disclosure to Mr Paul Fitzpatrick on 13 March 2010
95. The father's second period of contact in this jurisdiction took place at the end of February 2010. (It was to be his last.) It took place, as the mother's chronology demonstrates, against the background of escalating tensions between then. There had been the "Teddyphone" incident in January that year. Later that month, the mother was contacted by Social Services after the father had apparently made a complaint about PO's aggressive nature and his presence in A's home. He was also asking that she underwent a psychological assessment. Publicity was continuing in the local Spanish press and, on 15 February 2010, the mother was contacted by the Benefits Agency following what she alleges to be a complaint instigated by the father (which he denies). On the same day she had received a letter from the Legal Services Commission (dated 11 February 2010) which attached an email from the father to the LSC recording his objections to the public funding certificate which entitled to mother to legal aid.
96. On 8 March 2010, and in preparation for the forthcoming hearing in Spain, the mother's solicitors instructed Mr Paul Fitzpatrick, an independent social worker, to prepare a report to assist the Spanish court. Having set out the background, the letter went on to address the specific issues with which the Spanish court would be concerned at the hearing scheduled for the end of that month.
97. Nowhere in that lengthy document is there any reference to the mother's concerns about the father or the nature of his relationship with A. Mr Fitzpatrick confirmed to me during the course of his oral evidence that he had not been made aware before he met with A that she had previously made some form of disclosure to her maternal grandmother or, indeed, to anyone else.
98. As his report of 17 March 2010 makes clear, he saw the mother, PO and A and J over several visits undertaken at various stages of the day between 11 and 13 March 2010.
99. On 13 March 2010, on his second meeting with A, he had been using a range of small animal toys to understand how she perceived the dynamics of her family and the adults within it. During the course of that meeting, Mr Fitzpatrick reported matters of note. A expressed fear about having witnessed her father breaking her mother's mobile 'phone, hitting her in the face and chasing her. She also told him that, "when she has contact with [her father], he hurts her bottom and makes it sting". She further alleged that two men (whom she knew as 'Y' and 'Paul') had also hurt her bottom and made it sting. [2/E:141] This had also taken place during contact. That account is recorded not in Mr Fitzpatrick's report but in a letter dated 18 March 2010 which he wrote to S County Council by way of a child protection referral, having failed to reach them on the telephone [2/E:140]. In his letter, he set out the context of that remark, namely that A had been made to sleep in her father's bed without a nappy on, even though she was not dry at night, and this had distressed her.
100. Mr Fitzpatrick was asked about the circumstances of this disclosure when he gave his oral evidence. He told me that he felt that she was speaking to the limit of her ability, bearing in mind her age, but he did not have a sense that her words were "coached". He felt that she was telling him what she wanted to say and appeared quite credible throughout. He had made some brief notes as she was speaking which he had written up in his car some ten to fifteen minutes afterwards. He told Mr Lewis, the father's counsel, in cross-examination that he had been with A for about an hour when she had made these statements to him. He accepted that he had not met or spoken to the father for the purposes of his report and was unaware of both (i) the previous disclosure made to the maternal grandmother in August / September 2009, and (ii) the father's allegations that the mother was deliberately planting these thoughts in A's mind so as to alienate him from her life. He was, nevertheless, aware that the dispute between these parents was acrimonious.
101. When pressed, Mr Fitzpatrick said that, had he known about any prior disclosures, he would have wanted to be clear from the start whether the work he undertook should have gone ahead in the way he carried it out. He said he might have chosen a more neutral setting away from the home and the mother's presence, such as a school environment. He had not been expecting a disclosure of this nature and, had he been aware of this as a possibility, he might have wanted to focus on a situation where he could be sure that he had eliminated the possibility of any contamination factor. He reaffirmed that, in all his discussions with the mother prior to his second meeting with A, she had not mentioned any previous disclosure.
102. Just over a fortnight later, the mother and father attended the hearing in Spain as a result of which jurisdiction was ceded to the English court although judgment was not handed down until later in May 2010. Nothing was placed before the Spanish court in relation to the concerns raised by Mr Fitzpatrick following his meeting with A on 13 March. The mother was subsequently to confirm in a police interview that she had deliberately withheld any reference to the ongoing investigation in England in case it had been misconstrued, coming in such close proximity to the final decision on jurisdiction in Spain. Her view, as stated to the police officer, was that she would just get back to England and sort matters out from there [2/F:239].
103. However, in accordance with standard child protection procedures, A was interviewed by S police on 8 April 2010 in accordance with ABE guidelines.
(iii) The third disclosure made, again, to the maternal grandmother
104. Before dealing with the ABE interview, I need to record the facts surrounding the second disclosure which A is said to have made to her grandmother in March 2010. It is not clear whether this occurred before or after the involvement of Mr Fitzpatrick and Mrs M was unable to assist me on the precise date. She deals with this episode in paragraph 9 of her statement dated 10 July 2012 [1/C:113]. She says that she had come to England to look after the children while the mother was in Spain for a court hearing. This would place the disclosure at some point between 25 and 30 March 2010 and, if this is right – as it must be, for that was the only court hearing at the relevant time – it comes after Mr Fitzpatrick had referred the matter to social services but before the ABE interview.
105. Mrs M was bathing A when, out of the blue (as she describes it), she told her grandmother "what her daddy had done with his finger". She says, "it was exactly the same as she had described to me in the summer in Spain". The reportage was relayed to the mother by telephone on the basis, as Mrs M explained, "This time something clicked".
106. Approximately a fortnight later, A was interviewed by the police.
(iv) The ABE interview on 8 April 2010
107. I was provided with a disc containing a video recording of this interview which I have now watched in its entirety on three separate occasions. (There is a transcript in the bundles at [2/F:150-183]). I also heard evidence from Detective Constable Rachel Lumb who conducted the interview with A. Subsequently, she also interviewed the father.
108. The interview took place in C House; the recording was supervised by Mr Dancui, the designated social worker.
109. DC Lumb confirmed to me that, despite her five years of experience in this field, A was at the younger end of the spectrum of children who would be considered for this type of interview and was – in fact – the youngest child she had ever interviewed. She said that it was a difficult interview (she described it as "hard work") and accepted that she was not able to elicit the information she needed without using closed questions (which, in this context, can properly be described as leading questions). At the time she conducted the interview, the only previous disclosure about which she was aware was that made to Mr Fitzpatrick.
110. She described A as a fidgety young girl who was easily distracted. She would frequently look at the floor and carry on doing something else other than concentrating on the questions she was being asked. When Spain or "Daddy SMD" was mentioned, she would often become more rigid and reject eye contact as if she clearly did not want to continue that conversation. This, to DC Lumb, was suggestive of something difficult or unpleasant that the child was recalling. Overall, the officer did not form the view that she was simply reciting words, expressions or phrases which had been fed to her.
111. Asked for her view, DC Lumb told me that, as a team, "we cannot rule out 100% that something has happened" and that her own view was that "something (she could not say what) may well have happened".
112. Turning to the content of the interview itself, what A actually disclosed on that occasion is as follows (and I reproduce the relevant parts of the transcript) [2/F:157-159] :-
"Q. … And daddy P have you got another daddy ?
A. Um, yeah.
Q. Who's that ?
A. He was mum -- he was nasty to my mummy, because he thrown his phone [demonstrates with her hand] and he, um, he hid it in his, he put it, clipped it on mummy's eye and it was right purple. [Points to under her left eye].
Q. …. What's daddy's name ? Can you remember what daddy's name is ?
A. SMD.
Q. SMD, oh, okay.
A. And he's nasty to mum.
Q. Okay. Is daddy SMD nice to you or nasty to you?
A. Nasty to me because he, he just, um, just put the finger in my, in there [puts her hand under her skirt and between the tops of her legs].
Q. MMm-hmm.
A. And like, and it hurts.
Q. Okay. Where are you pointing to ? Is that your front bottom or your back bottom ?
A. Back bottom.
Q. Okay. And do you know the difference between your front bottom and your back bottom ?
A. No.
Q. Okay. Is it where you have a wee or a pooh from ?
A. Pooh and a wee.
Q. A pooh and a wee. So which one did daddy SMD put his finger in ?
A. Um, this one [holds up her left index finger].
Q. Oh, that finger. Okay. And why was he doing that ?
A. Because he really wanted to.
Q. Oh. Did you want him to do it ?
A. [shakes her head]
Q. Oh.
A. And then he put his finger in it and like I hold off and I couldn't and, um, I needed a wee and I couldn't hold it up and when he put his finger in it [puts her finger under her skirt and between the tops of her legs] ---
Q. Mm-hmmm.
A. --- the wee wee come on his finger.
Q. Oh dear. Well, that's not your fault is it ?
Q. No. And how did that feel when Daddy SMD did that ?
A. I don't know again.
Q. Was it okay or did it hurt ?
A. It hurt.
Q. Oh. And did you have time to tell him to stop ?
A. Yeah.
A. About, about minutes of 100, saying, "Stopping, stopping, stop, stop, stop, stop", and he wouldn't stop.
Q. Why wouldn't he stop ?
A. Because he just wanted to put his finger in it.
Q. Oh. And what did he do with his finger when it was in your – was it in your bottom or your front bottom ?
A. [Points to her bottom]
Q. In there. In your bottom. What did he do with his finger that was in your bottom ?
A. I don't know.
Q. Did he wiggle it around or did he hold it still ?
A. I think she just needs --- I think I want to see my mummy."
113. After a short break during which DC Lumb and A were playing with the toys, the following exchange took place [2/F:160-161] :-
"Q. Okay. Where were you when daddy SMD put his finger in your bottom ?
A. Um, in the house.
Q. Whose house ?
A. Um, daddy SMD's house.
Q. Okay. And where's that ? Was that here or in Spain ?
A. In Spain.
Q. Oh, that's a very good remembering. Was there anybody else there?
A. Nope.
Q. Nope ?
A. But there was. There was one child ---
A. --- and it was called Bobby and he's, he's, and he's, and he's a doggy and he has a little body. [Indicates with her finger and thumb]
Q. … Were there any grown-ups there ?
Q. Nope.
A. But daddy SMD was a grown-up.
Q. He is a big grown-up, isn't her ?
Q. And how many times has Daddy SMD put his finger up your bottom ?
A. Um, 21.
Q. 21 times ? Do you know how many 21 times is ?
A. I can count to 21.
A. One, two, three, four, five, six, seven, eight, nine, 10, 11, 12, 30. 40, 50, 60, 70, 80, 90, 20, 21."
Later, at [2/F:163-164] :
"Q. … What does daddy SMD do ?
A. Daddy didn't put his finger in it, just do something to me. He just pushed me like that [holds up arm up and points to the wall] ----
Q. Yeah ?
A. --- in the, in the whole circle.
Q. Yes.
A. And then I went down there [bends over and points to the floor] ---
Q. Oh, he pushed you over ?
A. --- and then it all stopped.
Q. He pushed you over ?
A. Yeah, I was stuck.
Q. Why did he do that ?
A. Because he wanted to and now I am safe.
Q. You are safe now. You are very safe now, because you're with mummy, aren't you ?
Q. Okay. So has daddy SMD ever done anything else nasty apart from that ----
Q. --- that I should know about ?
A. That's, that's, that's the end."
114. A asked to see her mother. When she returned to the interview suite about a minute or two later, DC Lumb asked her about bedrooms in her houses. She said she had "a princess bedroom" and that J had a bedroom next to hers. She described her bed as having hearts on it. She was pressed by DC Lumb about whether she had her own room when she stayed with her father and she confirmed that she did : it was a pink room.
115. She was asked a direct question about whether she knew "daddy's friends". She denied knowing anyone called Y or Z but later said that Z was just "a man… he's daddy's friend". Later on in the interview, she was asked about wearing nappies at night time [F:177].:
"Q. … When you stay at daddy SMD's do you wear nappies in bed when you're at daddy SMD's ?
Q. No ? Why not ?
A. Because if he doesn't have any nappies I wee on him.
Q. Oh, okay. Does he sleep in your bed ?
Q. Oh, okay. Who sleeps in your bed ?
A. Nobody."
Later, when pressed again about knowing anyone called Z (which she said she did not), A was asked,
"Q. Has he [Z] ever done anything nasty to you ?
Q. Has he ever put his finger in your bottom ?
A. He has.
Q. He has ? Why did he do that ?
A. Because, because he wanted to, remember ?"
At the conclusion of the interview, when DC Lumb again asked A whether it was right that "daddy SMD" puts his finger in her bottom when she went to stay, A said, "I just need to go to my mummy now because I want to see her."
116. Some two and half months after this interview, DC Lumb was involved in a further interview with Mr Dancui. This time, J was its subject. The interview took place on 18 June 2010. Although I do not have a DVD recording or written transcript of that interview, I do have within the bundles a report log within the disclosure provided by S police [5/K:66]. J confirmed that he had been involved in the shared care arrangement in Spain, spending three nights a week with each of the mother and the father. He refers to good times playing in the swimming pool and on the scooter. These words appear in quotation marks within the short log report :
"The one thing I did not like was at bed time when SMD used to come and say come to my bedroom". The report continues 'SMD insisted until [J] (his name is redacted) went to his bedroom. [J] asked to sleep next to A but SMD would say no and would sleep in the middle. We used to watch DVD's and SMD told us not to tell mum. [J] will wear long trousers and A will have a nappy on or a pyjama. SMD would wear boxers. SMD used to pull [J] closer to him and keep him close. When mum and SMD lived together they used to have arguments. He hit my mum said [J]. SMD used to hit [redacted] sometimes in front of [redacted]. SMD would video when we went to his house. He was not a good dad because of the way he treats everyone. SMD hit my mum and told nasty things to my granddad. This made me feel upset. [J] began to cry when the interview reached this stage ….'.
117. Whilst Mr Dancui was not challenged by the father's counsel as to the accuracy of what was recorded in that report by J, I have no way of knowing at this stage the circumstances in which that interview took place or the form of the questions put to J which elicited the recorded response.
118. DC Lumb was asked about the subsequent decision not to prosecute or take any further action case in the light of a report made by the case reviewing officer, Tonya Antonis. The review was undertaken on 28 June 2010 and the report is in the bundles at [2/F:33].
119. That decision appears from the case review to have been taken from the foot of a number of factors including the following :-
(i) Because the mother did not give permission for a medical examination, there was no corroborative evidence;
(ii) The father had consistently denied the allegations and maintained his innocence;
(iii) There were concerns about the background and history between the parents in the acrimony surrounding the separation'
(iv) Throughout the course of the investigation, the mother had "drip fed" further information at every stage which raised issues as to her credibility;
(v) Overall, there was insufficient evidence to proceed.
That decision not to prosecute does not, of course, determine the facts from my perspective in this fact-finding process since the standard of proof which I have to apply is not the same as that which the police would apply in their decision as to whether or not to institute criminal proceedings. However, DC Lumb told me in the course of her oral evidence that she was aware that matters had subsequently come to light which could and should have been disclosed at an earlier stage to the police. She said, for instance, that it was not until later that she had been made aware that A had made an earlier disclosure to her grandmother. Prior to that point, she had been under the belief that it was the referral from the ISW which had triggered the police investigation.
120. She also accepted that there were obvious inconsistencies in what A had said during the ABE interview and the disclosure which she had made to Mr Fitzpatrick (such as the involvement of two other people and whether she had been made to sleep in her father's bed).
121. As to the issue of "drip feeding" or selective reporting to the police, I have a transcript of the interview which the mother subsequently gave to the police on 23 April 2010. DC Lumb was the note-taker during that interview. During the course of that interview, she alluded to the fact that her father had "warned her off" a relationship with the father and had told her many years before that he was "[inaudible] a paedophile" [2/F:189].
122. In relation to what A had actually said to her mother, the police interview provides the following answers :-
(i) There is reference to the maternal grandmother applying Vaseline to the child's bottom (although the date is not specified apart to the reference to this having happened "one time in the summer") and the report of A saying that her father had stuck his finger in her bottom, that it had poo on it and that it hurt;
(ii) According to the mother, nothing further happened to cause her to take matters further until the involvement of Mr Fitzpatrick and the disclosure A had made to him;
(iii) She said that after this revelation, she wanted to know everything which might have happened to her daughter. Asked exactly what A had said to her mother, she said she had not gone into matters in detail but, after she became aware of the disclosure, she said this [2/F:240]:
'Oh, it's very sore down there, A [sic]'. I said, 'What have you been up to ?' And she looked at me, and that's when she said, 'My daddy sticks his fingers up there'. And this is exactly what my mum said that she'd said to my mum when I was in Spain. She rang me and she said, A's just said this. That's exactly what she said to me.'
123. The mother asked the police officer whether A had said anything different when she was interviewed. She was told that she had more or less repeated what she had said to Mr Fitzpatrick as he had recorded it in his referral letter.
124. There is no further detail provided by the mother as to the substance of A's allegations / disclosures during the whole of that interview. Nor do I collect any further descriptive detail from her written evidence or the evidence she gave at the hearing on 16 October 2012. She became tearful at one point in her evidence when she was referring to A's distress. She told me, "I don't even know if he knows he has done this". When I pressed her to give me further details about the occasions when A had become distressed (other than those about which I knew), she said that A had told her that her father had told her to keep it a secret and,
"My daddy SMD made me wee wee ….".
125. When undertaking my review of the evidence for the purposes of preparing my judgment, I re-read the content of a long email which the mother accepts she sent to her Member of Parliament and certain other individuals. This email was in fact produced by the father in an undated statement which he made in order to address the mother's allegations. He relies on this email as evidence of a further attempt on the mother's part to "defame" him. The email appears to have come into the father's possession as a result of it having been sent by an unidentified third party to the father's Spanish lawyer. I have been quite unable to determine from the evidence before me how and in what circumstances she came to receive it, but it perhaps matters not for the purposes of this exercise. When the mother was recalled to deal with the contents of this document, she accepted that she had written it although she said the content appeared to have been "altered around – a mish-mash of the original email I sent". Be that as it may, she accepted that the material passage with which I was concerned had been written by her shortly after she had learned of the decision taken by the CPS that they would take no further action in terms of a criminal prosecution of the father. That would suggest that the email was sent at some point in July 2010 or thereabouts.
126. In the email, the mother sets out in detail and at length her distress at the decision not to prosecute the father and her perception of the failure of various bodies and authorities to listen to children who have been the victims of sexual abuse. She says that the purpose of her email is to seek justice not only for her daughter but also for all children who have been victims of such abuse. She sets out at some length and in some detail the events which had led up to the involvement of the police (including much of the history which I have set out above). Within her account, she included these details which – as she accepts – do not appear anywhere in the evidence she has put before this court.
127. First, she records in the email that once she became aware of the involvement of Social Services, she had spoken to A and asked why the child had not told her about what had happened when she was with her father. A is said to have responded in these terms : "because Daddy had told me to keep it a secret or he would get into trouble and I would never see him again". When asked why she thought he had done it, she said, "because he loved to". The mother went on to record in that email that, on the night of 28 April (2010), A had said. "I'm thinking about when daddy S hurt me in Spain" and "he used to get me naked (a word she learnt from him) then he took me to bed and put his finger in my hole …. Because he loved to, he did it all the time. I didn't like it so I shut my eyes".
128. This disclosure post-dated what A had said to Mr Fitzpatrick on 13 March 2010 and the exchange which took place with DC Lumb during the ABE interview some three weeks earlier. When the mother was recalled, she told me that the police had earlier told her to keep a written record of everything which A had said which she regarded as relevant to the allegations. This she had done and she told me that the extensive chronology of events which she set out in her email to the MP would have been compiled from the foot of contemporaneous notes and emails she had sent to her solicitor. Of the reference to the father having told A not to tell the police, the mother told me that she had informed the police and the case officer by email about this disclosure. She could not say why it had not been recorded in her statement in these proceedings.
(iv) August 2010 : the third disclosure to the maternal grandmother
129. As the mother's chronology makes clear, it is her case that throughout the Spring and Summer of 2010, there was an ongoing campaign of harassment from the father. Her case, which is supported to a large extent by the third party material within the bundles, is that the father was "bombarding" the agencies involved in the ongoing investigation with emails, some of which contained complaints and threats of further action.
130. Against this background, and almost a year after A had made her initial complaint to her grandmother, there was a further disclosure. Mrs M had come from Spain to visit the family and was on an outing with the mother, A and C to a local supermarket. She had taken A to a public lavatory on the premises and the child, without prompting, had said to Mrs M, "Granny, do you remember what I told you about my daddy poking his finger in my bottom and I didn't like it and it hurt me ?" [1/C:113].
131. Mrs M told me that this episode prompted her to write to the mother's Member of Parliament in September 2010 (the following month). A copy of that email is in the bundle at [1/C:241]. If nothing else, that email demonstrates the strength of this grandmother's conviction by this stage that the father ("a very manipulative man and a consummate liar") had abused her granddaughter. I am entirely satisfied that the email is likely to have been sent if not at the mother's direct request then in support of the "campaign" that the mother herself had by then instigated following the refusal of the CPS to bring criminal charges against the father.
132. At this point in the chronology concerning the allegations, and whilst I have not included this under a separate reference, it is appropriate to record that on 11 November 2010, a few weeks later, a social worker called Tamsin Cox attended at the mother's home following a report from an unidentified member of the public who reported that A may have been the victim of an abduction. There is nothing to identify this individual in the local authority's notes save that she was apparently female. Miss Cox's report of that visit included this reference :
"Whilst I was at the home I saw all of the children and spoke to J and A. I spoke to A on her own in her bedroom and downstairs. She did not need much prompting about the subject of her father and the alleged sexual abuse. She told me about school and her teachers."
(v) December 2011 : the fourth disclosure to the maternal grandmother
133. According to Mrs M, she was attending a ballet class watching her granddaughter in the company of other parents and family members. When she noticed that A was becoming agitated, she asked what was the matter whereupon the child said she wanted to use the lavatory. When they left the class and while she was helping A, the child burst into tears and repeated the allegations she had made previously. Mrs M told me that on this occasion, she had said, "that is why I keep having to do wee wees, because he hurt me".
(vi) April / May 2012 : the fifth and final disclosure to the maternal grandmother
134. Mrs M's evidence was that in April or May 2012, whilst she was driving in the car with her husband, A and C singing songs, A stopped singing and said that she did not like what her father had done to her and she did not want to talk about him again. In terms of the ongoing litigation between these parents, I remind myself that this would have happened either shortly before or after the pre-trial review which had been listed on 23 May 2012 but adjourned due to issues of outstanding disclosure.
(vii) 9 July 2012 : disclosure made to a volunteer at a theatre group attended by A
135. Within the material submitted by the mother with her statement dated 2 August 2012 there is a record of an Initial Assessment carried out by a social work called Kim Corani following a referral on 9 July 2012 from one of the volunteer helpers who had been assisting at a local theatre group attended by A. Miss Corani's report records that information had been received from the volunteer that A had said things about her step-father who did things to her "which made her need to 'wee'" [1/C:284]. On 25 July last year, Miss Corani had attended at A's home and spoke to the child alone without her mother or any other family member being present. After some general conversation about the family, A was asked if she remembered telling anyone something which might worry them. She shook her head. Upon being asked if she would like to hear what Hilary (the volunteer) had said, A said she remembered what she had said about 'weeing' a lot because of things done to her by her stepfather. She identified Hilary as someone who had taken her to the toilet. She confirmed that the person she was talking about was the father (whom she identified at "SMD who lives in Spain") and she continued "he put his finger up my bum where I poo from", that he had hurt her and that he was a horrid man. She then went on to identify the mother's partner, PO as her "Dad" and "SMD" as her stepfather.
136. Again, I remind myself as a matter of fact that the original listing in respect of this fact finding hearing was 12 July 2012, some five days after this last disclosure was made and on the day when the mother was contacted by Miss Corani about the further disclosure. I am also conscious of the fact that I have no statement from the volunteer (Hilary) to whom this disclosure was made. The mother told me in her oral evidence that she had wanted this potential witness to come to court but was told that, in the light of Miss Corani's report of what had been said, it was unnecessary.
137. In terms of other evidence, there is no medical evidence available to assist me, the mother having accepted the advice of the paediatrician approached by the local authority that an examination would be unlikely to assist. I have a copy of A's medical records which record a chronic history of difficulties arising from constipation but which contain no reference to any alleged abuse. To bring matters up to date, the mother told me that A had seen a consultant paediatrician in November 2012 concerning her difficulties over urinating and incontinence. Whilst that consultant had been made aware of the allegations of abuse which are the subject of these proceedings, he had told the mother that there was no conclusion to be drawn given that children can present with incontinence for a number of reasons, including situations which they have found distressing.
My observations of the parents
138. I have already dealt at some length in this judgment with the father's perceptions of this litigation and the position in which he finds himself. Whilst he presented as a quietly spoken man from the witness box, I was left in little doubt as to the strength of his conviction that he is a victim of an unfair process and a legal system or systems which have allowed the mother to abduct his daughter on not one, but two occasions. He referred repeatedly during his oral evidence to the "spiral of deception" which has taken place at the mother's behest. He regards the mother, in concert with her immediate family and her solicitor, to be acting together in pursuance of a conspiracy to remove him from any sphere of influence over or contact with A. He has at times, as he accepts, been prepared to act inappropriately towards both the mother and third parties in his attempts to secure the reunion he seeks with his daughter. I found him to be lacking in judgment and insight at times when he was giving his evidence. There were moments when the quiet reserve which I observed through most of his oral evidence gave way to some seemingly theatrical gestures, so intent was he on making his point to me. On one view he has left few stones unturned in his attempts to re-establish contact yet, conversely, there was a period of two years during which he refused to take any part in the English proceedings (launched in May 2011). This, he says, was a step taken on the advice of his Spanish lawyers in an attempt to preserve jurisdiction in Spain. He has plainly behaved in a hostile manner towards the mother and it is perhaps fair to say that neither feels anything but contempt for the other. He accepts that he made a referral to the Legal Services Commission in an attempt to disqualify her from receiving legal aid, although he denies contacting the Benefits Agency to restrict her entitlement to other state benefits. As he explained it to me, "I believe that I am entitled to highlight an injustice which has occurred".
139. Much of the evidence which I have seen and heard points to his capacity to parent each of J and A in a wholly appropriate way. I accept that, until the separation, he drew no distinction between the two children, each of whom he regarded as his child within the family. The mother was plainly content to leave the children in his care when she first left the family home to begin her relationship with PO. There were no apparent concerns about his care of either child during the shared parenting year in Spain aside from those expressed privately and in general terms to her solicitor. I saw photographs depicting life in Spain during A's early years. These suggest a happy and contented little girl who delighted in the company of her father. I was told about a telephone call on Christmas Day in 2009 during which A was reported to be speaking happily and easily to her father. The mother accepted that their daughter told the father that she loved him during this conversation.
140. He remains resolute in his denial of the allegations of sexual abuse or, indeed, any inappropriate behaviour towards A. He offers no explanation as to how something which he might have done could have been misconstrued or misinterpreted by the child and/or others in their interpretation of her reports. He nails his colours firmly to the mast of what he refers to as the mother's sustained campaign of parental alienation. He says that there is no other feasible explanation but that either she has systematically coached this child to say what she has or, as he put it to me, "something in that household is awry". By this, he was referring to the photographic evidence of sexual activity which took place on a consensual basis between the mother and PO which had been found on the latter's computer by his employer following his departure from Spain. The father says this material was sent to him by the employer (who had an axe to grind in terms of monies removed by PO). The father denies disseminating that material and/or further material which I was told was available and which the mother had been shown on a mobile phone. At the start of the case, there was some suggestion from the mother that, as part of his ongoing campaign of harassment, the father had covertly installed cameras within her home to record these images. He denied this. She was subsequently to accept that the video had been recorded by PO during consensual sexual activity between them and that the father had no involvement at all. All of this, says the father, points – at the very least - to a lack of boundaries within the home environment which A sometimes shares with PO.
141. The father points to his immediate attendance at the police station when he was first made aware of the allegations which had emerged after A's interview with Mr Fitzpatrick. The material disclosed by the police shows that he was not required by them to attend on that occasion. His presence at the police station was, I accept, entirely voluntary. At one point during his subsequent police interview, he described the allegations as "ludicrous". He said, and I quote from the transcript [F:126],
"When I have my little girl coming to me, in front of other people, and saying - you know, when I, when I first see her after – you know, this was in my January contact, when my little girl says to me, "Mummy tells me, tells me that I'm not to call you 'daddy' any more but I am your – but you are my daddy, aren't you daddy ?". You know, I'm sorry but what do you do about that ?"
142. It was part of the father's evidence that a similar remark was made by A to him during the Christmas Day telephone call in 2009 to which I have already referred. The mother denies that she said this although she accepts that the child told her father that she loved him and missed him.
143. What, then, of the mother ? She plainly found the experience of giving evidence a difficult and, at times, distressing experience. She refused to make eye contact with the father throughout save when it became unavoidable. From what she told me, it appears that her life has become much less chaotic in that she and the children are now settled in their home environment in S and she has embarked upon a course of training as a midwife. She also does voluntary work on three days a week. I have little doubt that the lack of involvement which the father has had in her life in the last three years has, from her perspective, contributed to a greater sense of well-being. I accept, listening to her account from the witness box, that the father's behaviour towards her over the contact arrangements during the shared parenting regime and his actions in pursuit of his campaign seeking A's return to Spain took a heavy toll on her happiness and emotional, if not physical, wellbeing. It affected her relationship with PO and that is clearly an important part of her life to this day. As she told me in cross-examination, "I have plenty of reasons to be cross with him (ie. the father)".
144. That said, I did not find this mother to be an ineffective campaigner in her own cause or in pursuit of her belief that the father has abused their child. The graphic descriptions which she provides of his alleged past behaviour in her emails to her own solicitors and in the email sent to her MP show a robust and determined advocate of her cause. It is clear from the evidence relied on by the father that she has in past fallen out completely with her own parents who, in the early days of the separation, appeared to support their former son-in-law. She was taken by the father's counsel to emails which Mrs M and her husband had written to the father and to the mother which show quite clearly the depth of the estrangement between the mother and her parents in 2008.
145. It was suggested to the mother that those emails demonstrate quite clearly that she had been using the children as "pawns" by restricting the amount of time her parents could see J and A following her separation from the father. In one email, sent on 9 March 2008, her mother refers to her daughter as "being her usual vile self". In another, she wrote to the father referring to "vicious texts" she had received from her daughter and her willingness to "have my Grandchildren used as pawns".
146. The mother denies using the children as pawns against her parents. At one point she suggested that the emails produced by the father may have been tampered with. I reject that suggestion. There was clearly a rift, and a deep rift, at one stage between the mother and her parents but I accept that time and lives have moved on and that Mrs YM is now a valuable support to her daughter and an important part of A's life. I accept that many of the earlier problems arose in the context of the difficult shared parenting regime which was put in place at the start of the separation when the mother was only having limited time with A for part of the week.
147. I shall return to the fundamental conflict between these parents on the main issue in due course and I shall when I set out my findings deal with their credibility and whether or not I believe them in terms of their respective denials of the other's case. For now, I need to say something briefly about the other witnesses I heard.
148. I found the maternal grandmother, Mrs YM, to be a truthful witness who has the best interests of her grandchild very much at heart. Having listened to her carefully, and whilst I accept that she has become caught up in her daughter's wish to see the father exposed as an abuser, I do not accept that she was in any sense involved in the "coaching conspiracy" which the father puts forward as the reason for A's disclosures. She struck me as a fundamentally honest witness who had come to court to help me. She clearly believes that the father has abused the child in some way and she tells me that belief flows from repeated disclosures made by A in unprompted situations and always in the same or a similar form. ("She has never changed her story. Whenever she brings it up out of the blue, it is always the same.") She was cross-examined by the father's counsel as to why, as a trained nurse, she had done nothing after the first disclosure in August or September 2009. She told me that she did not construe what A had said as anything other than difficulties arising out of her problems with constipation and she had simply wanted to make her granddaughter comfortable. In relation to the emails, she accepted candidly that her daughter had been capable of difficult behaviour in the past and she acknowledged the extent of the difficulties in their relationship in the aftermath of her separation from the father. She told me that the emails had been sent in a difficult atmosphere which lasted for several months at a time when the mother was angry and upset. She accepted that initially she and her husband were very supportive of the father.
149. Despite the fact that there is a passing reference in one of the mother's 2008 (pre-disclosure) emails to her solicitor that her mother had asked A whether she slept in the yellow room, to be told that the child said she slept with daddy, I am satisfied, as I have said, that Mrs M's account to me of the various disclosures which her granddaughter has made is both truthful and accurate and that she has had no involvement in influencing this child one way or another in terms of making these statements.
150. I also heard from DC Lumb, the ABE interviewing officer. I have set out the relevant parts of that interview earlier in my judgment. She told me that she was aware when she conducted the interview that the father was alleging the disclosures had been manufactured by someone for the purposes of preventing him from having contact with his daughter. In relation to the suggestion that the police had been "drip-fed" information by the mother, she accepted that matters had indeed come to light which could and should have been said earlier. It was not until several weeks after the initial referral by Mr Fitzpatrick that she had been made aware that A had previously made some sort of disclosure to her grandmother.
151. Mr Fitzpatrick, the independent social worker, came to court on the first day of the hearing. He was asked questions about his report of 17 March 2010. I have already set out earlier in my judgment the observations which he he made during the course of his oral evidence about A's manner, the circumstances of his meetings with her and his impression of her as a credible witness despite her young age. However, he was candid in his admission that, at the time the disclosure was made, he was completely unaware of two important factors. First, that the father was running a case that A had been deliberately coached and, secondly, that the mother had been aware for several months before his involvement of the previous disclosure in similar terms made to the maternal grandmother.
152. The final non-party witness from whom I heard was Mr Valentin Dancui, the social worker who had been allocated to this case by the local authority. He was able to confirm in his oral evidence that the local authority had no concerns about the care which the mother was providing for the children but, frankly, he had little else to offer in terms of assistance to the issues which I have to decide since his recollection of the case appeared to be distinctly hazy.
153. There was no issue between counsel as to the relevant case law and the matters which I must consider in reaching my conclusion on the facts in issue. Whilst there is a wealth of relevant precedent at an appellate level, it is agreed that the relevant principles are usefully summarised in two recent judgments delivered by Mostyn J in relation to fact-finding. They are Bradford Metropolitan District Council v F, K and K [2012] EWHC 557 (Fam) and A county Council v M and F [2011] EWHC 1804 (Fam), [2012] 2 FLR 939.
154. I set out below what the learned judge said in paragraph 7 of the Bradford case since it seems to me, and counsel agree, that it is an excellent summary of the law drawing together, as it does, established principles and more recent strands of authority. I mention only, in this context, that the Bradford case concerned care proceedings brought by a local authority and references to the local authority bearing the burden of proof need to be read in the context that it is for the person or body making a particular allegation to establish it to the requisite standard.
"The law
[7] In two previous fact-finding judgments of mine, I sought, probably at far too great length, to set out all the legal principles applicable to a hearing of this type. I shall not do so again, but shall confine myself to the following summary, which derives from those judgments :
(i) The local authority must prove its allegations on the balance of probabilities, no more, no less : Re: B (Care Proceedings : Standard of Proof) [2008] UKHL 35, [2009] 1 AC 11, [2008] 3 WLLR 1, [2008] 2 FLR 141 , at paras [2] and [70].
(ii) The law operates as a binary system in which the only values are 0 and 1. The fact either happened or it did not. If the court is left in doubt, the doubt is resolved by a rule that one party or the other carries the burden of proof. If the party who bears the burden of proof fails to discharge it, a value of 0 is returned and the fact is treated as not having happened. If he does discharge it, a value of 1 is returned and the fact is treated as having happened : Re: B (Care Proceedings : Standard of Proof), at para [2].
(iii) The more serious or improbable the allegation the greater the need for evidential 'cogency' : Re Dellow's Will Trusts; Lloyd's Bank v Institute of Cancer research [1964] 1 WLR 451 at 455; Re H (Minors)(Sexual Abuse : Standard of Proof) [1996] AC 563, [1966] 2 WLR 8, [1996] 1 FLR 80, Re S-B (Children)(Care Proceedings: Standard of Proof) [2009] UKSC 17, [2010] 1 AC 678, [2010] 2 WLR 238, [2010] 1 FLR 1161 at para [13].
(iv) Sometimes the burden of proof will come to the judge's rescue : the party with the burden of showing that something took place will not have satisfied him that it did. But generally speaking a judge ought to be able to make up his mind where the truth lies without needing to rely on the burden of proof : Re B (Care Proceedings: Standard of Proof) at paras [2] and [32]; Rhesa Shipping Co SA v Edmond and Another The Popi M [1985] 1 WLR 948.
(v) It is impermissible for a judge to conclude in the case of a series of improbable causes that the least improbable or at least unlikely is nonetheless the cause of the event : Ide v ATB Sales Lyd; Lexus Financial Services t/a Toyota Financial Services (UK) plc v Russell [2008] EWCA Civ 4424 at para [4];
(vi) There is no pseudo-burden or obligation cast on the respondents to come up with alternative explanations : Lancashire County Council v D and E [2008] EWHC 832 (Fam), [2010] 2 FLR 196 at paras [36] and [37]; Re C and D (Photographs of Injuries) [2010] EWHC 3714 (Fam), [2011] 1 FLR 990 at para [203].
(vii) If an individual perpetrator of harm can be properly identified on the balance of probabilities, then it is the judge's duty to identify him or her. But the judge should not start from the premise that it will only be in an exceptional case that it will not be possible to make such an identification : Re D (Care Proceedings : Preliminary Hearing) [2009] EWCA Civ 472, [2009] 2 FLR 668, at para [12]; Re S-B (Children)(Care Proceedings : Standard of Proof) at para [35].
(viii) If the judge cannot, on the balance of probabilities, identify a perpetrator or perpetrators, it is still important to identify the membership of the pool of possible perpetrators : Re S-B (Children)(Care Proceedings: Standard of Proof) at para [40]. In this scenario if the evidence is not such as to establish individual responsibility on the balance of probabilities it should nevertheless be such as to establish whether there is a 'real possibility' that a particular person was involved : ibid at para [43].
(ix) The judge is the decision maker, the expert is not. An expert is not in any special position and there is no presumption of belief in a doctor however distinguished he or she may be. It is, however, necessary for the judge to give sound and articulated reasons for disagreeing with experts' conclusions or recommendations : Re B (Care : Expert Witnesses] [1996] 1 FLR 667; Re B (A Child)(Split Hearings: Jurisdiction) [2000] 1 WLR 790, [2000] 1 FLR 334; Re D (Care Order: Evidence) [2010] EWCA Civ 1000, [2011] 1 FLR 447 at para [24].
(x) Evidence of propensity or a psychiatric or psychological assessment of one of the parties is unlikely to be of any assistance in resolving a purely factual issue : Re: CB and JB (Care Proceedings : Guidelines) [1998] 2 FLR 211. Howevver, the assessment of a parent's core personality and the extent to which damage resulting from his early life experiences was disabling and permanent was primarily for the experts : Re: M (Residence) [2002] EWCA Civ 10152, [2002] 2 FLR 1059.
(xi) The assessment of credibility generally involves wider problems than mere 'demeanour' which is mostly concerned with whether the witness appears to be telling the truth as he now believes it to be. With every day that passes the memory becomes fainter and the imagination more active. The human capacity for honestly believing something which bears no relation to what actually happened is unlimited. Therefore, contemporary documents are always of the utmost importance : Onassis and Calogeropolous v Vergottis [1968] 2 Lloyd's Rep 403, per Lord Pearce.
Principles (ii) and (vii) can theoretically lead to complications for the court. Let me give an example. A child was seriously harmed. The court is satisfied, on the balance of probabilities, that either M or F caused the harm. On the binary method of adjudication a value of 1 is returned and they are jointly, but not severally, treated as having caused the harm. The court cannot identify one or other as the perpetrator on the balance of probabilities but is satisfied that there is a 'real possibility' that one or other did. It assesses the probability in relation to each at 30% (P=0.3). On that footing, on the binary method they are severally treated as not having caused the harm (value=0). So the law says as a matter of certainty (value=1) that jointly they did cause the harm but severally that neither did (value=0). That has logical problems, but viewed from a child protection perspective it is perfectly acceptable. The threshold is crossed and there is a real possibility that each parent was responsible. On that basis the court can move to the welfare stage armed with sufficient knowledge, or at least a sufficient appreciation of the risks, to enable a just disposal in the child's best interests."
155. The Bradford case, with which Mostyn J was dealing when he made these remarks, concerned the death of a small baby in circumstances where there were two possible perpetrators or, alternatively, the possibility of a finding that the baby had died from natural causes. It was a very different case on its facts from the exercise in which I am currently involved. Nevertheless, several of the principles set out in the judgment in para [7] are of assistance and direct relevance. In particular, the burden of proof which I have to apply is the simple balance of probabilities : see (ii) and (iii) above. For the purpose of my analysis, I am going to deal primarily at this stage with the allegations of sexual abuse. I shall return to my findings in relation to the more general harassment issues in due course.
156. In this case, the mother makes various allegations against the father, including an allegation that he has in the past sexually abused their daughter or touched her in an inappropriate manner so as to cause hurt to the child. The father, in response to the allegations of sexual abuse, says that the mother has systematically coached the child or, in the secondary alternative, exposed her to some form of sexualised behaviour within the home which has led to the child making these allegations. As to the cogency of the evidence which is required to discharge that burden, the more serious the allegation (such as digital penetration of a child's anus or vagina as a form of sexual abuse), the greater the need for evidential cogency. Throughout, I bear in mind that allegations of this type are easy to make yet difficult to disprove. Here, there is no legal burden on the father to disprove the allegations; it is for the mother to establish that, on the balance of probability, it is more likely than not that that which she alleges has occurred : see Re M (A Child) (Fact Finding Hearing : Burden of Proof) [2012] All ER (D) 222. In this case, there is no real issue between the parties as to whether or not A has made the numerous statements to family members and other third parties about which I have heard. The real question which I have to determine is whether, in so doing, (i) they are reliable statements of what has actually happened to her and, if not, (ii) why she has been making these disclosures over a sustained period of time. I say that with this caveat. Whilst the father does not dispute the contents of A's ABE interview and the reports made independently to the third parties who have submitted reports, he does not accept as a fact that A made any disclosure to her maternal grandmother in August / September 2009. As I have already said, it is his case that Mrs YM is a part of the conspiracy of alienation and that whatever A has disclosed subsequently to third parties, she is merely repeating suggestions or words implanted by her mother and/or grandmother through their "coaching" of this small child.
157. The mother's case in relation to (i) (are A's statements reliable evidence of what has actually happened to her ?) when she gave her evidence in chief was that she had no particular view but would leave relevant findings to the court. She told me, "My views do not come into this. It is up to A and the court". In the light of everything I have heard and read, I do not accept that her position was neutral. If from nothing else, it is quite clear from the long and detailed email which she circulated to her MP and to others that she was wholly persuaded by the start of this fact-finding hearing that the father had in some way abused their daughter. Accordingly, I reject her evidence on this point. The fact that she may not have been truthful in expressing a neutral stance in relation to the truth or otherwise of the allegations does not, of itself, establish the father's case that she has deliberately alienated the child but it is one of the many factors which I have to balance in reaching a conclusion about these matters.
158. The father too, as I find, was not completely truthful in some respects when giving his evidence.
159. He denied the mother's allegation that they had sexual intercourse when she was 15 years old. When the mother was cross-examined by Mr Lewis, the father's counsel, it was put to her that they first had sexual relations in 2004 when she was 25 years old. This she denied and she gave me a fairly graphic description of her memory of losing her virginity when she was not yet 16. By contrast, when the father was interviewed by the police on 26 April 2010, he was asked whether he had slept with her when she was 16 or 17 years old. He replied, "… when she was 17 years old, in Exeter, yes, we did, once" [2/F:107]. On balance, I find that the mother is telling the truth about the start of their sexual relationship but I remind myself that just because a person has been untruthful about one aspect of their evidence, it does not necessarily follow that I can place no reliance on the truth of other aspects about which they have given evidence.
160. Another aspect of the father's evidence which I find questionable was his statement to me that he had been unaware that in March 2010, the Spanish courts had ceded jurisdiction in relation to A's future to the English courts. (Although a written judgment did not become available until the beginning of May 2010, both parties – with legal advisers – had attended a hearing on 30 March 2010). He told me that he had not been properly advised and he did not believe that this is what had occurred (hence his insistence on maintaining throughout to various agencies and third parties involved in the investigation that the mother had "abducted" A). However, I look again to what he said during his police interview at the end of April 2010, just a month later. When he was asked about the divorce in Spain and the March hearing, he said this:
"I had my translator there, an L had … a translator. Once again, she – ehm, ehm, yeah, anyway, ehm, yeah, a translator there and they basically said, ehm, that they're handing over the jurisdiction for, for custody of [A] to the UK court, ehm, but they would deal with the divorce .. in which we had – we don't have the paperwork yet, ehm, and, ehm, and I don't believe that, ehm, after, after speaking to … advisors recently, I don't believe that it's actually right, what they've done at the moment, ehm, because we can't sign, sign the divorce papers properly until we've, ehm, arranged something, something with the children ….." [2/F:122].
161. Whilst the latter part of this statement is entirely consistent with what the father told me about his understanding of the position in relation for the need for some sort of agreement about the children before the divorce itself could become final, it is inconsistent with his statement that he was unaware that the mother had the permission of the Spanish court to come to England. The fact that he may or may not have been told that there might be an avenue of appeal against that decision (if that was the case) does not, in my view, provide any justification for his representation to all and sundry that this was a clear case of parental abduction.
162. I am also troubled by his evidence in relation to the alleged assault on the mother after the incident with the mobile phone. It was this incident which was the subject of the criminal charges in the local Spanish court which led to the father's conviction. It seems to me that, unless and until that conviction is overturned or the court's findings otherwise disturbed on an appeal, I am bound by the fact of the conviction. Whilst I entirely accept that there may have been provocation of some sort on both sides with yet more video-recording of contact handovers, the fact of the matter is that there was expert medical evidence before the Spanish court which was relied upon as clear corroboration of the mother's account of what happened. I have the translations of the medical reports from the hospital in the bundles at [2/E:213]. Furthermore, as Mr Fitzpatrick told me, A was readily able to provide an account of what she saw on that occasion when he met with her (she being present, of course, at the hand over when the assault occurred). The father's evidence when he was cross-examined by Mr Hepher on behalf of the mother was that he did not believe that the mother had sustained an injury on that occasion, that he did not witness any injury and, if she had been injured – which he does not accept – it was self-inflicted. In the light of the medical evidence which I have read, I do not accept that evidence and I am, in any event, bound by the record of conviction in the Spanish courts. It is not without relevance, in my view, that the mother herself did not wish to press charges. She told me that she was in great distress, that she had just had enough by that point and wished to return home to England. I accept her evidence on this aspect of the case.
163. Thus, I approach the issue of the truth or otherwise of the allegations of some form of sexual abuse perpetrated by this father against his daughter from the foot of findings that neither parent has been wholly truthful in all the evidence they have put before the court, and I shall say more about this when I deal with the father's case in relation to things which may have been said or done by the mother. In this context, the father's case in relation to the second question which I posed above (why should A be making these disclosures if they are not true ?) is that this is the clearest case of coaching driven by what he calls the syndrome of parental alienation and there is no substance whatsoever in the truth of the statements which A has made insofar as he himself is implicated in any form of sexual abuse or inappropriate behaviour towards her.
164. The father is prone to advance many aspects of his case using the language of his cause. Thus, I heard much about the syndrome of parental alienation, the spiral of deception and other concepts of "parentectomy". When he was asked what it was that he meant by his reference to "parental alienation" in particular (his principal allegation against the mother), he described it in terms of "taking extreme measures to alienate a child from the other parent's life. Making derogatory comments about the other parent, such as 'mummy or daddy is nasty', 'daddy does not want to see you today', generally bad-mouthing the other parent'. Of course, here, his allegations go well beyond those matters since he invites me to find that the mother (and, on his case, the maternal grandmother) have deliberately coached A to make the specific disclosures she has repeated on several occasions to different people.
165. I have looked carefully at what evidence there is here which might enable me to make such findings. Looking first at the history of this family, the father says to me, in terms, that the mother has done this before with J. He says that she deliberately influenced the child over contact with his own father to the point that J has had little or no contact at all while he was growing up. At the least, the father says that she failed to protect J from the consequences of that conflict and was subsequently to ensure that he, too, as J's step-father was marginalised from his life.
166. During the course of the hearing, I was taken to a report which had been prepared in August 2008 by a Cafcass officer, Malcolm Hartley. It was a report which had been ordered by the court in the context of the previous Hague proceedings initiated by the father in order to ascertain J's wishes and feelings about a return to Spain. At that time, J (who was 9 years old) was living with his mother and A in Torquay. It is clear from that report, and the mother accepts, that J was aware of many aspects of the case between his mother and step-father, and that his knowledge flowed in part from things which his mother and said and read to him.
"3.5 J went on to say that when his dad goes to court, he has an angry face. I asked him how he knew that. He said his mum told him. J said he tells his mum that he does not want to hear. He went [on] to say though that his dad, 'tells lies in court'. J said he knew that because his mum was reading things out. J was playing (with the children of the friends with whom they are staying) but, he said, he was still hearing." [3/D:4]
"3.11 J told me that he liked Spain then, but he started to realise it was a bit too hot there. "Then all this started", he said, "I don't know what happens now" …"
"3.12 I asked him what it was that started. J told me he was asking his mum every day where he was staying at night. He said he was staying at SMD's for 3 days, 3 days at his mum's and 1 day with gran. I talked about what he remembered about before his mum and dad separated. He said they used to argue a lot. He used to go into his bedroom, shut the door and put a pillow over his head. He told me that he did not like hearing them arguing. J went on to say that when he grows up, he doesn't want to live with people who argue. He told me, 'if I had 3 wishes, I'd want to be in England, to be with mum, have a happy family." [3/D:5]
Having told the Cafcass officer that he had not included the father in a drawing because he was "nasty, because of all the lies he's told". The report continues,
"3.17 I asked J if he remembered a time when he, A, his mum and SMD were happy. He thought that at first it was OK, but then 'really, they were always having arguments'. J said he thought the first argument was 'when all this started'. He went on to tell me he had had 3 (dads) – PO, SMD and, 'I can't remember the other one'. He did not see SMD as a member of his family any more because he made his granny and granddad upset, and mum. J said to me, 'This is a bad situation', and asked 'Is this your worst one ?'. I asked J what he would think if his dad listened to what he was feeling and stopped the business. He told me that he would feel happy, 'now that I feel safe'. I asked if J would see his dad if he felt safe. He said that if he stopped this business, he could see himself probably start going to see him."
167. I note that at no point during this interview did J express any concerns or reluctance about the father's behaviour towards him during the periods he was spending at the father's home during the shared care arrangement which was put in place after the separation. There is no reference to any unhappiness about the sleeping arrangements such as those which surfaced as a result of concerns expressed by the mother some two years later during the interview with DC Lumb when concerns flowing from A's disclosures were gaining traction. I have already referred to what J said then in paragraph 116 and I will not repeat those matters here.
168. I was also taken to a letter which had been handwritten by J and sent to the father. It purported to express his views as to why he might have a better future in England, including future job prospects. Whilst I do not intend to make any specific findings about the circumstances in which this letter was written (and the mother says she had not seen this before), I am prepared to accept that its contents are likely to have been influenced by the adults around him at the time. It is quite clear from what J said to the Cafcass officer in 2008 that discussions involving the distress and upset which the father is said to have caused the mother and her family were common currency within the home at the time. I do find that the mother, albeit in fraught circumstances at the time, exposed J to an inappropriate extent in the acrimonious parental conflict which was ongoing at that time, and to the wider distress felt by the maternal family as a result of his decision to institute the Hague proceedings. It is quite clear to me from the evidence I heard from the maternal grandmother and from the emails which passed between the Ms and their former son-in-law that the mother was quite capable of hurtful and vindictive behaviour towards her own parents when felt she was or might have been the subject of criticism in relation to the circumstances in which this marriage had come to an end. Whilst I heard no direct evidence on the point, it is clear to me that her parents were less enthusiastic about her relationship with PO in the immediate aftermath of her separation from the father than they might be now. Of course I accept that the dynamic within families will always create the possibility for temporary fractures in relationships and the breakdown of communications between family members. Equally, I accept that time is a great healer and, free from the influence of the father, the mother has now had the space and time to rebuild a life for herself and the children here in circumstances where her parents have provided her and their grandchildren with much love and support. But the antipathy which the family (and the mother in particular) feels towards the father in the context of his attempts to re-establish contact with A through a formal court process has not, as I find, been extinguished. Whilst she may have good reason for holding these feelings, the mother is prepared to believe there are no depths to which this father will not stoop. As the case was opened to me, one of the allegations against him was that he had somehow managed to install video recording equipment in the home which she had shared with PO in Spain and had thereby come into possession of sexually graphic images and recordings which he had disseminated. By the end of the hearing, that allegation was no longer pursued, it being accepted that such images were found on PO's work computer by his former employer and shown to him (on the father's evidence) or that they had been filmed with her consent by PO (on the mother's case).
169. When the mother was asked specifically about matters relating to J, she accepted that it was quite possible that she had read out some statements when J was there. She told me that she did not believe that the children had any idea about what she thought. She told me that she did not say negative things about the father to A or J; his name was simply never mentioned. ("We don't talk about SMD. I don't talk to her about him. I don't say anything positive or negative. She doesn't want to talk about him.") She said of her involvement of J in the earlier stages of the proceedings, "It might have seemed that way but I don't talk to them about the case now; things have changed in four years".
170. When asked whether she had "coached" J in 2008, she denied this. Whilst accepting that there was what she called "a subtle line" in terms of the influence she might have exerted, she said that coaching involved telling a child what to say and she had never done that.
171. In terms of any influence she may have exerted over A, I heard from the father about the Christmas Day telephone call which he received in December 2009 whilst he was staying at his mother's house. I have referred to this earlier in my judgment. The mother accepts that A told her father that she loved him, missed him and wanted to see him. She seemed happy to talk to him on the telephone. When she was asked why A might have said this if she had been abused in the manner alleged by the mother, she said "a lot of children that are groomed love people". She denied that the child had said "mummy and J hate daddy". Whether or not this was said during that particular telephone call will be the subject of one of my findings in due course, but I have little doubt that A is aware to some extent of the mother's feelings of hostility towards the father. I have recorded in paragraph 141 the father's account of what she said to him about no longer calling him 'daddy'. To me, that had a ring of truth and I am prepared to accept that A did make a statement to this effect or something similar. Whether or not that statement flowed from a direct instruction from the mother or from the child's understanding of her home situation and the mother's (and possibly, the grandparents') feelings about her father matters not, although I prefer to think that the mother has encouraged A to regard PO as "daddy". She has plainly done little to keep alive in the child's mind any positive memories of the father during the last two years.
172. If the mother's belief that abuse has occurred is well-founded, that would not be a surprising situation. I cannot ignore what this child has said to a number of individuals over a period of time. I do not accept, as I have said, that Mrs M was misleading me about the circumstances of the first disclosure which A made to her in August or September of 2009. I reject entirely any suggestion that the grandmother is fabricating her evidence in relation to that event. Similarly, despite the criticism I have made of some of the mother's earlier responses to the breakdown of this marriage and the children's involvement in the adult conflict which flowed from it, I struggle with the concept that this mother, who plainly loves A, would set out to teach her daughter to disclose and repeat a description of an event or events which on their face appear inherently unlikely. I ask myself why this mother, in all other respects a loving and caring protector of her child, would sow this particular suggestion in the mind of her three year old child when – had she wanted to deliberately manufacture allegations of abuse – there were far more obvious suggestions she could have put in A's mind.
173. A spoke to her grandmother in very specific terms. She spoke of "stinging" and "hurt" and "poo on his finger" which she related to some hurt to her "bottom". From a child who was just 4 years old, the language and the recollection of a sensation associated with whatever had occurred suggests that this was not simple fantasy on the child's part. It suggests that some action on the part of her grandmother that day (or the suggestion that she might apply Vaseline to a sore bottom) had triggered some memory of a past event, however imperfectly remembered. Is it a reliable account of some form of sexual abuse perpetrated by the father ?
174. In the light of what I know about this father's relationship with his child both before the marital separation and in the year which followed it, this, too, seems an improbable explanation taken in isolation from the other evidence in the case. There is no evidence that he has behaved in a sexually deviant manner before. I draw no support in this context from the fact that he was untruthful to me, as I find he was, about the date when he first began a sexual relationship with the mother. Nor do I place any reliance upon the somewhat lurid suggestions in the mother's emails to her solicitor in 2008 concerning what she has described as her earlier concerns about the father and her reference to him in another email as a paedophile. There is no credible or reliable evidence before me, apart from what A has said, to support her suggestions and the father was not cross-examined about any of these matters.
175. In his closing submissions, Mr Lewis on behalf of the father drew together all the inconsistencies in the various separate accounts which A has since given. I was reminded about the reference to the two individuals she described as "Y and Z", mentioned only once to Mr Fitzpatrick. Neither of the parents knows of anyone to whom she might be referring. I was reminded that Mr Fitzpatrick had not been told about the previous disclosures when he spoke to A in March 2010. He had accepted that he might have conducted the interview differently and might well have reached different conclusions about whether A appeared to be speaking freely and without prior prompting. I bear in mind that in the context of the Spanish family proceedings for which his report was being prepared, there had been no suggestion of any sexual abuse of A. I was reminded about the concerns of the police and their concerns about what they described as a "drip feed" of information. I was asked to bear in mind, as I do, that A was anxious to return to her mother's presence at various points during her ABE interview and at points where she appeared unable or unwilling to answer a particular question. As I pointed out at the time, I do not regard this as conclusive one way or the other. It was clearly a stressful situation for this child. Even when DC Lumb had to resort to what were, frankly, leading questions in her attempts to elicit information from this child, the interview did not go beyond the substance of her original disclosure to her grandmother. DC Lumb accepted that she did not find the interview easy to conduct and that A had been one of the youngest children she had interviewed in a formal context such as this.
176. At no fewer than three points during the interview did she refer to the fact that this had happened to her "because he wanted to". There is a clear resonance in these words to what the mother has said in the email to her MP and others. Is this evidence of systematic coaching, as the father would contend, or corroboration of the mother's accounts of the disturbing disclosures she is hearing from her daughter? Each may be true; each appears as improbable as the other taken in isolation.
177. In discharging what I have found a difficult task, I have to weigh all these matters in the balance. I have to ask myself why this mother did not play "the disclosure card" in August/September 2009 if this were genuinely a case where she had been deliberately coaching this child. Whilst I have considered carefully that the timing of the first disclosure outside the immediate family was made to Mr Fitzpatrick in the context of a welfare focused report, the mother had not made the earlier disclosure an issue in those proceedings. Was she motivated by a desire to ensure that there was a seemingly spontaneous report to an impartial expert or was A genuinely repeating her memories of an actual experience ? Was this a situation of a child repeating her earlier description of a triggered memory because of the response she knew it would provoke in her mother and grandmother (ie. reassurance, love and confirmation that she was "safe") ?
178. I also bear in mind the efforts which the mother made to persevere with contact arrangements in the face of what was clearly a very difficult and fraught relationship with the father. I accept that she and her solicitor were genuine in their efforts to fix dates for Christmas contact at the end of 2009. I reject the father's evidence that this, too, involved a deliberate conspiracy in which the mother's solicitor was also involved to ensure he did not receive relevant emails about the proposals.
179. Mr Hepher on the mother's behalf contends that either the father has convinced himself that he did nothing wrong or he is deliberately concealing the truth from the court. For his part, as I have already remarked, the father offers me nothing in terms of a plausible explanation as to how some memory might have been triggered in A's mind if this is not a case of direct coaching. He was asked about whether he could recall anything during nappy-changing or an application of cream which might have provoked her disclosures. He said nothing at all had ever occurred whilst A was in his care which could be misconstrued in this way. I bear in mind that a father who is on the receiving end of allegations such as these will be anxious in the extreme not to say anything at all which might open the door to further enquiry even in circumstances where the denial of guilt in any inappropriate behaviour is entirely genuine. I remind myself again that he has nothing to disprove in relation to these allegations. The only burden upon him in the context of his denials is to persuade me that this mother has deliberately and consistently caused her daughter to repeat untrue allegations against him in furtherance of her wish to deny him contact or any involvement in her life.
My final conclusions
180. My final conclusions, having considered carefully all the evidence which was placed before me, are these :-
Allegations in the context of the "campaign" of harassment against the mother, family members and third parties
181. As Mr Lewis was to concede in his final submissions, in terms the father admits the truth of many of the allegations which the mother makes in terms of his conduct but he denies that his actions amount to harassment because he was justified in doing what he did to refute her lies and the conspiracy she had launched against him. I reject his case. I find that, taken together, the course of conduct upon which he embarked amounted to harassment not only of the mother and her family members but also of various employees with the local authority, the school and the police service. I accept entirely that he regarded himself as a victim of an injustice perpetrated by the mother in denying him contact with his daughter but his actions were, in my view, inappropriate and oppressive. The father himself, and to his credit, accepts that his interaction with A's school was unacceptable.
182. As the case was opened, I was presented with a detailed schedule of the specific findings sought. By the conclusion of the hearing, Mr Hepher in closing submissions had focused upon a smaller selection of the allegations flowing from this limb of the case. Insofar as it may be necessary for me to make specific findings in relation to the original schedule, and for all the reasons which I have explained at some length above, I find the following to be proved or not proved (and I follow the numbering on the document which appears in the bundle at [1/C:30):-
(1) On 10 November 2009, the father assaulted the mother in Spain in the presence of A. The conviction stands as a matter of record in the Spanish court and has not been overturned by appeal.
(2) I shall deal with allegations of sexual abuse separately.
(3) I do not accept that the father's specific intent in returning with A's belongings the "Teddyphone" was an attempt to locate her and/or to harass the mother. The mother was alerted by letter to the fact that she had been given the mobile telephone device and the father made no attempts to activate the device prior to its destruction by the mother. I accept the father's evidence that he was trying to establish a means of communication with the child, the mother having removed the other mobile 'phones he had provided.
(4) I accept that from November 2009 when the mother returned to this jurisdiction with the permission of the Spanish court and until the issue of these proceedings (by which he has accepted the jurisdiction of the English court to deal with all matters concerning A's welfare), the father continued wrongly to allege that the mother had abducted her from Spain.
(5) Particular allegations of harassment against the mother and her partner, PO
i. The father alleges the mother has lied. I accept that in several material respects, this is an honestly held belief on his part insofar as it relates to her animus towards him and the issue of contact. Insofar as it relates to allegations to public bodies and other third parties contained in the many emails and other documents which he sent to them, I accept that it constituted harassment.
ii. The father believes that the mother is, or may be, cohabiting. The mother accepts an ongoing relationship but denies permanent cohabitation with PO. The father admits he approached the Legal Services Commission with a view to seeking the withdrawal of her public funding certificate. That allegation is therefore proved by admission. The father denies that he made the anonymous referral which caused an enquiry into the mother's entitlement to state benefits. I find on the balance of probabilities that, if it was not he who made the referral, it was instigated on his behalf.
iii. The father has alleged that the mother has exposed the child to inappropriate sexual behaviour between her and PO. She, in turn, says he has disseminated to various third parties the photographic evidence which I accept was provided to him by PO's employer. The father admits that the photographs were sent to the local authority and to the police. I have sympathy for the father's position in making these matters known to various authorities in circumstances where he himself was the subject of an ongoing investigation into alleged sexual abuse. I accept his concerns as a parent in circumstances where his child was living in a home in which this relationship was being conducted and in circumstances where he was not being permitted any contact or involvement in attempts to establish A's welfare. To the extent that the explicit photographic material was disseminated, it should not have been. That element of the finding has been proved. I decline to make a finding that his raising of these concerns in the context of the enquiry into allegations against himself amounted to harassment.
iv. The father accepts that he launched county court proceedings to recover a debt which he alleges was owed to him by the mother. In the context of his parallel attempts to resist service of the mother's English proceedings, I am satisfied that he took this action in order to cause difficulty and distress for the mother. The legitimacy or otherwise of his claim as a matter of law is a different matter and one in respect of which I make no findings.
(6) I have already made findings in relation to the father's disclosure of sexually explicit photographs to the agencies concerned with this investigation. The father denies that he sent these photographs to her parents and/or posted them on the internet. Because there was at least one other potential (and disaffected) individual who had possession of this material and who might have posted the material on the internet, I am not satisfied that this allegation is proved.
(7) The father's primary case in these proceedings is that the mother is alienating A and seeking to marginalise him from her life. I will make findings about whether or not such allegations against the mother are justified when I come to deal with the issues flowing from the allegations of sexual abuse.
183. It is to these allegations that I now turn because they are inter-connected.
Allegations of sexual abuse by the mother and of parental alienation and coaching by the father
184. Taking the totality of the evidence which I have considered in detail in my judgment and bearing in mind the law and the burden of proof which each of these parties must discharge in terms of the allegations which they make against one another, I have reached the following conclusions which I record as findings of fact within these proceedings :-
(i) I reject the allegation that the mother deliberately "coached" A to make the first disclosure to her maternal grandmother in August/September 2009 and that she thereafter instructed or "coached" the child to repeat those allegations to others on subsequent occasions;
(ii) I reject the allegation that the maternal grandmother, YM, was somehow complicit in the allegations of coaching and/or that she was part of a wider conspiracy to discredit the father by making false allegations of sexual abuse against him;
(iii) I reject any suggestion that the disclosures which A has made have been prompted by any sexual activity or other inappropriate behaviour which she has witnessed between her mother and PO;
(iv) I do not believe that A's disclosures are based upon imagination or fantasy. I find that the description which she gave to her grandmother in the summer of 2009 and on subsequent occasions to her grandmother and others was more likely than not to have been prompted by an actual event or experience in which she had been involved or which happened to her;
(v) I find on the balance of probabilities that that event or experience is likely to have involved the father and, further, that it is likely to have involved some inappropriate touching of her genital area which involved digital rather than any other form of penetration and that it was one which caused the child pain. The only logical conclusion I can draw from the evidence is that this is likely to have occurred on at least one, and probably more than one, occasion whilst the parties were operating the shared care arrangement between December 2008 and November 2009.
185. In relation to the father's case that since the separation the mother has sought to alienate him and marginalise his role in J's and A's lives, I find the following facts proved :-
(vi) Prior to March 2010 when the mother began to take seriously the disclosures which A was making, she had done little to encourage A to maintain her relationship with the father in any positive sense over and above adhering to the contact schedule which the lawyers and/or the court had put in place. In this context, I accept the father's evidence that she had not facilitated telephone calls through the mobiles he had provided for this purpose;
(vii) It is more likely than not on the balance of probabilities that :
i. the mother was content for A to refer to PO as her father or daddy;
ii. the mother had not sufficiently protected A from her feelings of antipathy towards the father;
iii. the father's evidence was true in relation to the statements which A is said to have made during the Christmas Day telephone call in 2009 about the mother's feelings towards him and his evidence given during his police interview to the effect that she had been told he was not her daddy any more.
186. I do not propose to make any findings in relation to any estrangement between J and the father or the causes of that estrangement since he is not the subject of the current proceedings. What I can say is that my perceptions of the mother's behaviour in the context of the father's relationship with J after the separation (based as they are upon what I know from the Cafcass report prepared in 2008 and statements made by J himself) have provided support for my belief that, even absent the more recent allegations against the father, this was not a mother who was committed to allowing each of A's parents to pay a full role in her life once the marriage had come to an end.
187. It will be for another court to decide what should happen now in the context of the father's current application for contact. It may be that some form of risk assessment will be deemed appropriate before any future decisions can be made. That is not a matter for me. Counsel (and/or the father if he continues to act in person) will no doubt ensure that the matter is listed for further directions with an appropriate time estimate. That should be done sooner rather than later. Mr Lewis drew my attention to the fact that there were two outstanding applications in relation to wasted costs. I heard no submissions about these matters and, if they are to be pursued, any issues arising should be raised at the directions hearing to which I have referred. If these are matters with which I can properly deal on paper, I am happy to do so.
188. This judgment is confidential and its contents must not be disclosed to anyone else, save for the parties' legal advisers, without the permission of the court. To publish or disseminate its contents could amount to a contempt of court which may well attract punitive sanctions. I say this, particularly, because I do not know whether or not the father has retained the services of his solicitors and/or Mr Lewis, his counsel. I do not expect him to do anything other than to observe the confidentiality of these proceedings which concern a minor child and proceedings under the Children Act 1989. However, he should be aware that court would take very seriously any attempt by him to publish, disseminate or make known to individuals who are not connected with, or party to, these proceedings (other than lawyers retained by him for the purposes of advice in these matters) the contents of this judgment or matters arising from the hearing.
189. I only wish to say by way of post-script to my judgment that the individuals who have suffered the most as a result of this long history of bitter hostility between the mother and father are the children themselves and, in particular, A. Whatever decisions are reached in the context of her future wellbeing and happiness, I have deliberated long and hard about this case and I would want each of these parents to know that my conclusions have been reached against the background of all the evidence, including that which has been put before me (indirectly) from A herself. Given her age at the relevant time, it could never have been appropriate to have relied solely on what the child herself has said. But I have listened to her, through others, and I have carefully considered what she has said in the context of everything else which I know about this case and these parents.
children private law
fact finding hearing

redpajama_set_name: RedPajamaCommonCrawl