Father's access order varied due to child abuse allegations; mother not liable for breach as terms changed by HSE.

[2009] IEDC 3

AN CHUIRT DUICHE THE DISTRICT COURT

DP

APPLICANT

-AND-

KS

RESPONDENT

THE GUARDIANSHIP OF INFANTS ACT 1964 — SECTION 12

THEC OURTS (NO. 2) ACT, 1986 — SECTION 5

IN THE MATTER OF CHILD

18 May 2009

1. An Application on Notice by the father of infant Child 1 came before the District Court on 8 May 2009 seeking a Variation of Access

Order as well as a Complaint concerning a breach in respect of an alleged failure/refusal to comply with Access Orders of this Court.

The Respondent, the mother of Child 1, contested the Application and Complaint. Both Father and Mother were legally represented.

2. The Application to vary the Access is made pursuant to section 12 of the Guardianship of Infants Act, 1964 and the separate

Complaint is made pursuant to section 5 of the Courts (No. 2) Act, 1986. The latter matter was withdrawn, namely the Complaint,

and accordingly I shall deal with this matter at the conclusion of the Variation Application. It has taken me quite some time to

consider this matter but having done so I am now in a position to deliver the decision of this Court. Before so doing, it is necessary to

indicate, or at least outline in summary, the methodology which I have chosen. The evidence in this matter comprises of both

documentary and oral evidence. Although, this Application seems to be one to vary access, it has its own features of complexity

which I need to set out. Matters of some delicacy have arisen as a result of allegations of sexual abuse being perpetrated by the

father on the infant who is the subject of the Access Application. Accordingly, these allegations must be addressed and determined

by this Court before considering Access. Also, I feel it is necessary to set out most, if not all, the evidence that has been given in

this case. Therefore, it is going to take me some time to set this out and then I will have to record what I believe the law to be in

respect of the decisions I am taking. Thus, I have split the decision into a number of discrete parts starting with an introduction and

then addressing the various parts so as to simplify and amplify what would otherwise be a decision which would be hard to follow. I

hope I have achieved this.

1. Introduction

3. Before the Hearing commenced, three documents were handed into the Court for consideration. They were as follows:

(a) Assessment Report of the sexual abuse unit;

(b) Letter dated 23 February 2009 from the HSE’s solicitors to the solicitor for the Respondent; and

(c) HSE Social Worker’s Report dated 7 May 2009.

4. I had the opportunity of reading the Assessment Report prior to the Hearing. One can see that there is a caveat attached to this

report restricting sight thereof to parties to whom it refers but in the instant case the Applicant, Father had read and considered the

report in the presence of his Solicitor. Given that there exists such a caveat and such being necessary to as to ensure that all

children who confide their experiences to this Unit continue to have the confidence, trust, and belief in this procedure and obviating

the fear of children that accounts would be divulged to all and sundry, it is with the greatest care and sensitivity that I find myself

divulging only that which is necessary and relevant concerning aspects of the contents of the Assessment Report. I say this because

the recipient of the Assessment Report is advised that:

“[t]he Unit is an independent specialist child sexual abuse unit, which provides both an assessment and therapy

service to children and families residing in County 1, County 2, or County 3.

Assessments are therapeutic in nature and are conducted in order to provide an independent opinion as to whether

or not a child has been sexually abused. This report constitutes a summary of that assessment including the opinion

arrived at, basis for same, and any therapeutic recommendations identified through the assessment process. It

should be noted that the Unit does not make recommendations about custody or access arrangements. Whilst this

report may contain relevant information about the alleged perpetrator, the assessment and this report do not

constitute a Risk Assessment of the alleged perpetrator, a Victim Impact Report, or any other such assessments

which would be more appropriately carried out under the Health Service Executive’s mandate (e.g. section 20. etc).

This report is strictly private and confidential and is for the information of the professional to whom it is addressed

and which professional/entity/organisation retains an obligation of confidence. It should not be released and/or

shown to parties to whom it refers, or to any other person. This report must be solely retained by the agency to

whom it is addressed. This does not preclude detailed discussion of the contents of the report with the client, for

the purposes of consultation and/or taking instruction. Parents who wish to read the report should be directed to

contact the Unit to arrange an appointment. This report should not be copied, disseminated or used for any other

purpose whatsoever without the consent of the author. the Unit can take no responsibility whatsoever for breaches

in confidentiality by the recipient if the report is made available to any other person, including the family in

question. It is also understood that should this report be included in the Book of Evidence, it would at that stage be

made available to the alleged perpetrator’s legal representatives, but that at no time would the alleged perpetrator

retain a copy of the report.”

It is also necessary to convey this health warning or caveat because it clearly shows the independence of the Unit in relation to the

allegations and the investigation thereof and gives one confidence in that all parties are treated equally and fairly in the assessment

process. Also adopting this caveat which engenders the confidence of the child will allow the child to speak freely and openly even if

the evidence is weak and/or the perpetrator denies the accusations, otherwise the child could easily feel betrayed and exposed to

ridicule. I will return to the contents and findings of this assessment later.

5. The Letter dated 23 February last, as aforementioned at paragraph 3(b) above, stated that the solicitor’s for the HSE were:

“instructed that the HSE became aware that Father was convicted for possessing Child Pornography and was

placed on the Sex Offenders Register in 2005.

We are instructed that subsequently Child 1 his daughter made an allegation of sexual abuse against him. This

allegation was referred to the sexual abuse unit for investigation. The Unit is independent of the HSE. They offer

treatment and support as required to the children from their multidisciplinary team of professionals. We understand

they concluded that the allegations were credible. They notified the HSE of their findings to allow the HSE to

comply with their statutory duty under the Child Care Act to protect children in their area.

The HSE contacted both Father and Mother and recommended that it would not be in Child 1’s best interests for her

to have unsupervised access with her father, pending an assessment of risk. Neither Father nor Mother notified the

HSE that there were Court orders in place regulating access.

We are instructed that Father is no longer willing to meet with the HSE to allow them conclude their assessment as

to whether he may pose a risk to his daughter”.

6. The Social Worker’s Report dated 7 May 2009 under the penmanship of Social Worker 1 outlines the involvement of the HSE and

states that:

“[t]he HSE has been involved with the family on an ongoing basis since February 2008 when Child 1 made a

disclosure of child sexual abuse by her father. Child 1 was referred to the Sexual Abuse Unit for assessment of the

allegations. The Unit completed their assessment and concluded that Child 1 was sexually abused with Child 1

naming her father as the perpetrator of this abuse.

I was allocated to the case to follow up on the recommendations of the sexual abuse unit and to assess the

potential risk Father may pose given the allegations of child sexual abuse.

Child 1 is currently awaiting therapy with an institute and it is expected this will become available to her in the

coming weeks. Father has not had access with his daughter since the allegations were made last year. The HSE has

advised both Mother and Father that there should be no contact between Father and Child 1 until the sexual abuse

unit assessment was completed. Neither parent advised the HSE that there was a Court Order regarding access at

the time. Prior to this Father was having supervised access with Child 1 following his conviction for possession of

Child Pornography in 2005. Child 1 resides with her mother in County 1 and there are no current child protection

concerns for her. Child 1 has not seen her father for some time and Father is anxious to resume contact with his

daughter. The HSE is currently making its assessment of any potential risk that Father might pose to children. The

HSE has met with Father and he has cooperated with our investigation. Father has advised that he understands

that any contact with Child 1 would be supervised and has given a commitment to this effect. Father was already

having supervised contact with Child 1 prior to Child 1’s allegations and is aware that any future contact would

need close supervision.

The HSE is continuing in its assessment of Father and it is expected that this would be completed in the coming

weeks.

The HSE believe that if the Court were to allow access between Child 1 and her father access should be supervised

at all times by a person who is aware of the nature of the allegations against Father.”

2. Background

7. Although Mother was born in County 1, at a very early age she and her family moved to County 2 and she spent most of her

childhood and teenage years there completing her formal education and commencing University. Mother comes from a very close-knit

family who are very supportive of her. Her family have return to the family home in County 2.

8. It is common case that she and Father met on holidays when she was aged 20 and he was 25 both having worked in the same

company. Some time afterwards, they commenced a relationship and later moved in together. Some one-and-a-half years later, they

married and that was in or around 1999. The initial early period of the marriage was a blissful affair. When Mother became pregnant

with Child 1 it was as a result of planning and she was very happy because that is what was always wanted. According to Mother,

Father shared that view but she perceived him to become controlling and manipulative. She stated that “he made me feel like shit.”

Remarks such as “being over weight” and “having to lose weight” were made to her by Father on a somewhat regular basis. Mother, in

giving her personal history to the sexual abuse unit, said that her friends commented to her that they noticed how Father was

“constantly putting her down.”

9. In 2005, Father was convicted of possession of Child Pornography and was placed on the Sexual Offenders’ Register. In relation to

the investigation leading up to the conviction, Mother gave a detailed account to the sexual abuse unit of her experience of this. The

Report states:

“[w]ith regard to Father’s conviction Mother stated that on the 23rd March 2002 the Gardaí had raided her family

home. She described how things had not been going well between she and Father for some time prior and that they

had a major row on the 22nd March 2002 when Father had gone out drinking with a neighbour. Mother described

how her doorbell had rung at 8:00 a.m. on the morning of the 23rd March 2002 and there were four detectives with

a search warrant for the house. Mother stated that at this stage Father told her what he believed the guards were

looking for. Mother described how this was a total shock for her…

Mother described how, immediately after the raid, Father had left the house for a short period of time. She stated

that his family were putting her under pressure to take him back and that he was also making an effort to be a

better husband and father. Mother stated she was uncertain whether or not she felt she could reconcile with her

husband following his arrest but that this came to the forefront for her when Child 1 was approximately one-year-

old. She described how there was a particular incident when Child 1 was crawling over her father and innocently

touched him in his genital area. Mother said she found herself instinctively questioning ‘what if that touch has

turned him on?’ She stated that she knew at this point she no longer could continue in her relationship with Father.

She stated that when she informed Father of this, he attempted to commit suicide the following day having left a

note for his family. Mother described how she had found Father in their garden shed loading a gun and how she had

to take this gun from him … Following the ‘gun incident’ Mother stated that she was advised by the guards to get a

Protection Order. She stated that this was a very difficult time as the media had found out about the Child

Pornography charges as their neighbours had. Mother stated that Father exerted his legal rights over the family

home at this point and she quoted incidences of him insisting that she move photographs back on the wall and

change the message on their answer-machine to reflect that they both lived there. She described a particular

incident during this time when Father had gone drinking and had returned home to the house in an intoxicated

condition and tried to force his way into her bedroom, necessitating her calling the police.

With regard to their sexual relationship Mother stated that Father was always ‘very selfish’ sexually. She stated

that she would comply with his requests for sex as she was afraid that he would leave her. She described how he

liked her to shave her pubic hair and liked acts of anal sex. Overall, she described Father as having a high sexual

drive.”

10. Father, who is 39 years of age, is divorced from Mother and has remarried. Father also gave a personal history to the sexual

abuse unit in the following terms:

“[h]e was born and reared in County 1 and both his parents are still alive with his father being in ill-health requiring

continuous oxygen throughout the day. He himself is the eldest of three children, having a younger brother and

sister. He stated that his family are aware of the current concerns regarding Child 1 and they are very supportive of

him. He described his main supports as being [his present] wife and his mother…

Father went on to describe his relationship … with Mother. He stated that he had two serious relationships prior to

meeting with Mother on holidays. He described that two years after meeting with Mother they began a serious

relationship and married some three years later … Father was open in stating that ‘he steered the relationship.’ He

described how he believed he was manipulative and also had been unkind to Mother regarding her weight. Father

described how he ‘got into computers’ in 1998/1999 and went on to describe how they took over his life. He stated

that his interest in Child Pornography began in 1999 after he was married. He further described how, at this time, he

was very involved in his work, would arrive home late from work and would then spend most of his time sitting in

front of his computer or the television. He stated that, prior to Mother being notified by the Gardaí of his

downloading Child Pornography, he and Mother had acknowledged their relationship was in difficulties and that they

were living more like ‘two flat mates’ …

Father went on to describe how his interest in Child Pornography had become an addiction. He stated that following

his being charged with possessing Child Pornography his primary focus was on trying to save his marriage. He stated

that he had contemplated suicide at this time by trying to crash his car and had also threatened to shoot himself in

an attempt to gain Mother’s attention”.

3. Nature of the Sexual Abuse

11. Mother had been contacted by Child 1’s school on 20 February 2008. The school stated to her that Child 1 was out of sorts.

During the discussion with the school, Mother informed them that Child 1 had disclosed a short time previously to her that her father

had touched her genitals. Child 1 reportedly described this touch as occurring during times her father was washing her in the bath and

also while she was sitting on his lap. Mother said that Child 1 physically demonstrated the alleged abusive activity to her.

12. In the sexual abuse unit’s report under the heading ‘Child 1’s Current Level of Functioning’ it is stated that:

“[t]he school expressed concerns to mother in February that they felt that Child 1 was not progressing in school,

had become disinterested and spent a lot of her time day dreaming. Mother stated that since Child 1’s disclosure of

the alleged abuse she is now ‘flying’ in school …. Prior to Child ‘s1 disclosure Mother had noted that Child 1 was

masturbating a lot. She stated that this activity has stopped since she no longer is seeing her father. Mother

reported that Child 1 would use a pillow and a duvet to masturbate and would become extremely distressed if

Mother attempted to discuss why she was doing this. Child 1 reportedly said ‘it’s this thing I have to do and I keep

doing it until I get that feeling and then I stop.’ … She [Mother] said she tried to deal with it in the main by ignoring

it but Child 1 would spontaneously report to her “I was doing that thing” – referring to her masturbating.

Mother further reported that Child 1’s behaviour and attitude towards her had markedly deteriorated the year prior

to her disclosure in February 2008. Mother described her as an ‘antichrist.’ She went on to describe how Child 1

would constantly state to her that she hated her and that she wished she wasn’t her mother. She described how

she would slam doors and that she appeared full of anger and was rude in front of other people. Mother reported

that, since her disclosure, she feels that Child 1 is more relaxed and settled and had become loving and friendly

toward her again”.

13. The foregoing was the precursor or the behaviour of Child 1 which was the catalyst triggering an investigation or enquiry into the

reasons underscoring Child 1’s change of conduct. The sexual abuse unit’s Report states that:

“Mother stated that, when she first became aware of Father accessing Child Pornography, she did not have any

concerns at that stage that he would do anything untoward to Child 1. She stated she believed that, following his

treatment in an Institute, this was no longer a problem for him … when Child 1 was aged approximately 3 she

[Mother] had gone for advice to the HSE. She said that at this time Child 1 was saying vague things to her

regarding her father showering her. Mother stated that she had previously asked of Child 1’s father that he would

not shower her. She would have showered Child 1 prior to her visits with her father and she felt another shower

was unnecessary … Mother stated that Child 1 would occasionally make comments to her that caused her some

disquiet but not enough to bring the concerns to the HSE … Mother then asked Child 1 if there were touches she

did not like and, in this context, Child 1 reportedly said to her that she did not like when daddy put her foot against

his beard and did not like something he did to her bum [an incident] when Child 1 was having a bath … Mother told

her to shower herself down, Child 1 spontaneously stated ‘sometimes my daddy puts his hand here’. Mother stated

that when saying this Child 1 placed her own hand against her own genital area. Mother said she enquired of Child 1

‘is this to clean you?’ Mother stated that Child 1 responded to this by saying ‘No mammy’ … Mother made a general

comment to Child 1 to the effect that a touch in that area was not right and enquired of Child 1 if she had told her

father not to do it. Mother stated that Child 1 response to this was “I’m too scared to”. Mother stated she was

surprised to hear Child 1 state this as she would regard Child 1 as being quite self-assertive and well able to stand

up for herself…

Mother stated that, given her level of concern, she asked Child 1 to show her what she meant. She said that Child

1’s response to this was to stand up and splay her legs while saying ‘he gets me to do this and he puts his hand

here and here.’ Mother stated that at this point Child 1 was pointing to her genital and anal area. Mother again

enquired if this was in a cleaning context. She stated that at this point Child 1 spontaneously demonstrated on a

sweater that mother was wearing that had a pocket on it, an in-and-out movement into the pocket to illustrate the

type of touch she was talking about. Mother said that due to her level of concern over what Child 1 was

demonstrating she put her hands (i.e. mother’s) together to represent the vagina and, according to Mother, Child 1

put her hand inside ‘the vagina’.

Mother enquired of Child 1 if this happened any other time. Child 1 reported to her ‘sometimes when we were having

a cuddle he puts his hand down there.’ Mother said she was again indicating her genital area. Mother enquired of

Child 1 if this was inside or outside her pyjamas. Child 1 initially said inside but then corrected herself and stated

that this touch occurred outside her pyjamas…

Mother states that she fully believes that Father has done something inappropriate to Child 1. She relates this to a

combination of factors including Child 1’s oppositional behaviour (which she now says has ceased since she has

stopped contact with her father), Child 1’s masturbation, her involving other children in sexualised play, and more

specifically her instinctively demonstrating by splaying her legs and pointing to her genital and anal area when

clarifying for her mother the way her father was touching her … She described Child 1 currently as being happy and

content, and considers the fact that Child 1 has not asked to visit her father as an indication he has done

something to her.

14. Child 1 was interviewed a number of times by the sexual abuse unit and she, on being questioned about the allegations, became

extremely upset, the upset being of the acute nature on one particular occasion the Consultant Child Psychiatrist, cut the interview

short. Accordingly, the second, third, and fourth sessions were not that productive as the troubled child exhibited distress, so much

so, that the Consultant Child Psychiatrist felt that pursuing the allegations would represent a greater injustice to the child than the

benefits of completing the picture of events. This I agree with.

15. In relation to the child’s disclosures, the sexual abuse unit Assessment Report noted that:

“interviewer gave specific examples of fathers doing something bold, fathers not being able to look after their

children properly or doing something unkind to them. Interviewer enquired of Child 1 if this made sense to her and

Child 1 nodded in the affirmative. When asked which of the three examples provided made sense to her, Child 1

responded ‘daddy doing a bold thing’ …

Interviewer then explored the possibility that Child 1 may have been scripted by her mother to say something

negative about father. Interviewer enquired directly of Child 1 that when she said ‘daddy doing a bold thing’ was

what made sense to her as the reason she was no longer visiting him, did she know that for herself or had mammy

helped her in this regard. Child 1 responded without hesitation that she knew for her ‘own self’ it was bold. Due to

Child 1’s evident difficulties to provide any further information that could clarify what the ‘bold thing’ was,

interviewer made a list of ‘bold things that can happen.’ The following items were placed on the list:

(i) Not bringing for a walk.

(ii) Smacking.

(iii) Touching private parts.

(iv) Not feeding properly.

(v) Being unkind.

(vi) Saying hurtful things.

Interviewer advised Child 1 that mother had told us that she (Child 1) had previously told mother something about

her father doing a bold thing and invited Child 1 to talk further about what that was. Child 1’s response to this was

to say ‘I don’t want to talk about it.’ At this stage it was evident that Child 1 was finding the session quite difficult.

She began shredding a paper tissue, was sighing deeply and appeared quite embarrassed. With reference to the list,

interviewer enquired if there were enough things on the list to help explain what the ‘bold thing’ might be. Child 1

responded that there were. Interviewer enquired if the bold thing that Child 1 had told her mother about was on the

list and again Child 1 nodded in the affirmative. Interviewer enquired if Child 1 was sure it was on the list and again

Child 1 nodded in the affirmative. Interviewer suggested that she would point to the different items on the list and

that Child 1 could tell her to stop when she reached the correct one. Child 1’s response was ‘I don’t want to.’ Child

1 did allow interviewer to rule out that the ‘bold thing’ did not refer to items one or six, but was unwilling to provide

any further clarification regarding which one of the remaining four items it was.

Interviewer at this juncture drew a series of faces to illustrate different feeling-states, i.e. happy, sad, angry,

nervous and lonely. Child 1 found it easy to engage with this particular activity and volunteered spontaneously that

she would be scared if she saw a bear. Interviewer then enquired what kind of face she had when the alleged bold

thing was happening to her. Child 1 pointed forcibly and quite quickly to the sad face. When asked by the

interviewer who did the bold thing to her, Child 1 responded ‘daddy’. When asked what kind of face daddy had when

he was doing the bold thing, Child 1 said she didn’t know. When asked what kind of face Child 1 had when being

asked about it, Child 1 again pointed to the sad face. Child 1 asserted for the interviewer that, even if the

interviewer pointed to the right bold thing on the list, she wasn’t going to talk about it…

Interviewer then checked with Child 1 her understanding of what Child 1 was saying over the course of four

sessions, i.e. that a bold thing had happened to her, that it was daddy who had done this bold thing, that the bold

thing was contained in the list of ‘bold things that can happen’, that Child 1 had a sad face when this bold thing

was being done to her, the bold thing had happened lots of times in daddy’s house and that she hadn’t told her

mother all of what had happened. Child 1 confirmed interviewer’s understanding by nodding affirmatively.

Furthermore Child 1 confirmed (again by nodding affirmatively) that she was telling the truth when she had

previously told mother in greater detail what father had done to her …”

4. The Hearing

16. The actual hearing of the Application commenced in the afternoon of 8 May at approximately 2:40 p.m. or thereabouts. When this

matter was called on in the morning and the parties commenced, the solicitor for the Respondent, requested permission to furnish the

sexual abuse unit’s Assessment Report to the Court. Counsel objected to this Report being furnished to the Court. Suffice to say,

having heard both sides I formed the opinion that this report would be critical to me reaching a fair and just decision and I accepted

the report into evidence. I rose to consider the Report and having sight of the enormity of the report and its contents I returned to

the Court and adjourned the case to the afternoon so as to fully and carefully consider the detailed and extensive report submitted.

Given that the admissibility of the Report was challenged, it is incumbent upon me to set out the reasons as to why I accepted this

into evidence. I have no doubt that the Report per se is a damning piece of evidence from the view point of the Applicant, but as a

piece of expert evidence in this case I find that it is admissible and cogent and I rest my judgment on this point upon the treatise of

Duncan and Scully in Marriage Breakdown in Ireland, Law and Practice (Butterworths, 1990) at page 485, wherein they state that:

“[a] witness may not in general offer an opinion unless he or she is expert in the relevant area. Expert evidence is

admissible ‘wherever peculiar skill and judgment, applied to a particular subject, are required to explain results, or

trace them to their causes:’ per Chief Baron Pigot, McFadden v. Murdock (1867) IR CL 211, at page 217. On the

other hand, the opinion of an expert is not in general admissible on matters that are within the normal range of

observation and experience. In family law cases, the expert evidence of such persons as doctors, psychiatrists,

psychologists and social workers is frequently admitted to assist the court both in determining the facts and in

predicting likely patterns of behaviour in hypothetical situations. This is especially so in child custody and access

disputes where the court’s primary and paramount concern is the future welfare of the child …”.

17. Although the Assessment Report is hearsay evidence, to preclude it from consideration in the instant matter would be iniquitous.

At the hearing, the Applicant, Father was called to give evidence and in his examination-in-chief he openly told the Court that he had

been convicted of possession of Child Pornography. He said he had been married then to the Respondent Mother and the fact of his

interest in Child Pornography had come to light in 2002. He was prosecuted for this Offence by way of Summons; he pleaded guilty

and was convicted. The sentence imposed was one of two years probation and he was to be placed on the Sex Offenders’ List for

five years.

18. The Gardaí suggested that Father attend an institute for therapy. He stated that he attended this Institute religiously and the

schedule of attendance was quite demanding in that for eighteen-months it comprised of weekly sessions and he might have missed a

Wednesday when he was on leave. Father said the institute’s treatment was a success and that he is now off the List of Sexual

Offenders or will be shortly. Since his conviction he said he had not re-offended.

19. As a result of this activity into Child Pornography, his marriage “foundered”. Following the Garda raid on the family home, his

marriage split-up and approximately two months after, in or around March 2002, he lived apart from his wife and daughter.

20. Father told the Court that from May 2002 to February 2008 he had access with Child 1. Subsequent to a Court Appearance, the

Court ordered that Access was to be every Wednesday at around dinner-time and that on every second or alternate weekend, full

access was to occur. The access was very amicable and changes could and would be made on agreement of the parties, namely the

Applicant, herein and the Respondent. Also, holiday access was a feature of their agreement. For the purposes of this decision it is

not necessary to recount the actual terms of the Access Order given that a variation is sought.

21. Father said that he and Mother were divorced on 25 July 2006. He said that all matters were sorted out including ‘sections 5, 18

and 10.’ Father said that Child 1 was nine-months-old when they split-up.

22. In relation to access, Father stated that Child 1 would stay at weekends. He stated he would bathe her and would do this alone.

Whilst she was staying over the weekend he would make sure she has a shower and wash her hair.

23. It is fifteen months since Father has seen Child 1. He says this was as a result of her ‘oppositional and defiant behaviour’. He said

Child 1 could be argumentative. Father said that Child 1 could always say she didn’t want to come to access or that she could always

return to County 1, where her mother lived. In relation to a “tick” which Child 1 had suffered from, Father said that this had gone by

February 2008 and did not impact upon the access issue.

24. Father said that he had read the sexual abuse unit’s Report and had agreed to a medical examination taking place but he said that

such an examination had not taken place. Father did not accept that his physical behaviour was inappropriate with Child 1.

Concerning the sexual abuse unit’s Report, he said that the Unit had failed to discuss three pages of hand-written notes with him. He

had five pages of notes which he took receipt of but these were not discussed either. He questioned the conclusions of the Report.

25. On returning to the evidence of his marital relationship with Mother, he said that the “relationship with Mother was strained before

the allegations were made”. On access, he had gone to the house on Wednesday night to collect Child 1. Then, without any

reasonable explanation, as Father puts it, he was not allowed to go into the house.

26. Maintenance is not an issue and he pays so-much, that is, a certain amount and in addition half of the expenses. Father stated

that he has started to ask for receipts of purchases/payments of expenses, etc.

27. In October 2007, Father remarried and he gave an account of this to the Court. In relation to the therapy suggested (I assume

he is referring to the risk assessment by the HSE rather than his own therapy in the institute), he says he has not been approached

about it.

28. Father stated that his parents made an application to the District Court for Access but that this was denied. He stated that the

Court was influenced by Doctor 1 in reaching its decision. According to Father, it is in Child 1’s best interest to see him and he would

be happy with supervised access. He just wants to see Child 1 and his wife, mother, or sister could supervise the access. In relation

to Mother supervising the access, he said he did not think it would be good or healthy because they do not talk to each other.

29. The conclusions of the sexual abuse unit are rejected by Father. Father said that he has attended Parent Teacher Meetings and

at no stage “was she said to be disruptive” and thus the premise upon which the report was predicated was questioned by Father. He

did accept that Child 1 was doing well since contact has stopped. There had been no contact since February 2008.

30. Under cross-examination by Mother’s legal representatives, Father accepted that he had read the sexual abuse unit’s report.

Father emphasised that the summary of the Report says ‘the balance of probabilities’ but he does not think she (Child 1) has been

sexually abused.

31. Solicitor for Mother outlined to Father the behaviour and conduct of Child 1 prior to the disclosure and asked him to comment. He

said he did not know why her behaviour was such but he did not accept that it was the result of sexual abuse. As regards the

sexualised behaviour with peers, he could offer no explanation. Also, as regards the graphic detail of the sexual behaviour, he could

offer no explanation.

32. It was put to Father that Child 1 underwent four traumatic interviews in which the allegations were canvassed and that the

allegations were found to be credible. Father did not accept this and said that Child 1 was ‘making it up’. Father said that “[s]he was

tutored and I don’t know by whom”.

33. Again, it was put to Father that the sexual abuse unit’s report is a report compiled by experts. Father was told that a full

gynaecological examination could not be conducted because such was the anguish and upset observed and when she was brought for

a gynaecological examination she was so distressed that the examination could not be carried out. Father’s demeanour and attitude,

to my mind, seems to indicate, his view would be that the gynaecological examination ought to have been carried out regardless of

the child’s presentation because he, Father, “asked for her to be sent”.

34. Father said that, and I quote, “I am being accused and I want to clear my name.” Father said that he has an expert lined-up,

Doctor 2, with a view to challenging the report i.e. the sexual abuse unit’s report. Upon further probing by Mother’s solicitor during

cross-examination, Father accepts that he had not met with Doctor 2 yet, but that Doctor 2 had “agreed to get involved.” It was put

to Father that he has had this Report for quite some time, since last year, and he has not challenged it yet. In fact, it was his

solicitor who had the Report, but Father did accept that he spoke to the sexual abuse unit about it and they had told him what was

in it and no explanation was offered as to the present challenge of the contents of the Report.

35. Father said he was concerned about Child 1’s welfare and access, pending therapy (Child 1’s therapy), he does not accept that

this would cause distress. He would accept supervised access and he stressed that the sexual abuse unit’s report “does not say I

can’t see Child 1.” Irrespective of the levels of distress which Child 1 experiences, Father does not think supervised access would hurt

her.

36. Father was told that Child 1’s therapy would not commence before her being interviewed by the Gardaí. The Gardaí advised that

should therapy commence prior to them taking a Statement it may jeopardise their investigation. Father asked Mother’s solicitor why

this was so and Mother’s solicitor advised Father that should a prosecution ensue that her Statement would be challenged if same

was made post commencement of therapy in that the therapy could be argued to have influenced her responses and render the

Statement inoperative for the purposes of a prosecution. Father said that Child 1 has never been sexually abused but rather she has

been ‘tutored’.

37. Father did not accept the evidence as it is and insists upon further investigations, notwithstanding the damage that has been

done and the fact that Child 1 has been through enough. “Regardless of how long it is going on – she will have to meet me” was his

response. That concluded the Applicant’s case.

38. Mother was next called to give evidence by her solicitor. Her examination-in-chief commenced on general aspects concerning her

former relationship with the Applicant and difficulties therein involved. Subsequent to the Garda raid she applied for a Barring Order

and Sole Custody Order. She secured the Sole Custody Order. The Separation Agreement also included an agreement upon her sole

custody of Child 1. Mother said that she has a different relationship with Father since the split.

39. Because of Child 1’s revelations, the school became involved. Initially her behaviour was a concern to the school. “Child 1 was

also very argumentative to me”, Mother told the Court and also said that Father would have seen this. Also, Mother expressed her

concern when she discovered this young child began masturbating at night-time in bed.

40. The HSE became involved and Child 1 was referred to the sexual abuse unit for assessment. In relation to a full gynaecological

assessment, Mother convinced Child 1 that it was an assessment conducted on all seven-year-old children like a check-up in the

doctors and she indicated what they would do. It was necessary to make this assessment ‘look like’ a check-up otherwise the child

would not have engaged, so they all played along.

41. Child 1 and Mother presented for the gynaecological examination and the doctor asked Child 1 to pop-up on the couch. The

examination commenced but Child 1 would not allow the doctor to proceed in the examination below the waist-line. Doctor 3, who

was conducting the examination, expressed surprise at Child 1’s reaction but clearly the examination could not continue because of

the grave distress it caused to Child 1.

42. Mother’s solicitor continued to question Mother and she was asked to comment on Father’s contention that Child 1 was “tutored”.

Mother said Child 1 was telling the truth, 100%. Mother said she would never “tutor” Child 1. Her sexual behaviour was a concern to

her. Mother said that she taught Child 1 the facts of life and uses proper words for describing the various parts of the body and was

given a book on the facts of life. This happened when Child 1 was six and not four as Father alleged. The book used is a standard

text for children of this age written by a person called ‘Osborne’ and “used age-appropriate language; used proper words and not

make-up words”.

43. From February 2008 to July 2008, Child 1 would experience nightmares. These would happen all night and she would wake up.

Mother said that it got so bad that they had to share a bed. In order to check this, Mother said that “the only way was to sleep in

the same room as me.” Child 1 now can sleep with her door closed but has a little light on in her room and has not had nightmares in

months. But a reference to her father or certain events would “bring it up”, that is, her distress.

44. In relation to the assessment carried out by the Consultant Child Psychiatrist, in the hospital, Child 1 told her mother, Mother,

that she was very cross with her because she told him what had happened to her. When Mother would start to talk about ‘it’ Child 1

gets rather cross.

45. Child 1 is presently doing very well in school. The Gardaí have been involved in the process. Mother said she was called into the

Garda Station approximately 6 to 8 weeks ago and she furnished a full Statement to An Garda Síochána. Child 1 is due to give her

Statement to the Gardaí soon. Mother has said that Child 1 is expected to commence therapy and the necessary forms have been

completed.

46. Solicitor for Mother put it to her that Father would take any form of access. Mother said she would be concerned even about

supervised access. Mother told the Court that Child 1 does not want to see her father and that “she has not shown any wish to see

her dad” Mother said that “if she was told to go and meet her dad, she would be upset, angry and cross.” It was put to Mother that

if therapy suggested that Child 1 was to see her father what would her position be? Mother said that she would follow all directions of

the professionals involved.

47. Counsel for Father commenced his cross-examination by stating that nobody told him about Child 1’s referral to therapy. He

wanted to know if there existed any document of the proposed therapy. Mother said that she filled in and completed the Proposal

Sheet. She stated that there is a need for Child 1 to attend counselling because of the sexual abuse by the father. Counsel did not

accept Mother’s standpoint upon access and pursued her in relation to what he believed to be her unreasonable stance to supervised

access. Mother impressed upon Counsel that access could only, in her opinion, commence after therapy starts and that this cannot

start until after the Gardaí take Child 1’s statement. Counsel did not accept this and questioned Mother as to why this was the case.

Mother said that Child 1 “has to be interviewed by the Police first otherwise the evidence could be contaminated or tainted.” I can

accept this because Statements of children have traditionally been viewed as unreliable in part because of the concern over their

suggestibility in that certain of the information either arising from questioning or explanation can subsequently become part of the

child’s story. Moreover, if a question is asked many, many times, the child may very well incorporate this into his or her story which

would become part of the child’s evidence and on cross-examination could be successfully challenged and thereby damage the rest of

his or her Statement.

48. It was the belief of Mother that if Child 1 were to see her dad it would have to be controlled. Counsel put it to Mother that there

is no suggestion that the referral to therapy is to precede her meeting her father. Furthermore, it was put to Mother that if access

was granted, it should be supervised. Mother responded by saying that Child 1 has “no wish to see her father. She said she doesn’t

want to see him or that family and she does not want to talk about it”, referring also to Father’s side of her family. Mother said that

Child 1 was very stubborn about it.

49. Mother told counsel for Father that she was opposing this Application and that she does not feel that Child 1 should see any of

Father’s family until after being interviewed by the Gardaí. Her view on this was motivated by her genuine concern for Child 1 and she

didn’t want her to get upset. Should access occur, Mother is convinced that Child 1 “would probably go back to the way she was.”

She needs to come to terms with what has happened to her and the next couple of weeks she will be interviewed by the police.

50. Counsel for Father commenced putting the contents of the sexual abuse unit’s report to Mother. The hypercritical, finicky, fault-

finding exercise which counsel for Father engaged in, in relation to the Report itself, did little to support his client’s Application.

Counsel said that other than what was said to the mother little detail of sexual abuse is recounted in the Unit’s Report and that the

statement “father put his hands down there” is not sufficient to support an allegation of sexual abuse. Furthermore, Counsel put it to

Mother that, “[i]n a child of that age, six to seven, masturbation is quite common.” I interposed on this part of the cross-examination

and asked Counsel to advise us as to what authority he was relying upon in support of that proposition but alas he could not offer

any authority and I would not allow him pursue this. I must say that Counsel’s style and method of questioning this witness was

abrupt and ill-mannered but I felt that if I was to intervene I would leave the Court open to a challenge and so, despite the obvious

upset of the witness, I was more than accommodating to Father’s Application in allowing his Counsel to continue.

51. Counsel for the Father’s next line of enquiry was the medical examination of Doctor 3 in Hospital on 2 September 2008. Next,

Counsel proceeded to the Garda involvement. He wanted to know when it started and Mother told him it was in or around October.

Counsel enquired, “[w]hat Garda did you speak to?” and the mother answered, naming the Garda in question. Mother told the Court

that she first met the Garda in September. She said that she gave a Statement to the Garda about 6 to 8 weeks prior to this hearing.

52. Although Counsel pursued the apparent delay in the Garda investigation and the extraordinary amount of time from the initial

Garda involvement to the recent taking of a Statement, Mother could not advance matters further, saying that seems to be the

system. Counsel put it to Mother that the longer it takes and the elapse of time of seeing her father it is going to be difficult for Child

1. Mother said “[i]t’s the system” and Counsel stated that “[i]f one is to await the system it will have an effect upon the relationship

between father and daughter.”

53. Counsel next cross-examined Mother upon other aspects of her examination-in-chief but she departed little from what she had

said. Mother told Counsel that Child 1 doesn’t like talking about her father and that she would change the subject should the topic

come up. She wouldn’t send a birthday or Christmas card to him and she tossed aside the cards she received from her paternal

grandmother.

54. In relation to the change from Court Ordered Access to the present level of access, Mother stated that she was told by a Social

Worker not to allow Child 1 have contact with Father. The Social Worker was unaware of the Court Order. Counsel put it to Mother

that she was being obstructive, firstly, alleging the abuse and secondly, alleging ‘flashbacks’, namely the nightmares, and that she did

not want Child 1 to have a relationship with her father. Mother said it was Child 1’s decision not to see her father and that her voice

should be heard.

55. That concluded the evidence and the Court was disposed to allowing both sides make legal submissions.

56. Counsel for Father commenced his legal submissions stating that the Unit’s Report and in particular page seven thereof constitute

allegations (see paragraph 13 above). There is no particular evidence supporting the allegations. The allegations show that the father

may have dealt with the child inappropriately but the child is allegedly indicating penetration and there is no evidence of this. Counsel

stressed that on an assessment of the Unit’s Report penetration is not an allegation made. He went on to say that clearly Child 1 had

soiled herself, that this was reported to the child’s mother, as would be normal, and that he had cleaned the child.

57. Counsel for Father said the evidence and detail in respect of the allegations were unsatisfactory: we do not know the who, the

when, the where, the location, etc. He said that Child 1 had undergone four interviews and he questioned the phraseology and the

words used in respect of what Child 1 had said, and it seems to him, the manner in which same was reported, that he placed great

emphasis upon the fact that the accounts given were “not such that would or could warrant the finding that has been come to.” The

finding of the Unit’s Report is that, on the balance of probability, Father sexually abused this child, as the Report states:

“Child 1 is a seven year old girl referred for evaluation of possible sexual abuse. On the basis of the assessment

process as outlined above the conclusion in this instance is that, on the balance of probabilities, this child has been

sexually abused. Child 1 herself is identifying her father”.

58. Counsel for Father ventured to analyse a certain particular aspect of Mother’s evidence. Above, at paragraph 13, you will see

that Mother, anxious to get to the bottom of things, probed Child 1 in relation to Father’s touching, she stated that:

“Child 1 spontaneously demonstrated on a sweater that mother was wearing that had a pocket on it, an in-and-out

movement into the pocket to illustrate the type of touch she was talking about. Mother said that due to her level of

concern over what Child 1 was demonstrating she put her hands [i.e. mother’s] together to represent the vagina

and, according to Mother, Child 1 put her hand inside ‘the vagina’”.

59. Counsel for Father had the impertinence to submit that he would refer to the description given by Mother as the ‘pocket vagina’

and the ‘hand vagina’, in saying this to the Court, he cupped his left hand and with the index finger of his right hand, gestured an ‘in-

out’ action. I restrained myself, difficult though it was, from responding to this unmistakably provocative performance. Clearly,

Counsel did not, nor does not, appreciate the gravity of the case we are dealing with and such deliberately provoking insults and

invective commentary, for example his proposition on masturbation, is not only out of place here but is tantamount to a gratuitous

condescension of the problems and difficulties which this young child has experienced. I go no further than to express my

astonishment and say that I felt that if I was to intervene and rebuke Counsel, I would leave the Court open to a challenge and

despite Counsel not going any where with this nor developing the point, it demonstrates to me that this was mere theatre. I must say

that I was, again, more than accommodating to Counsel. Did he not realise we were talking about the body of a seven-year-old child

here and that such invective was, without doubt, misplaced?

60. To move on, Counsel for Father took issue with the factors which the sexual abuse unit say are indicative of, or result from,

sexual abuse, namely, the sexualised behaviour with her peers, her presentation and conduct at school, developing a “tic” which

disappeared when visitations to her father ceased, and finally, Child 1’s oppositional and defiant behaviour towards her mother, again

which ceased when visitations to her father ceased. Counsel submitted that these were not precise indicators of sexual abuse. Also,

Counsel said that there is no corroboration of any of these factors in the report nor from the interviews. Counsel did not accept that

the conclusions of the Unit’s Report and he questioned if this Unit could reach a decision based upon the balance of probabilities

which he said in this case is ‘entirely unwarranted.’

61. Counsel for Father questioned if the sexual abuse unit had fulfilled their statutory duty in respect of the investigation. The duty of

the Unit “must be balanced with proper fairness to the person under investigation.” In order to achieve this, items of information must

be weighted as to what the child has said and the indicators and the balance must be to either probable or less probable. He

submitted that the ‘balance’ in this case was not weighted ‘appropriately’ or ‘proportionately.’ He said that there was a danger that a

child could by pressure or context give an account which is sought rather than established. He submitted that if a Court accepts

allegations, such as those made here, without being proved 100%, it would be dangerous to come to the conclusions which the Unit

did.

62. Counsel for Father also said that most of the evidence here is hearsay evidence. At the outset, he laid emphasis on the fact that

he could not cross-examine the doctor from the sexual abuse unit nor the child, and consequently, he found himself at a

disadvantage from that point of view and the lack of corroboration. That concluded the oral submissions of Father’s counsel.

63. Mother’s solicitor, in her submissions to the Court stated that we are dealing with a seven-year-old child and the report submitted

was completed by professionals. She pointed out dangers and difficulties experienced by Child 1. Mother’s solicitor made clear that

she has been through the Report and took on board all matters elucidated. In relation to the “washing incident” offered by the father

(at paragraph 88 below), she did not accept this as an explanation in respect of the sexual abuses meted out to Child 1 by her

father. This Report and its contents is now before the Court and could, prior to the hearing, have been challenged by the father, but

it was not and this fact should be taken into account when considering the matter of access. Mother’s solicitor said that her client

was “not seeking to cease access altogether” but rather that at the present time the evidence is that Child 1’s health as of now

dictates against access.

64. Before access could commence, certain matters must first be addressed, not least among these would be a re-introduction to her

father and Child 1 must also have the time to understand what has occurred to her and why. At present, the situation which prevails

is that Child 1 appears to have ‘air-brushed’ her father completely out of her life. Certain therapies and interventions will be necessary

before a re-introduction can occur.

65. Mother’s solicitor submitted to the Court that even supervised access could not in the instant case guarantee the physical safety

and welfare of Child 1. She went on to say that an Order for access at this stage would not be appropriate until such time as the

therapeutic process is undertaken. In this case, the Court ought to look at what is in the best interest of the child, Child 1, and in so

doing, she submitted that at this juncture it would be to make no Order.

66. Counsel for Father, in reply, stated that the Applicant herein, is considering challenging the Report and is awaiting Professor 1 to

give his opinion on the Report and the process involved. It is not envisaged that Prof. 1’s assessment will put the Report through a

forensic test.

67. Furthermore, the HSE have yet to conduct a risk-assessment procedure and it is not known when this will be done. Counsel, in

focusing on some of Child 1’s characteristics and qualities, made the point that there is “…no finding that Father abused this child.”

He also stated that “obviously no good would be served to this child to remain away from her father, unless, the Court finds that

Father, has abused the child.” Counsel said that the evidence was on the balance of probabilities and that being the case on the

balance of probabilities Father did not abuse this child. Counsel said “coaching does happen” but he was not saying it happened in

this case.

5. Burden of Proof

68. In relation to Access and Allegations of Sexual Abuse, Ursula Kilkelly in her eminently instructive and useful text entitled Children’s

Rights in Ireland: Law, Policy and Practice (Tottel Publishing, 2008), at page 153, advises us that:

“[i]n some case, the judge will be able to rely on expert evidence that is unequivocal about whether or not the

abuse happened. This was the case in McA v. McA (unreported, High Court, 17 December 2002) in 2002 where it

was fully accepted that false allegations of sexual abuse had been made by the mother against the father and

Herbert J. went on to reach a decision on custody without taking them into account. Procedural safeguards to be

applied where allegations of sexual abuse are made were set down by the Supreme Court in The State (D & D) v.

Groarke [1990] 1 IR 305. In particular, it held that the court must have before it the evidence from which the

conclusion of child sexual abuse has been drawn. Those acting for the parents are also entitled to have, in good

time for the trial, reports or summaries of evidence which is to be given … This is supported by the case law of the

European Court of Human Rights, notably the case of TP and KM v. United Kingdom [2001] 2 FLR 549, which

although it concerned taking a child into care, is arguably applicable to the private family law context also…”.

69. Ursula Kilkelly cautions us that:

“[i]t is clearly of vital importance that allegations of abuse made during private family law proceedings are fully

investigated in as prompt a manner as possible, and that every effort is made both to protect the child and, where

appropriate, to maintain family contact, during this process. Where investigations are inconclusive, and concern

remains about the risk to the child, it is nonetheless legitimate, and fully in line with the welfare principle, to take

stChild 1 to ensure the child’s protection even though the relevant standard of proof may not have been reached.

In O’D v. O’D and Ors [1994] 3 Fam L.J. 81, the High Court was faced with an unproven allegation of sexual abuse

leading to it permitting the father only limited access which required that one of [his] sisters be present at all times.

The court was concerned that there was a ‘real possibility’ that he had abused his child and worried [about] the

‘obvious real possibility of recurrence’. The view of Geoghegan J. was that a parent’s access can be curtailed where

there is ‘reasonable suspicion of abuse having occurred without it having to be fully proved’. He stated that his

primary consideration was the welfare of the child and that accordingly:

‘The right of access of the father cannot be made dependent on a finding of fact as to whether there

was or was not sexual abuse. Any substantial risk that there was such abuse must be taken into

account in considering access rights’”.

70. It seems to me that the High Court allows the District Court to reach its decision upon the evidence that is before it, if such is

ample and sufficient. However counsel for the Applicant seemed to indicate to the court that without truly examining the whole of the

evidence with microscopic precision, that is submitting all parties and witnesses to cross-examination, that it would be unsafe to

make a finding of sexual abuse. This was the view held by the English Courts quite sometime ago, but this standpoint has changed

with the evolving case law. In fact, some twenty years ago, certain Law Lords, would subject witnesses to the fullest examination,

even children. For example, Lord Stuart-Smith in H v H and C [1989] 2 All ER 740 at 760 stated that:

“[d]irect oral evidence can only be given in civil proceedings if it is given on oath. A child who is too young to give

sworn evidence cannot therefore give direct oral evidence. That applies to both the Kent and London children in K.

v. K.: see Rex v. Brasier (1779) 1 Leach 199. Before a child can be sworn the judge must be satisfied that the child

understands the solemnity of the occasion and is sufficiently responsible to understand that taking the oath

involves an obligation to tell the truth over and above the ordinary duty of doing so: Reg. v. Hayes [1977] 1 W.L.R.

234. There is no power to accept unsworn evidence as there is in criminal cases: see section 38 of the Children and

Young Persons Act 1933, subject to the need for corroboration.”

71. To my mind, what is important is that the judge is satisfied that the child is telling the truth when speaking to and with the

professionals. Geoghegan J. in O’D v O’D and Ors [1994] 3 Fam LJ 81, stated that “a genuine risk falling well short of probability has to

be considered relevant in the exercise of discretion when the court is determining access rights.” Geoghegan J. had concluded that

there were “reasonable grounds for suspicion that something has happened which ought not to have happened.” Ursula Kilkelly, opines

(at page 54) that, “despite the serious issues raised in such cases which require the most delicate balance between the child’s right

to protection and both child and parent’s right to enjoy contact, Irish law has made no provision, nor does it offer any guidance to

the courts for dealing effectively and appropriately with allegations of sexual abuse raised in custody/access cases”.

72. In determining whether or not something has happened or not, in the civil context, the balance of probability is employed. Many,

many writers have attempted to define this burden of proof, but none have attained the simple and succinct definition coined by Lord

Denning in Miller v Minister of Pensions [1947] 2 All ER 372 at page 373-374, in stating that:

“if the evidence is such that the tribunal can say ‘we think it more probable than not’, the burden is discharged, but

if the probabilities are equal, it is not”.

73. Lord Scarman in Khawaja v Secretary of State for the Home Department said that, “[t]he flexibility of the civil standard of proof

suffices to ensure that the court will require the high probability which is appropriate to what is at stake.” Accordingly, in considering

the evidence in this case, the Court is conscious of what is at stake for both the Applicant and Respondent, as well as the impact of

the decision upon the child who is the subject of the Access Application.

74. Geoffrey Shannon in Child Law (Thomson Round Hall, 2005), at page 61, suggests that the aforesaid case of O’D v O’D and Ors

followed with approval the English case of H v H and C [1989] 2 All ER 740. Accordingly, it is necessary to consider this case in

setting out the approach this Court is taking in considering the burden of proof as against the allegations and the evidence.

75. In relation to the ‘burden of proof’, Lord Justice Croom-Johnson, in the latter case, stated that:

“the burden of proof in cases where there is an allegation of abuse of children, either physical or sexual. The proof

of such allegations has always been treated as being dependent on the civil burden of proof, that is on a balance of

probabilities. It was so accepted by the Court of Appeal in In re R. (A Minor) (Child Abuse: Access) [1988] 1 F.L.R.

206. But in In re G. (A Minor) (Child Abuse: Standard of Proof) [1987] 1 W.L.R. 1461, Sheldon J. proposed a

variation. He said, at p. 1466, that, although a balance of probabilities was generally correct, yet:

‘having regard to the diversity of issues that might be raised in such proceedings, I also take the view,

as was expressed by Denning L.J., in Bater v. Bater [1951] P. 35, that the 'degree of probability'

required in any particular context may vary and must be 'commensurate with the occasion' or

'proportionate to the subject matter.' Thus in my opinion, in such proceedings as the present, a higher

degree of probability is required to satisfy the court that the father has been guilty of some sexual

misconduct with his daughter than would be needed to justify the conclusion that the child has been a

victim of some such behaviour of whatever nature and whoever may have been its perpetrator’”.

76. Before considering this case further, it is necessary to set out what the ‘Balance of Probability’ means and its scope of application

as regards what had happened and whether or not something may happen in the future. Again, this is necessitated by the fact that

the Court must be conscious or mindful of the future welfare of the child during the currency of the Access Order. Such an exercise is

carried out to determine whether or not there exists a potential risk into the future based upon historical factors and these features

of the burden of proof were neatly explained by the House of Lords in the case of In re H & Ors. (Sexual Abuse: Standard of Proof)

[1996] AC 563, at 568:

“[d]eciding whether something is ‘likely’ involves assessing the risk or chance of it happening in the future, an

exercise which is wholly different from that involved in determining whether or not something has happened in the

past: Mallett v. McMonagle [1970] A.C. 166, 176E-G and Davies v. Taylor [1974] A.C. 207, 212B-213C. Whether or

not something has happened in the past is decided by the court on the balance of probabilities. It simply asks

whether, on the basis of the evidence, it is more probable than not that it did happen. In contrast, a quite different

approach is necessary when the court has to decide whether something ‘is likely.’ To determine whether or not

something ‘is likely’ to happen in the future the court must, of course, found itself on evidence. Mere concern,

suspicion or unsubstantiated fears are not enough: In re F. (Minors) (Wardship: Jurisdiction) [1988] 2 F.L.R. 123,

132C. But to find that something ‘is likely’ to happen in the future does not require the court to find on the balance

of probabilities that the same thing, or something else, has happened in the past: see H. v. H. (Minors) (Child

Abuse: Evidence) [1990] Fam. 86, 101F, 121C and In re W. (Minors) (Wardship: Evidence) [1990] 1 F.L.R. 203,

215C, 222C, 228E, 229B. Nor, to find that something ‘is likely’ to happen in the future, does the court have to find

that it is more probable than not that it will happen. In its ordinary dictionary meaning, the word ‘likely’ is sometimes

used to mean ‘more likely than not,’ sometimes as connoting a possibility which is ‘less likely than not:’ Davies v.

Taylor [1974] A.C. 207, 222F. Usually in a legal context, and certainly in section 31(2)(a) of the [the English] Act

of 1989, ‘likely’ is used in the latter sense. ‘Likely’ in section 31(2) (a) does not mean ‘more likely than not.’ As the

Court of Appeal [1995] 1 F.L.R. 643, 650H, 654D, 657E, unanimously and correctly recognised, it is enough that

there is a ‘real’ as opposed to a merely ‘fanciful’ or ‘speculative risk:’ Newham London Borough Council v. A.G.

[1993] 1 F.L.R. 281, 286F, 288A, 288D-E, 289C-D.”

77. In H v H and C [1989] 2 All ER 740 at page 745, Croom-Johnson LJ stated that:

“[t]he difficulty of proving what will happen in the future is closely analogous to the assessment of damages in

actions for negligence. In Mallett v. McMonagle [1970] A.C. 166, 176, Lord Diplock said:

‘In determining what did happen in the past a court decides on the balance of probabilities. Anything

that is more probable than not it treats as certain. But in assessing damages which depend upon its

view as to what will happen in the future or would have happened in the future if something had not

happened in the past, the court must make an estimate as to what are the chances that a particular

thing will or would have happened and reflect those chances, whether they are more or less than even,

in the amount of damages which it awards.’

The way in which those chances are used is well illustrated by cases where an injured plaintiff is left with a chance

that later he may develop epilepsy. It cannot be proved at all that he will develop it, but if there is a chance then

he is compensated for that risk. A plaintiff with a 30 per cent chance recovers more money than a plaintiff with a 5

per cent chance. This reasoning applies to the assessment of the risk that a child may be abused in the future. The

assessment is made at the time of trial, but the standard of proof is not on the balance of probabilities. It is made

on the lines adopted in In re F. (Minors). Miss Price's submission [counsel in the English case] is clearly correct.

‘The onus of proof in both these cases, H. v. H. and K. v. K. should be applied accordingly in deciding on

a balance of probabilities whether the father in each case was guilty of sexually abusing his children’”.

78. This English decision merely illustrates that the burden of proof is not an esoteric or impenetrable concept as most people think

but rather less obscure than what it appears. In deciding whether Father in the instant matter is guilty of sexually abusing his

daughter, regard must be had to the evidence. I use the word ‘guilty’ in this case because, interestingly, although Croom-Johnson LJ

was dealing with a civil case, and placed must emphasis upon this, he used the word ‘guilty’ rather than ‘responsible’ or ‘liable’ and I

do not think this was an oversight but rather an intention to demonstrate what Lord Scarman termed as ‘the probability which is

appropriate to what is at stake.’

79. Butler-Sloss Lord Justice, in H v H and C [1989] 3 All ER 740 at 750 stated that:

“[t]here are in my view two stages in the decision making where a judge exercises his discretion in child cases. He

evaluates the evidence adduced both as to facts already in existence and frequently expert opinion as to the future

advantages and risks of possible decisions as to the child’s future.

At the second stage upon the evidence provided to the court the judge exercises his discretion with the test of the

welfare of the child paramount and weighs in the balance all the relevant factors and assesses the relative weight

of advantages and risks to a child of each of the possible courses of action. He may have found individual facts,

such as inappropriate knowledge or behaviour, which constitute a high degree of concern about the child without

being able to say on the test that they amount to actual abuse. They are, however, relevant to the exercise of the

discretion. He may have sufficient evidence of concern about the past care of the child to be satisfied that the

child was in a potentially abusing situation without having sufficient evidence to be satisfied as to the extent of the

abuse in the past or the identity of the abuser. He has to assess the risks and, if there is a real possibility that the

child will be at risk, he will take Child 1 to safeguard the child. The assessment of the possibilities is crucial at this

stage and he may decide as Sheldon J. said in In re G. [1987] 1 W.L.R. 1461, 1467 that it is an ‘unacceptable risk.’

But I respectfully agree with Nourse L.J. in In re F. [1988] 2 F.L.R. 123, 132, that ‘the court can only act on

evidence.’ Otherwise, the judge would be dispensing palm tree justice.”

80. Butler-Sloss LJ went on to draw an analogy with a claim for damages, where the House of Lords, in a fatal accident case, were

evaluating the possibility of a reconciliation between the deceased and the widow. He quoted Lord Reid’s analysis in Davies v Taylor

[1972] 3 All ER 836 at page 838 and said, these ‘words might usefully be adapted to the duties of a judge in the exercise of his

discretion in child cases’, namely:

“[t]o my mind the issue and the sole issue is whether that chance or probability was substantial. If it was it must be evaluated. If it

was a mere possibility it must be ignored. Many different words could be and have been used to indicate the dividing line. I can think

of none better than ‘substantial,’ on the one hand, or ‘speculative’ on the other. It must be left to the good sense of the tribunal to

decide on broad lines, without regard to legal niceties, but on a consideration of all the facts in proper perspective.”

81. I fear that further analysis of the law in this matter will fall foul of the ‘law of diminishing marginal returns’ and thus it is now

necessary to apply the law to the facts of this case. I have heard the evidence of both the Applicant and Respondent and also

considered the documentary evidence. I have taken pains to set out this in as much detail as time and space will permit me. I have

considered all aspects of the evidence and this will become apparent when applying the law to the facts in the case. I can say that I

have also detected some inconsistencies in the evidence surrounding certain of the facts, this also will become apparent. One must

be careful of the dangers of reliance upon expert evidence which is based on supposition and/or hypothesis, but in the instant matter,

the sexual abuse unit’s Report is one from an expert in this specialised area of child care and thus ranks higher than same, that is the

evidence of a mere doctor. I mean no insult here but am emphasising that a critical and analytical eye is brought to bear upon the

contents of the Assessment Report so as to ensure that all relevant, significant and pertinent considerations form part of the

‘balancing exercise’ which is required in order to reach a decision so that there is sufficient reliable evidence supporting the decision

taken. In the instant matter, I hope I have achieved this.

6. Determination of Allegations

82. In order to determine the allegations, it is necessary to recapitulate upon certain of the evidence. It is the view of Mother, as

stated in the sexual abuse unit’s Report, that Father was always “very selfish” sexually. She stated that she would comply with his

requests for sex as she was afraid that he would leave her. She described how he liked her to shave her pubic hair and liked acts of

anal sex. Such preferences are neither lewd nor coarse and do not assail those preferences which generally prevail between

consenting adults. Accordingly, in itself nothing great turns upon this. However, the Applicant in this matter has been convicted of

possession of Child Pornography, along with the shaven genitalia of an adult woman which undeniably resembles that of a girl-child is

a relevant factor in this case, in determining the probability of whether or not abuse took place in that it may perhaps predispose the

Applicant to the gratification of satisfying his sexual appetite without restraint given the excessive personal hygiene campaign

observed by the Applicant in respect of this little girl. The conviction of possession of Child Pornography, as a risk, as aforesaid, will

be addressed a separately in this decision.

83. Prior to the disclosures, Child 1 was prone to masturbate profusely. Mother reported that Child 1’s behaviour and attitude towards

her had markedly deteriorated the year prior to her disclosure in February 2008, say in or around February 2007, when Child 1 was six

years of age or thereabouts. It was submitted to this Court by counsel on behalf of the Applicant that masturbating at this age is

common and normal. I could not accept this and asked him on what authority he was relying upon in respect of this proposition. He

could not offer any authority whatsoever and I made no secret of both my astonishment and disgust with the manner in which this

question was put to Mother. I am not surprised that Father’s counsel could offer no authority and I upon my own industry found

authority to the contrary. In Meadow & Smithells, Lecture Notes on Paediatrics, Blackwell Scientific Publications, 1978, at page 57 et

sequential:

“human sexual development is concentrated into two relatively brief periods of time. Primary sexual differentiation

takes place from the 6th week of embryonic life … Secondary sex characteristics develop at puberty in response to

pituitary gonadotrophins. The trigger which releases these hormones is still unknown. The age of onset of puberty is

very variable, being influenced by racial, hereditary and nutritional factors. In Britain today breast development

begins at 11 years on average, pubic hair a little later and menstruation at 13 but ranging from 9 to 17 years”.

84. Generally, this seems to indicate that in a natural environment a girl would or could commence masturbation at a much later age

than six as contended by Counsel because of the absence of the on-set of puberty (this is really a matter for the medics). However,

as to the normality of a six-year-old naturally indulging in this activity, I find such a proposition absurd and bizarre. Also, Mother

stated that the activity of masturbation has ceased since Child 1 is no longer is seeing her father, this is also a relevant factor in this

case, in determining the probability of whether or not abuse took place. Masturbation is a sexually stimulating activity and the Role of

Sexual Stimulation was examined by Haugaard & Reppucci in The Sexual Abuse of Children (Jossey – Bass Publishers, 1989) at page 88

et sequentia, and they said that:

“[t]he psychoanalytic view of the effects of child sexual abuse maintains that the sexual stimulation of a child at an

inappropriate age causes the negative consequences. Although the mature ego of the adult or older adolescent can

manage this stimulation and the unconscious Oedipal conflict that is excited, the immature ego of the young child

cannot. Anxiety is caused by this inappropriate sexual stimulation and by the child’s concerns about his or her

inability to control sexual impulses: (Lewis & Sarrell, Some Psychological Aspects of Seduction, Incest and Rape in

Childhood, Journal of the American Academy of Child Psychiatry, 1969, Vol. 8, 606 to 619; M. Sugar, Sexual Abuse

of Children and Adolescents, Adolescent Psychiatry, 1983, Vol. 11, 199 to 211.). A higher level of anxiety is aroused

by incestuous than non-incestuous abuse because of the closeness of the sexual act to the child’s Oedipal

fantasies. The victim attempts to deal with the anxiety through the development of a number of repetitive,

defensive behaviours. Some of the behavioural and interpersonal consequences can be a result of the development

of these defensive behaviours. One possible defence is for the victim to identify with the abuser, which may cause

the victim to become physically or sexually abusive to others. Also, the victim’s guilt may be a result of

identification with the abuser and internalizing the guilt that the abuser feels: (S. Ferenczi, Confusion of Tongues

Between the Adult and the Child, International Journal of Psychoanalysis, 1949, Vol. 30, pages 225 to 231).

…If the stimulation of the sexual activity results in physical pleasure for the child, the child may begin to associate

physical pleasure and warm feelings with the exploitative situation of the abuse. The victim may encourage his or

her own future exploitation because the exploitation has taken on the same properties as the physical pleasure. In

psychological terms, the unconditioned response of physical pleasure evoked by the unconditioned stimulus of

physical stimulation becomes paired with the conditioned stimulus of an exploitative situation. Eventually, the

presence of an exploitative situation alone brings about the physical pleasure.”

85. To move on, Child 1’s actions and behaviour prior to her disclosures were a source of genuine concern to the mother.

Developmental delay, behavioural problems, ‘out-of-character’ acts, etc. have, in the past, been precursors to detection of sexual

abuse generally, and having received therapy, invariably the child resumes a path of normality. Mother reported that, since Child 1’s

disclosures, she feels that her daughter is more relaxed and settled and has, again, become loving and friendly toward her again. I

believe this is also a relevant factor in this case, in determining the probability of whether or not abuse took place.

86. Another relevant factor to be taken account of is the account given by the child, Child 1, about how her daddy showers her.

When showering herself down in mummy’s house, Child 1 at one stage spontaneously stated to her mother that “sometimes my daddy

puts his hand here” and Child 1 pointed to her private parts. Clearly, if such incidents were of ‘an innocent or harmless act’, for

example occurring for the purpose of drying, cleaning or washing off shower-gel, etc., it would not nor could provoke such

unforgettable feelings in a child of such tender years who undoubtedly would see no wrong in such innocent activities and would

rather harbour a feeling of security and safety within a father’s or mother’s presence than one of fear or defilement. Such incidents

which did happen, evoked insecurity and anxiety in this child because of the inappropriate handling, the touching, and the manner of

physical contact during the showering regime conducted and carried out by the Applicant.

87. Child 1’s response to her mother’s advice to tell her father to cease touching her genitalia, was “I’m too scared to” and this

response was not suggested or prompted and therefore must have been a genuine state of mind of this child in respect of improper,

unacceptable and unseemly manner in which the Applicant was either touching or stroking this child.

88. These incidents were neither isolated nor solitary, but happened on a number of occasions causing great anguish to this child. Yet

the Applicant states he had an explanation for this inappropriate touching of the child’s genitalia. In response to a question upon this

area posed by the sexual abuse unit, namely that he had touched Child 1 inappropriately in the shower and he had put his hands

down her pants, the Applicant’s reply is recorded in the Assessment Report as follows:

“Father stated that he felt he believed he could satisfactorily explain the first concern and that he had previously

reported this to Mother. Father went on to describe how, before Christmas 2007, Child 1 had come into his and his

wife’s bedroom stating ‘I farted a poo.’ Father stated Child 1 had a tummy upset and had severe diarrhoea. He

stated that Child 1 was upset over the fact that she had soiled herself and that he had put her into the shower to

‘take the poo off her.’ He described how the faeces were in all of Child 1’s crevices and that he had used both the

shower-head and his hand on her body to remove same. He stated that at the time he had said to Child 1 ‘I need to

wash your bits’ and had further advised her ‘you need to open your legs.’ Father stated this was a once off incident

and that he and Child 1 were able to joke about it the next day at breakfast time. He stated that he had reported

the incident to Mother and that Child 1 hadn’t made any subsequent reference to the fact that her father had to

wash her. He stated that he believes Mother has over interpreted the incident in the shower and is ‘blinkered’

regarding possible sexual abuse.”

89. Child 1’s account of this incident is that it is a once-off occurrence and is in stark contrast to that of Father’s and the sexual

abuse unit notes that, “[t]his particular incident was explored directly with Child 1 as a possible explanation for the current concerns

but Child 1 is stating that it was not this incident she has told mother about when referring to ‘the bold thing’ but rather ‘lots of

things’ some of which she has, to date, not told her mother. A propos, Child 1’s account to the Unit’s Report states that:

“Interviewer then directly enquired of Child 1 if she had ever been sick in her father’s house and, in this context,

reported to Child 1 what her father had said about her ‘farting a poo.’ Interviewer then enquired whether this was

the bold thing she didn’t like, i.e. when dad was showering and cleaning her on this occasion or whether there were

other things that had happened that she didn’t like? In response to this Child 1 said ‘lots of things.’ Child 1 was then

reminded in a general way by interviewer regarding what she previously said to her mother regarding her father

doing things to her that she didn’t like. Interviewer enquired specifically of Child 1 if she was telling the truth when

she had told her mother about these things. Child 1 nodded in the affirmative by way of answering this question.

Interviewer asked if Child 1 had told mother about all the things that has happened, and Child 1 said she hadn’t”.

90. Having analysed these responses for quite some period a number of matters arise which prompt me to question the response from

Father: is it untruthful or pretentious? It will be clear to all and sundry how fantastic this story is on a full analysis of it. Even if one

could not say which portion of the story is true or that which is false, matters not, but more sinisterly if untrue it cannot escape

one’s attention that Father could and would fabricate an explanation to conceal his sexual abuse of his daughter in a desperate

attempt to mask being uncovered or identified. Then the welfare of the child ranks not on his scale. Why do I say this? Firstly, if, as

Father states, the child was suffering with ‘severe diarrhoea’ there is no evidence of bringing this child to the doctor nor any evidence

of what medication had been prescribed given the severity of the condition; not even an over-the-counter Dyoralite was

administered. Also, the symptoms miraculously disappeared after the child had a shower, no explanation was offered for this!

Secondly, Father said that he advised the child that he ‘needed to wash her bits’, yet Child 1 was aware of the names of these ‘bits’;

then again, I must accept that Father may still have used such descriptions in advising the child of same. Thirdly, Father states that

Child 1 was upset and yet, the next morning, he and Child 1 were able to joke about it. I find this extraordinary because, if anything,

the child, who was clearly embarrassed, would have expected consolation and support; such a child would be told not to worry, etc.;

thus, I do not believe what Father says here; one would not joke about such an incident but rather console. Fourthly, and finally, the

time-continuum from the “farting of the poo” to the clean-up operation was seamless and uninterrupted. When Child 1 entered the

bedroom, as Father contends, the act of ‘farting a poo’ would have just have happened, that is, little time would have been afforded

to allow the excrement solidify which would have necessitated excessive handling. Also, it was not alleged that Child 1 had said “I did

a poo” but rather had “farted a poo” an instant action of very recent occurrence, thus given the fleeting period of time between the

‘farting’ and the showering, the shower-head itself would have been more than ample to effect a cleaning of all parts in that diarrhoea

manifests itself by frequent rapid passage of projectile watery motions rather than a firm solid substance and thus little handing or

touching would have been necessitated.

91. In paragraph 22 above, Father spoke about what happened on a weekend stay in relation to personal hygiene. Purposefully

concentrating on this area to the total exclusion of all else is quite extraordinary. Not once does he say what they did together, what

games they played, what they watched on TV what they spoke about, their interests, their likes or dislikes, their music, their

conversations, etc. He merely focused in upon the hygiene aspects. This, together with the ‘showering incident’, are relevant factors

in this case in determining the probability of whether or not abuse took place, the latter being the most seminal.

92. In Social Worker 1’s report, dated 7 May 2009, she advises that “Father was already having supervised contact with Child 1 prior

to Child 1’s allegations and is aware that any future contact would need close supervision.” This is an extraordinary state of affairs if

sexual abuse occurred in that supervision itself was not capable of preventing the alleged sexual abuse of this child and thus exposed

the child to harm under the very attention of the supervisor. I do not know the level of supervision but clearly a person who has been

convicted of possessing images of Child Pornography ought not to be permitted to bathe or shower a little girl.

93. The Applicant, Father, acknowledges that Child 1 is unaware of his conviction for possession of Child Pornography: see the sexual

abuse unit’s report page 11, lines 9 to 10. On or about 27 June 2008, Father was informed of the outcome of the assessment of the

Unit. At page 15 of the report, Father stated that he was absolutely devastated on hearing the opinion of the assessment team that

they found that he had sexually abused his daughter. Father questioned whether or not this was a malicious allegation.

94. Father wanted a second opinion and while acknowledging that it would be difficult for Child 1 to go through a repeat evaluation,

overall he felt he needed to protect himself. Under cross-examination by Mother’s Solicitor, Father said that he has been accused and

he wants to clear his name. At no stage during his evidence-in-chief or during cross-examination did Father express any interest or

concern in the health or welfare of Child 1, yet he placed the need to clear himself and protect his good name as paramount to Child

1’s needs and requirements, so much so that he would subject this child to further examination and investigation irrespective of the

effect this would have on the child. The sexual abuse unit advises against further examination, investigation and assessment here and

suggests that “Given Child 1’s level of distress as evidenced during the interview process it is felt that Child 1 would benefit best from

a non-directive play therapy approach which would allow her an opportunity to process all of her life experiences to date.”

7. Applicant’s Conviction

95. The golden thread running through our system of justice is that a person is innocent until proven guilty. Past behaviour alone,

without more, cannot be supportive of allegations of more recent vintage. The Applicant herein has been convicted of possession of

Child Pornography; can this be taken into account when considering whether or not sexual abuse has occurred in the instant matter?

Also, can the fact that the Court has placed the Applicant’s name on the Sexual Offenders Register be taken into account? Can these

facts be legitimately and fairly taken into account in evaluating the evidence in respect of sexual abuse notwithstanding the prejudice

to the Applicant?

96. In In re O (Minors) (Care: Preliminary Hearing) [2004] 1 AC 523, Lord Nicholls of Birkenhead instructs us that it is right to do so.

His observation in his judgment, at page 536, reasoning out the why and the wherefore, in the following way he states:

“[c]ourts and tribunals constantly have to decide whether an alleged event occurred. The general rule is that if the

likelihood that a past event occurred is proved to the requisite standard the law regards that event as definitely

having happened. If not, it is treated as not having happened. In deciding whether proof to the requisite standard

has been made out, the decision maker normally has regard to all evidential material which is of probative value.

But the general rule does not always apply. Questions of proof of a past event arise in widely varying contexts.

Sometimes the law limits the matters the decision maker may take into account. When this occurs, the reason is

legal policy, not the requirements of logic. There may, for instance, be a particular category of matters the decision

maker is not permitted to consider. The most obvious example concerns criminal trials. In general, evidence of

previous misconduct is not admissible in criminal trials. Although such evidence may have probative value, in general

it is excluded from consideration by juries because its probative value is outweighed by the risk of prejudice. This

exclusionary rule is subject to exceptions in certain types of cases, where the accused should not be permitted to

present himself as a person of good character or where the previous misconduct has particular probative value, for

instance, as ‘similar fact’ evidence.

The same broad principle is applicable when courts or tribunals peer into the future and assess the likelihood that a

particular event will occur. This is an inherently imprecise exercise, so far as human conduct is concerned. In theory

it is a different exercise from deciding whether somebody did or did not do something in the past. Whether or not an

alleged event occurred in the past raises a question of proof. In truth, the event either happened or not. That is

not so with a future forecast. The future has not happened, and future human conduct is never certain. But in

practice, the past is often as uncertain as the future. The judge cannot know for certain what happened and can

only assess the degree of likelihood that something happened. The same is true of the future. The decision maker

has to assess the degree of likelihood that an inherently uncertain event will occur. The degree of likelihood—

beyond reasonable doubt, more probable than not, real possibility and so on—required in any particular legal context

raises a question of legal policy.

Here again, the policy decision on the requisite degree of likelihood is a separate question from the policy decision

on the matters the court or tribunal may take into account. As to the latter, the matters a decision maker may take

into account are normally bounded only by the need for them to be relevant, that is, they must be such that, to

greater or lesser extent, they will assist the decision maker in reaching a rational conclusion. The context may,

indeed, require that this principle should apply in its full width: see, in the context of asylum cases and the

difficulties of proof which beset asylum seekers, Karanakaran v Secretary of State for the Home Department

[2000] 3 All ER 449, especially Brooke LJ, at pp 458-470, and Sedley LJ, at pp 477-479. The legal context may

permit, or require, the decision maker to take into account a real possibility that a past event occurred, or even a

mere possibility. Rationality does not require that only past events established on a balance of probabilities can be

taken into account. Or the context may require otherwise. The range of matters the decision maker may take into

account when carrying out this exercise depends upon the context. This, again, is a question of legal policy, not

logic.”

97. Given the nature of the allegations in the instant matter, the Applicant’s previous conviction of possession of Child Pornography

must be taken into account — not because of its probative value, but because the context in which this decision is taken would

render the conclusions unintelligent to ignore or discount such factors despite the risk of prejudice to the Applicant; in the words of

Lord Nicholls, “the matters a decision maker may take into account are normally bounded only by the need for them to be relevant,

that is, they must be such that, to greater or lesser extent, they will assist the decision maker in reaching a rational conclusion.”

Accordingly, the Applicant’s conviction of possession of Child Pornography, and his inclusion in the Sex Offenders Register, are

relevant factors in this case in determining the probability of whether or not abuse took place as alleged.

8. Decision on Allegations

98. I have above set out the law and have evaluated the evidence in this matter. Now it falls on me to weigh both these features of

the case as against the welfare of the child and decide the case accordingly, as Butler Sloss LJ suggested. Also, where difficulties

arise in exercising one’s discretion and there exists reasonable grounds of suspicion, Geoghegan J in O’D v O’D states that this should

be taken into account.

99. The evidence in this case is as it is and notwithstanding that at no stage was the Applicant seen acting inappropriately with Child

1 the logic of the chain of reasoning set out above results in an inescapable conclusion that he sexually abused his daughter,

especially when one has regard to:

• The Applicant’s sexual history with his wife and his preferences thereof;

• The child’s precocious commencement of masturbation and the fact it had ceased since contact with the

Applicant stopped;

• The conduct and behaviour of the child has settled down, again since contact with the Applicant stopped and the

child has resumed a loving relationship with the mother;

• The evidence of the child, the mother, and the sexual abuse unit that the child was sexually abused by the

father, to my mind, has been proved to the requisite degree;

• I am satisfied that the sexual abuse happened or occurred during periods of purported supervised access and that

the child has not made full disclosure yet;

• That the Applicant places ‘his good name’ before that of the child, satisfies me that he would do all he could to

escape detection to the detriment of the child’s welfare;

• The Applicant was convicted of possession of Child Pornography and placed on the Sex Offenders Register; and

• The Applicant had the means, motive and opportunity to sexually abuse his daughter.

100. Accordingly, I find that the Applicant on the basis of a high degree of probability is guilty of sexual misconduct with his daughter

and has sexually abused his daughter and the child has been a victim of such behaviour at the hands of her father, namely the

perpetrator. Having made this finding, I must now look at the substantive matter of the Access Application.

8. Access

101. Alan Shatter’s Family Law (fourth edn, Bloomsbury, 1997) at page 563-564, states that:

“[i]n determining a dispute as to access, the welfare of the child is the first and paramount consideration. The court

is reluctant to refuse a parent access but it will do so if the child’s welfare demands it…In making access orders the

courts essentially seek to ensure, in so far as that is possible, that a child continues to maintain a full and

meaningful relationship with the non-custodial parent: SW v. FW [1995] 1 Fam LJ 24 at page 25. In reality this is

only achieved if both parents fully co-operate with each other in implementing whatever access arrangement is

provided for by way of court order. It is also necessary for each parent to apply a degree of common sense and

flexibility to vary such arrangements by mutual agreement, if necessary, without having to regularly and continually

apply to the courts to resolve access disputes between them. If one parent withholds his or her co-operation,

refuses to be reasonable or flexible, or continuously fails to comply with access orders made, the child or children to

whom access is a right all too often become damaged victims of a matrimonial war of attrition fought by parents

engaged in continuous and never-ending litigation.”

102. The present Application is brought under section 12 of the Guardianship of Infants Act, 1964 which provides that, “[t]he court

may vary or discharge any order previously made by the court under this Part.”

103. The Court has already made an order pursuant to section 11 of the Act and it is now being asked to regularise the present

situation whereby access had been discontinued. Section 9 of the Children Act, 1997, amended section 11 of the Guardianship of

Infants Act, 1964 in that the Act of 1964 was amended by the insertion after section 11 of the following sections:

“Custody may be granted to father and mother jointly:

11A.—For the avoidance of doubt, it is hereby declared that the court, in making an order under section 11, may, if

it thinks it appropriate, grant custody of a child to the child's father and mother jointly.

Relatives may apply for access to child:

11B.—(1) Any person who—

(a) is a relative of a child, or,

(b) has acted in loco parentis to a child,

and to whom section 11 does not apply may, subject to subsection (3), apply to the court for an order

giving that person access to the child on such terms and conditions as the court may order.

(2) A person may not make an application under subsection (1) unless the person has first applied for

and has been granted by the court leave to make the application.

(3) In deciding whether to grant leave under subsection (1), the court shall have regard to all the

circumstances, including in particular—

(a) the applicant’s connection with the child,

(b) the risk, if any, of the application disrupting the child’s life to the extent that the child would

be harmed by it,

(c) the wishes of the child's guardians.

(4) In this section, a relative of a child who is the subject of an adoption order includes—

(a) a relative of the child’s adoptive parents,

(b) the adoptive parents of the child's parents, or

(c) a relative of the adoptive parents of the child’s parents.

Operation of order not to be stayed pending appeal unless so ordered:

11C.—The operation of an order under this Act shall not be stayed pending the outcome of an appeal against the

order unless the court that made the order or the court to which the appeal is brought directs otherwise.

Provision relating to orders under sections 6A, 11, 14 and 16:

11D.—In considering whether to make an order under section 6A, 11, 14 or 16 the court shall have regard to

whether the child's best interests would be served by maintaining personal relations and direct contact with both

his or her father and mother on a regular basis.”

104. The present Application is more akin to a new or fresh application for access under section 11 but may be dealt with under

section 12 as the appropriate section.

105. Speaking upon the topic of Access, Ursula Kilkelly in Children’s Rights in Ireland: Law, Policy and Practice (Tottel Publishing,

2008) at page 148 et sequentia states that:

“[w]here the access application is contested, the court can be placed in the unenviable position of devising and

imposing an appropriate solution on the parties. This is far from ideal not least given the difficulties involved in

‘ordering’ recalcitrant, hurt or angry parents to allow the other parent, against whom many of these emotions are

directed, time with their child…

More recent Irish case law, supported by the addition of section 11D, has reflected the shift away from viewing

access as a parental right, towards one which reflects the importance to the children of having direct contact with

their parents. In MD v. GD (unreported, High Ct., 30 July 1992) for example, Carroll J. held that the court was

concerned with the right of the child to access, rather than the right of the adult. Similarly in EG v. DD [2004] IEHC

265, Peart J. noted that despite the serious acrimony between the parents ‘it is in the best interests of their son

that he has the company of both parents as much as is possible.’ This case law is in line with Article 9 of the CRC

(Convention on the Rights of the Child) which requires states to respect ‘the right of the child who is separated

from one or both parents to maintain personal relations and direct contact with both parents on a regular basis,

except if it is contrary to the child’s best interests.’”

106. Under section 3 of the Guardianship of Infants Act, 1964 it is provided that:

“[w]here in any proceedings before any court the custody, guardianship or upbringing of an infant, or the

administration of any property belonging to or held on trust for an infant, or the application of the income thereof, is

in question, the court, in deciding that question, shall regard the welfare of the infant as the first and paramount

consideration.”

107. Section 11 of the Children Act, 1997, inserts a new part in respect of safeguarding the interests of children. Section 11 inserts a

section 25 into the 1964 Act to reflect the “wishes of child.” The section provides that:

“[i]n any proceedings to which section 3 applies, the court shall, as it thinks appropriate and practicable having

regard to the age and understanding of the child, take into account the child’s wishes in the matter.”

108. Ursula Kilkelly, in her above-mentioned text, advises that:

“[t]he court when determining questions of access must be guided by the requirement under section 3 of the

Guardianship of Infants Act 1964 that the welfare of the child must be the first and paramount consideration.

Although welfare is defined in the same terms as custody, in reality most applications for access will succeed unless

there are serious concerns relevant to the welfare of the child that dictate otherwise. This is an implicit

acknowledgement of the importance to both child and parent of their need to maintain regular and direct contact,

where they are not living together. This is reflected in the terms of Article 9 of the Convention on the Rights of the

Child and given statutory expression in section 11D, also added by section 9 of the Children Act 1997, which

provides that in such cases, the court shall have regard to whether the child’s best interests would be served by

maintaining personal relations and direct contact with both his or her father and mother on a regular basis.’”

109. Shatter’s Family Law, at page 565 et sequentia, states that:

“[i]n applications brought under section 11 of the 1964 Act, interviews of children have been undertaken on

occasion by members of the judiciary where appropriate. Such interviews are of an extremely informal nature and

usually take place in the trial judge’s room or chambers. Not only what is said by the children at such interviews but

also their general behaviour and appearance may influence the court and form part of the basis of any decision

made. A judge is under no obligation to accede to a request to interview a child or children prior to deciding a

custody or access dispute and it has been acknowledged that when such interviews take place the court has to be

on its guard when considering what a child says, as the child may have been coached by one of his or her parents.

The courts will not be bound by the wishes of a teenager where the custodial arrangements favoured by the child

are clearly contrary to the child’s welfare and long term development…Upon a child reaching such an age, in the

absence of grave danger to the child’s welfare, it is very unlikely that the child’s wishes will not be complied with.”

110. In the instant case, I do not believe that an interview would serve any purpose in that the wishes of the child were canvassed

to the Court by way of the sexual abuse unit’s report and the mother’s evidence.

111. At one stage, irrespective of the child’s view, the court tended to, in certain cases, force access, even upon a reluctant child. I

personally doubt very much, particularly having regard to the unfolding case law upon this area, that the “strong judicial tendency in

favour of granting access [as] exemplified by A MacB v G MacB, unreported, High Ct., Barron J., 6 June 1984” continues to hold much

authority in light of various guidelines issued by the respective Children’s Rights Bodies. However, Geoffrey Shannon, in Child Law

(Thomson Round Hall, 2005), at page 55 suggests that this case is still of persuasive authority. The case concerned a father who was

granted access to his children despite strong evidence that the children were afraid of him. Moreover, access was given despite the

fact that the father was alleged to have caused malicious damage to property. Barron J., notwithstanding, considered that it was

“essential that the children know that they have a father and … that their father is able to take the place of a father in their lives.”

112. I would humbly submit that it appears that (a) the paramouncy of the child, and (b) the wishes of the child, are given greater

weight now than as was recognised by Barron J. then even though no material change in section 17(2) of the 1964 Act has come

about. In this regard, Duncan and Scully in Marriage Breakdown in Ireland, Law and Practice (Butterworths, 1990) at page 370, state

that:

“[i]t should be noted, in this context, that children have ‘imprescriptible’ though undefined rights under Article 41.5

of the Constitution, and that section 17(2) of the Act of 1964 states that nothing in the Act shall ‘diminish the right

which any infant now possesses to the exercise of his own free choice.’”

113. Accordingly, in deciding the issue of access the child’s wishes must be meaningfully considered. The court is not obliged to follow

blindly the wishes of the child because the child may not possess adequate capacity to consider benefits which access may bring.

Ursula Kilkelly indicates that it is rare for a court to refuse access and, at a footnote on page 149, she states that in 2006 there were

3,281 applications for access with only 79 refused. In 2007, there were 3,475 applications considered, and only 75 refused, and as

regards 2004 and 2005 similar figures are shown.

114. In the instant case, Child 1 has stated that she does not wish to see her father, the Applicant herein. Given that she has been

sexually abused by her father and given that her wish is not to have access, the court must, in the instant matter and having regard

to all the circumstances set out above and the welfare of the child, must deny the application for access. Such refusal to grant

access is compatible with Article 9 of Convention on the Rights of the Child in that granting such an Order would be contrary to the

child’s best interest as I believe there is a real likelihood of such abuse happening in the future.

9. Breach of Access

115. Given the chain of evidence set out above, it would be remiss of me not to deal with the section 5 Application in respect of the

alleged breach of access, notwithstanding that same has been withdrawn by the Applicant Father.

116. An Access Order may be varied by way of application on notice at any time because the Order is seen as interlocutory. An

application for variation or discharge may be accompanied by, as in this case, a summons under section 5 of the Courts Act, 1986 for

a prosecution. Duncan and Scully in Marriage Breakdown in Ireland, above cited, indicate that:

“[v]ariation and discharge are of importance in cases of child sexual abuse. If such abuse is disclosed, and there is

a pre-existing access order, an emergency application to discharge the order may be issued. The court can abridge

the time for service and order substituted service. Whether the court is prepared to list the discharge before the

next date of access is at the discretion of the court. The lists may be full, or the court may feel that there is

insufficient notice to the other spouse. In those circumstances, it may be more appropriate to seek an injunction in

the Circuit Court or High Court to restrain further access pending a hearing of an application to discharge the order

in the District Court. This may seem like forum shopping, but there should be an imaginative use of emergency

procedures to protect a child, provided there is full disclosure of all facts to the court, and there is no abuse of

process.”

117. In cases concerning breach of access, the burden of proof is beyond reasonable doubt and thus strict proofs are required. It is

the custodial parent or guardian or ‘any person having actual custody’ who is guilty of the offence if he or she fails or refuses to

comply with the requirements or directions to exercise access in accordance with the terms of the order. There is a time limit of six

months in which the prosecution can be brought.

118. In this case, the Court made an Order for Access, however, after the disclosure of sexual abuse by the father on the child,

access was terminated on mutually agreed terms. Father was advised that a ‘risk assessment’ was to take place because of his

conviction of possession of Child Pornography, and that the HSE informed him that only supervised access was to take place.

However, in or around 21 or 22 February 2008, when the disclosures were made by the child of alleged sexual abuse, Father advised a

Social Worker that he, namely Father, had no intention of having contact with the child during the investigation of the allegations and

that he wanted to co-operate fully with the HSE. (See Social Worker Minute dated 6 May 2009). Father was thus obliged to make

Application to this Court to vary access prior to any alleged breach occurring.

119. It seems to me that the Respondent mother in this case is blameless in relation to the change of access in that the agreement

of Father not to see his daughter, as aforesaid, and the fact that the HSE advised Mother, the Respondent herein, that she was not

to allow unsupervised contact between her daughter and Father, the father at any stage prior to the investigation of the abuse, thus

fundamentally changing the actual terms of the Order: (See Social Worker Minute dated 6 May 2009). Given that the breach occurred

more than six months ago, given that Father was complicit in the breach, and given that access is interlocutory, the perpetration of

the abuse terminated access notwithstanding the absence of an order of variation because a Court Order cannot expose a child to a

risk of harm or danger nor contemplate such.

120. That concludes the decision of this Court.