Father's access order withdrawn after child protection report contraindicated resumption of contact.

Neutral Citation: [2015] IECC 5

THE CIRCUIT COURT

DUBLIN CIRCUIT

Record No.01459/2013

The Matter of LD, A Minor

Between

DE

Applicant

and

CD

Respondent

Judgment by His Honour Judge Keenan Johnson given on 18th March 2015

Background

1. These proceedings arise under the Guardianship of Infants Act 1964 as amended. DE is seeking numerous reliefs in respect of his

daughter, LD, who is also the daughter of CD, the respondent. Both DE and CD are professionals.

2. In the proceedings, DE has sought numerous reliefs in respect of LD. DE has claimed the following:

(a) An order pursuant to section 6A of the Act of 1964, granting him guardianship of LD.

(b) An order pursuant to section 11 of the Act of 1964, granting him access to LD.

(c) If necessary and appropriate, an order pursuant to section 11 of the Act of 1964, granting the applicant custody of

LD.

3. The evidence discloses that LD was born on the 13th of June 2006. It was a difficult pregnancy and CD had several admissions to

hospital because of extreme morning sickness. It appears that after LD’s birth, CD and LD lived in a rented apartment for about six

months. CD then purchased an apartment with the financial assistance of her parents and a mortgage. CD and LD continued to reside

in this apartment, which is located approximately half a mile from CD’s parents’ house. DE contributed towards LD’s maintenance by

paying €500 per month and also by paying her crèche fees and other ancillary expenses such as violin lessons and groceries. It is

accepted that DE and CD never lived together, but they agreed that they would do their best to rear LD.

4. DE enjoyed liberal access to LD and this became more frequent as LD got older. CD says she was happy to encourage LD to have a

good relationship with her father, DE. DE describes LD as “the apple of my eye and the love of my life”. He stated that he had access

to LD 3-4 times per week. He said he enjoyed bringing her to cultural events such as the theatre and museums. On Saturdays, CD

would bring LD after her violin lesson to meet DE. DE would generally have access to LD until he brought her back to the apartment at

around eight o’clock on a Saturday evening. During access, DE brought LD to a book and record shop run by his friend, DC. It appears

that CD expressed concerns about the safety of LD in the book shop as she felt it was an unregulated environment. DE states that

the reason CD had reservations about the book shop was because she felt that DC was not an appropriate person for LD to have

contact with. CD has denied ever saying that DC was an inappropriate person and is adamant that her concerns about LD being in the

book shop related to her view of the shop as an unregulated environment where LD might not be properly supervised. She said this

was particularly so as LD had told her that DE used to be engrossed in books while she was in the shop.

5. It is acknowledged by both parties that during access, DE brought LD regularly to the local gym and swimming pool. It appears that

these excursions took place around five o’clock in the evening and were usually the last activity undertaken before LD was returned

to her mother at the apartment. CD is a professional who travels for work and when she was away, LD would stay at her parents’

house. She said that she would not be away very much and estimates the nights away from home as varying between three and nine

per annum. It seems clear that LD was a regular visitor to the house of her grandparents, ND and KD, who are CD’s parents. LD had

very little interaction with her paternal grandfather, who lives with DE on the south side of the city.

6. When LD was approximately five years of age, she started in national school, and when school was finished, it appears that she

attended a local crèche. DE says that he never collected LD from the crèche but always collected her from the apartment, as this is

what CD wanted. CD states that DE never went to the crèche and that as far as she was concerned, there was no issue in relation

to this.

7. DE states that CD’s family was hostile towards him because of the fact that he had got CD pregnant outside of marriage and

because he hadn’t married CD. He says that KD and CD’s sister, SD, were particularly hostile towards him. He alleges that for some

months before LD made disclosures of sexual abuse by him, a number of matters occurred which in retrospect he deemed significant.

In particular, he alleges that LD advised him that KD had described him as odd and that KD had asked LD to report back to her on

what happened during access with DE. DE acknowledged that when he was told this by LD, he told LD that KD was mad. KD reports

that LD said that DE had described her as an idiot. Subsequent to this, CD spoke to DE about her discomfort at him making

disparaging remarks about her mother to their daughter. She said DE did not dispute that he had called her mother an idiot, but said

he had said this in response to the outrageous things KD had purportedly said about him to LD. CD said he never elaborated on what

outrageous things her mother had said about him. DE also reported that during access in the months prior to the disclosure, LD had

expressed concerns about the relationship between CD and a man called S. CD states that S was merely a friend, but DE seems to

believe that there was more to the relationship and that it was a source of anxiety to LD. DE also reports that LD said that her

grandmother, KD, had kissed S. KD has acknowledged that S was welcome in their house and has indicated that as far as she, her

husband, ND, and indeed the respondent, CD, were concerned S was a platonic friend of CD, whom she had met while studying at

college. DE has also said that CD’s sister, SD, was very hostile towards him and he references an occasion when SD complained to

him about LD’s lack of cleanliness after being returned from access with him. He also makes reference to an occasion when SD

accused DE of meanness because he bought a second-hand game and book for LD. He says that SD described him as an odd and

strange person. SD has denied having a hostile relationship with DE but acknowledges that on the Saturday of the weekend before

the disclosures were made, she and DE had an argument in the presence of LD, who brought the argument to an end by saying “shut

up Daddy – it’s not Mammy”. I think it is significant that a mere four days before the disclosure was made, LD had witnessed

antagonistic behaviour between DE and SD.

8. DE does not appear to have had any issues with CD’s brothers, DD and JD. He also appears to have enjoyed a reasonably good

relationship with CD’s father, ND, and it is acknowledged by both that they have mutual interests in literature and the arts. They also

exchanged Christmas gifts. It also appears that ND and DE had regular contact, both by phone and by text, relating to access

arrangements for LD. This was particularly important as neither CD nor DE drives and they were dependent on CD’s parents, who are

both drivers, to assist in facilitating DE’s access with LD. It appears that DE, LD and CD went to a holiday villa on Lake Como in Italy,

which was owned by a friend of DE. CD’s parents also spent time on this holiday as the villa was located in a relatively isolated area

and they were able to hire a car, thereby enabling CD, DE and LD to tour parts of the locality, thus improving the quality of the

holiday. DE says he was disappointed when KD expressed a preference for her native county of Donegal over the scenery at Lake

Como.

9. The parties acknowledge that because of the commitments of DE’s academic posts, he enjoyed greater access to LD during the

summer, when his college was closed for holidays.

Disclosure

10. It appears that everybody was happy with the access arrangements until Wednesday the 10th of July 2013, when LD made

disclosures to KD, which alleged that LD was being sexually abused by DE during access. It appears that on the 9th of July, CD went

to Donegal on business until the 12th of July. LD was staying with her maternal grandparents on the 10th of July. On that day, DE

took LD for access in the afternoon. It appears they went to Dollymount strand, and while there, DE states that LD went paddling and

also went to the toilet in the sand dunes. DE states that he left LD back to her maternal grandparents’ house. KD states that when

drying LD following a shower that evening, LD said to her “don’t hurt me Granny – I’m sore”, and pointed to her genital area. KD said

she examined LD’s genital area and noted that her vulva and rectal area were both red. She said LD wouldn’t allow her to apply cream

to the area, so she made up a gauzed dressing and applied it. She said she enquired of LD what had happened to her, and if she had

fallen and hurt herself. LD replied “no”. She said she then asked LD if any of the boys in after-school touched her there, and LD

replied “no”. She said that she then asked “did anyone hurt or touch you there?” and LD again replied no. She then said to LD that it

was important to tell her or her mother if anyone had touched her genital area. After this, she said she gave LD Calpol for pain and a

hot chocolate drink. She said her primary concern was to look after LD because she was a child. She said that about 15-20 minutes

later, while she was tidying, LD said in a totally unprompted way and out of the blue, “Daddy did it”. She then said the following

conversation took place:

KD: “What?”

LD: “Daddy did it.”

KD: “Where?”

LD: “Dollymount strand”

KD: “How could he do it with all those people around?”

LD: “He did it in [the gym] and [the park].”

KD: “Are you telling the truth?”

LD: “I always tell the truth. He does it when people go away.”

The conversation then proceeds with a request from LD that KD should not tell her father what LD had said. KD tells her that her

mother has to be told, and LD tells her that she will tell her mother. It appears that LD then proceeds to tell KD that she is abused

every time she goes out with her father, except on her birthday. She then tells her grandmother not to let her father come the

following day.

11. On receipt of the disclosure, KD advises her husband, ND, and the following day, LD says in the presence of both grandparents,

“Don’t let Daddy come because he’ll hurt me”, and when asked where, points to her genital area.

12. Following this, ND telephoned DE and asked him not to come over. KD rang CD and told her that a delicate situation had arisen in

relation to LD and that she would discuss it with her on her return on Friday. KD says that her priority was the protection of LD and

that while she was shocked by the disclosures, she wanted to minimise all stress for LD. She said that as she was a trained public

health nurse and midwife, she felt capable of dealing with the physical condition of LD without the necessity of bringing her to

hospital or to a doctor. In hindsight, this was unfortunate as the court does not have the benefit of a medical examination having

taken place immediately following on the disclosure. Such an examination would have provided the court with expert opinion on the

significance or otherwise of the redness in the genital area. KD also states that on the following day, the 11th of July, LD said to her

that she didn’t disclose the abuse earlier because DE had threatened to kill KD if she disclosed the abuse. KD said that she assured LD

that DE would not kill her and that LD responded, “He will”.

13. On Friday the 12th of July, CD returned from Donegal and KD advised her of the situation and the allegations of sexual abuse that

had been made against DE by LD. CD said that she went to LD’s room with a present and that in the course of conversation, LD

asked, “did Granny tell you what I told her?”, to which CD replied “no”. LD then said, “I’ll never tell you – not in 90 years”. CD says

that she was concerned for LD as she appeared pale and on edge and accordingly she didn’t press her any further in relation to the

matter.

14. CD said that on Friday the 12th of July, her brother, who was a clinical psychologist, was visiting, and he advised her to handle

the situation delicately and to allow LD to make the revelations at her own pace. CD states that she always wanted LD to be truthful

and that she believes that she is a truthful girl.

15. On the following day, which was Saturday the 13th of July, while washing LD’s hair, CD tried to reassure her and told her that she

loved her and that LD was free to tell her mummy all her worries. She then recounted that LD said she wasn’t going to tell her about

what she told Granny about Daddy. With that, CD asked LD “where did this thing happen with Daddy?” LD revealed that it happened

everywhere, including Dollymount strand, the park and the gym. CD, thinking that there might be an innocent explanation for the

allegations, suggested to LD that possibly Dad’s behaviour was “OK”. She stated that LD responded by saying, “no, no, no, it’s not

OK. He never does it when you, Uncle J or Auntie S are around.” She then went on to allege that she was abused when she was

alone in the mother’s apartment with her father and that when CD returned, DE would pretend to be tickling her tummy. CD then

states that she showed a doll to LD and asked her to indicate where it happened. She said that LD pointed to the area between the

doll’s legs. She said LD said it hurt her and that DE would call her “cry baby, cry baby”. She described the abuse as scratchy and said

that DE thinks his nails aren’t long, but that they are, and that they hurt her. CD states that she told LD that DE shouldn’t have done

those things and that she was very sad about it. LD then proceeded to recount that some weeks previously, she had been admitted

to the A&E at Temple Street hospital, following a fall in which she had cut her chin. CD was aware of this incident and recalled that

DE had brought LD outside to play football and that when they came in shortly afterwards, LD was bleeding from her chin. CD states

that her father, ND, took her, DE and LD to Temple Street for treatment. LD recounted that on the evening of the incident, DE had

got her to sit on the last step of the stairs in the common area of the apartment block and had told her to “assume position”. LD

states that she ran out to get away from this, as it would involve abuse, and that when she ran out, she fell off a wall as she was

trying to get away from DE and hurt her chin. LD also recounted that on the 17th of July, when CD brought her to Dollymount strand,

DE did “the thingy” to her there, and pointed to her genitalia, and that he told her that if she told anyone, it would get ten times

worse. LD also revealed that DE had told her that he would kill Granny or CD if LD told about the abuse. CD reassured her that LD

would never have to be alone with her father again, but LD requested that CD would never leave LD alone with DE, not even for a

moment or when CD was going to the toilet. CD says she told LD that she didn’t have to see DE at all and that LD said she wanted to

see him in a few weeks when he was not doing the bold things that hurt her.

Action Taken Subsequent to Disclosure

16. CD said that she was very upset by the allegations as she liked DE and felt that they always did their best to raise LD in the best

way possible. She said she was familiar with the need to always show a child who makes an allegation of abuse that you believe

them. She said she fully believed LD’s revelations as LD was always a very truthful and good-natured child. She described the

revelations of abuse by LD as the worst moment of her life. She says that on the Saturday, LD was due to go with DE for violin

lessons. She said she rang DE and told him that CD didn’t feel well and that her sister, SD, had LD for the weekend. She said she did

this as she wanted to explore the matter more fully and to be fair to DE.

17. She stated that on the Sunday night, when LD was getting ready for bed, she asked her if she felt better and she replied “yes”,

but she was afraid that CD might tell DE about the allegations. CD states that she promised LD that she wouldn’t tell DE and she

praised LD for confiding in her. She says that LD then asked her, “do you know about the positions?” CD indicated that she had no

idea what LD was talking about. LD then proceeded to say that DE showed her different positions. She then demonstrated by sitting

on her bed and opening her legs, and said that this was one of the positions. She said that when she was in playschool, it was hard

to do that position because she couldn’t open her legs too wide as they were small. She then showed another position where she

knelt down with her hands on the ground. She then proceeded to tell LD that DE hurt her in the genital area by scratching her with a

“thingy” from his pocket. She was then asked if this activity took place with her pants on or off. She said it happened with the pants

off and was quite upset. CD states that LD then started to make a deluge of different revelations.

18. LD said the abuse would happen nearly every time she was with DE. She said it happened in Dollymount strand, the gym play

area, the park, at the back of the crèche grounds, the ice cream shop, at concerts such as Cinderella and the ballet. She asked CD

did she not think it was strange that LD didn’t sit with her when they were at Cinderella. She also asked CD to remember the times

she sat astride the cupboard door in their apartment, and she said that DE had told her to do this. She also asked CD did she

remember the time that CD had given out to her for having her legs sitting high in the air while they were in her apartment. CD said

she remembered telling LD that that wasn’t a proper way to sit. LD revealed to her that DE had told her to sit in that way. CD stated

that she challenged LD that people would see the abuse as it was taking place in public. LD indicated that the abuse took place when

people had passed by. LD indicated that the abuse involved DE’s hand or a “thingy”, which was pointy and scratchy, and which he

took from his pocket.

19. CD states that following these revelations, she knew she would have to take action to protect LD. She took advice from her

brother, the psychologist, and on the following day, she went to her solicitors, who were specialists in child law. She was advised to

notify the HSE and the gardaí. She said that she went to the local gardaí that afternoon to report the matter. She said she didn’t

want to do this as she still liked DE. Subsequent to this, LD was brought for an appointment to Temple Street hospital. They were

accompanied by the gardaí, who were in civilian dress. CD said she wanted to protect LD because she knew LD was upset and fearful

of the consequences of having told about the abuse. She said she never saw LD feel like that before. At Temple Street hospital, Dr

Ikie carried out an examination of LD, which significantly found no elements of abuse. Following the examination, the gardaí explained

to LD the protocol, which involved taking statements from her, her parents and also interviewing LD.

20. CD said it tortured her to believe what LD had said. However, she felt the specificity of LD’s account meant that she “couldn’t not

believe her”. She said she felt torn between DE and LD but was duty-bound to protect LD.

21. CD says that if DE admitted the abuse, expressed his remorse and went for counselling, she would work towards restoring some

form of access for DE with LD. She says that in the absence of this, DE should have no access with LD. She says that with the

greatest sadness, she believes that LD has given her a true account of what happened.

22. She says that since the disclosures, LD’s anxiety has increased and she is fearful for the well-being of her grandmother, KD. She

says that LD is also fearful of going to the south side of the city in case she meets DE. She says that since the disclosures, she and

LD are living with her parents as returning to the apartment which they occupied prior to the disclosures being made is a source of

too much anxiety for LD.

Garda Interviews

23. On the 13th of July 2013, LD was interviewed by the gardaí. The court has had the benefit of viewing the DVD of this interview.

The interview started with a very leading question from the interviewing garda, who said, “you said your daddy hurt you down there”.

LD then goes on to say that DE had a “thingy” in a pocket and that he used it to hurt her “there” and points to her genital area. LD

said that DE had a pocket with the “thingy” in it, close to his genital area. LD says she didn’t know what the “thingy” looked like and

initially refers to it as a silver thing which is square-ish in shape with lines all over it. LD then proceeds to draw the “thingy” and adds

spikes to it. LD states that the “thingy” was used to hurt her in the genital area. She said it wasn’t stingy but it was “hurty”. She

demonstrated that the “thingy” was rubbed on her genital area. She indicated that the “thingy” scraped her genital area. She

indicated that she was abused with the “thingy” all the time and she gave a detailed description of what she was wearing the first

time the abuse started, including the fact that she was wearing sunglasses and a bracelet. She indicated that the first time it

occurred, she had her pants on and that the thingy was put in one side of the pants and then used to scrape her genital area. She

said the area got very red.

24. She indicated that the abuse lasted for periods of approximately five minutes and that she was four years old when the abuse

started. She then proceeds to relate that the abuse occurred in the children’s pool of the gym. She says there were people there,

but they wouldn’t see the abuse as they weren’t diving into the pool. She said that she was abused with the “thingy” in the small

pool and that her father had gloves on when the abuse occurred. She said her father had these gloves on so that he wouldn’t hurt

himself with the “thingy”. She appears to indicate that the abuse happened in the pool on a number of occasions and that sometimes

there were people there, but usually there was nobody there.

25. She says that her father told her that if she told anybody, he’d kill her granny. When asked if she said anything to her father

about the abuse when he was hurting her, she said no, that she just cried, and he called her “cry baby, cry baby”.

26. She then goes on to relate that when they were at the Cinderella pantomime, her mother and father were sitting separately and

that her father made a face to her, which meant that she had to go over to him. She also demonstrated with her fingers a gesture,

which she understood meant that she was to go to him and take up “position”. She explained that the positions were required when

DE put his hand up and she would have to sit on his hand with the “thingy” in his hand. She said the face he made indicated that he

wanted her to go over and do positions with him. She said her father told her what the different signals meant. She went on to

explain that there was another position which involved opening her legs wide. She also described another position where she put her

feet on her dad’s lap and then he used the “thingy” to scrape her genital area. She drew another “thingy”, which she said was also

used to abuse her. She described each “thingy” as being kind of cylindrical in shape. She says her dad keeps the “thingys” in a pocket

in his jeans and that he always wears the same jeans. She points to the “thingys” being kept in a pocket of her dad’s trousers near

the genital area. She then proceeds to add to the drawings by putting a circle. She then says that she thinks her dad sowed on the

pocket in which the “thingys” are kept.

27. She then describes how at the Cinderella pantomime she laid on the ground, put her feet on her dad’s lap, and she could see the

lights and the seat. This matter does not appear to be followed through by the garda who was questioning her until later in the

interview and the interview then moves on to LD indicating that she was abused at the pantomime while sitting on her father’s hand

when using the “thingy” to hurt her. She said she cried and her father said “cry baby, cry baby, cry baby”, and that her father told

her not to cry when she went back to her mother. When asked if it happened the one time at Cinderella, she said that it happened all

the time, and then proceeded to clarify that he did it twice and then ultimately settling for three times (in respect of the alleged

abuse at the Cinderella pantomime). She said that she went back to her mother between each episode of abuse and that she never

told her mother of the abuse because of her father’s threat to kill her grandmother or do something ten times worse. She said that on

this occasion he had threatened to kill Granny. She said there was nobody sitting in front of, or behind, her dad, and that they were

seated about five rows from the stage and that her mother was seated about ten rows behind her father. When asked what

happened while she was sitting on the ground with her legs on her father’s lap, LD replies “he did it. He did that one in Scrooge” and

points to a picture of a “thingy”, and “he did that one at Cinderella”, and points to another picture of a “thingy”. LD then confirmed

that she had been abused both at Cinderella and at Scrooge.

28. She then went on to relay that the abuse happened most times she met her dad and that she met her dad nearly every day. She

then proceeded to relay an incident of abuse at the park, which involved a “thingy”. She said that every time she was abused, she

always cried and that her dad would say “cry baby, cry baby, cry baby”. She said her dad never said anything else – just “cry baby”,

or that if she told anyone, things would get ten times worse or he would kill granny. Later in the interview, LD indicated that

whenever the abuse occurred, her father would take off her underwear.

29. She also went on to say that her father told her what the signals meant and what the positions were. She said there were four

positions: the first was standing with her legs in the air, the second was sitting on her father’s hand, the third was with her father

sitting at a height, and the fourth involved her jumping on her father with her legs wide open. LD said there was “this thing where he

(DE) would say, ‘what a lovely tie’, so mammy would be focusing on his tie and he would be doing the thingy miggiddy”. This would

appear to imply that DE was abusing LD in the presence of her mother. I am absolutely satisfied that this never happened as it is

clear that CD would never continence such activity. LD then drew another “thingy” so that eventually she had drawn three pictures

of “thingys”. She described the “thingys” scraping her private area and causing redness. When asked about the last occasion she was

abused by her father, she said she thought she didn’t tell her granny about it until a few days later. She went on to say that she felt

sad about her dad hurting her.

30. LD was re-interviewed by the gardaí on the 10th of November 2013. Following introductions, the interviewer checked to see if LD

could tell the difference between truth and lies. At page 12 of the transcript of interview, LD recounts that DE had abused her five or

six times while they were in Kilkenny. She then proceeded to give an accurate description of DE. She was then asked about Kilkenny

and recounted that she went by train with her dad to Kilkenny, where they went to a restaurant where there was “a kind of outside

part in it”. She said they also met her dad’s friend and they went to a hotel where he worked. She confirmed that the friend was not

from Ireland and that he was showing them around Kilkenny. She says she thinks she was six or seven at the time she went to

Kilkenny. She said that her dad and his friend and herself walked around Kilkenny and that she had a swim in the hotel that the friend

worked in. She said she wasn’t abused in the hotel but was abused in the restaurant. She described the restaurant as having an

outside part that was kind of like a shelter. She couldn’t remember the name of the restaurant and she said she thought there were

two people in it. She then proceeded to describe the “thingys” as being sharp with bits of it triangular in shape. She said it was a

silver colour. She said her dad kept it sometimes in a bag, sometimes in his coat pocket or sometimes in his jeans pocket. She said

there were three thingys of different sizes. She said the biggest one was “triangle-ish” in shape. She said that on the day in the

restaurant, she thinks her dad had the “thingy” in his coat pocket. She said her dad used the “thingy” on her when she was sitting on

his knees in the restaurant. She then proceeded to demonstrate how her dad would give her signals when he wanted her to do the

“thingy”. She said that the “thingy” happened three times in the restaurant. She said that while the abuse occurred in the restaurant,

she thinks her dad took down her tights and she also thinks he pulled down her tights a bit. She said that after the abuse, her “bum”

was the same. In a previous interview, she had indicated that her “bum” was red after the abuse. It is not clear from the interview if

the five or six allegations of abuse in Kilkenny all happened in the restaurant. Further on in the interview, LD indicates that she was

abused in the toilet of an ice cream shop in the city centre and also in the toilet of a book / CD shop, owned by DE’s friend, DC. She

indicated that she was abused on most occasions that she went to the city centre with her dad. She also said that if he forgot the

“thingy”, he would abuse her with his hand. She said that he would use his finger. She said she could remember three occasions when

he used his finger: one in the gym, one in CP (a restaurant close to CD’s apartment) and the other in the park. She said her dad

would tell her that he forgot to bring the “thingy” and that he was going to use his finger instead. She said the finger wasn’t as bad

as the “thingy”. She said that sometimes he might have used two fingers, but usually only one. She said that some of the abuse took

place in the food area and play area of the gym. She said that the abuse happened most of the times they went to the gym. She said

he also abused her in the park with the “thingy” but that once or twice he used his finger. She said she was abused in the girls’ toilet

of CP (a restaurant close to CD’s apartment).

St. Claire’s Assessment

31. LD was assessed by the child sexual abuse assessment team at Temple Street Children’s Hospital for an opinion on the probability

of the occurrence of child sexual abuse. The sources of information used to undertake this assessment involved, inter alia, review of

the two garda interviews and interviews with CD, DE and KD. The team also undertook five interviews with LD and had feedback

sessions with CD and DE. The St. Claire’s team concluded that LD had provided a credible account of being sexually abused by DE.

The team reached its conclusions on the basis of the information summarised on pages 27-29 of its report, which is dated the 19th of

May 2014. I have set out hereunder that information as I feel it is important to analyse this in the context of what weight the court

should attach to the conclusions in the report when determining, on the balance of probabilities, whether the allegations of child

sexual abuse are true or not.

32. The sources of information identified by St. Claire’s are as follows:

• LD consistently spoke of and demonstrated being hurt on her vagina, by her father DE, on a number of occasions during

access visits.

• The accounts LD provided were composite, referring to different incidents within the one account.

• LD provided core, contextual and peripheral detail surrounding her experiences of being hurt on her vagina by DE. She

used figurines and anatomically correct dolls to demonstrate how he pulled down her tights and underwear and hurt her

on the vagina. She referred to DE telling her to straddle a cupboard door in her home in order to hurt herself in her genital

area. She used figurines to demonstrate how she did this.

• LD described DE hurting her vagina with metal objects which she referred to as “thingys”. She was unable to identify

what these objects were but provided a clear description of them as sharp, pointy and greyish in colour. She said DE also

hurt her vagina using his finger, and described this as less sore than when he used the objects.

• LD was consistent in her description of the abuse to her mother, her grandmother, in the garda interview and the St.

Claire’s interview.

• LD has maintained her account of abuse since her disclosure despite the length of time that has passed and the number

of interviews that have occurred.

• LD was unable to be specific about the number of times these incidents took place.

• LD provided sensory detail, describing the difference in her father using the “thingy” and his finger. She also spoke of

her father making two different signs which she knew to be the signal for her to come to him and he would then hurt her.

• Given LD’s age, the assessment team were unsure whether LD was aware that she could be hurt inside her body as she

questioned how this could happen.

• LD showed a fear of DE whilst attending St. Claire’s Unit, requiring reassurance that her father would not enter the

building when she was there.

• LD expressed anger at herself for not disclosing sooner, and referred to the threat of her grandmother being killed which

had stopped her from telling.

• The possibility of LD being exposed to inappropriate sexual behaviour or material at home was considered and deemed

unlikely given the level of supervision she had in the family home and at her grandparents’ house.

• LD’s suggestibility was tested throughout the assessment process and the assessment team were confident that she

was not suggestible to enhancing or adding to her disclosures.

• The minor inconsistencies in LD’s accounts was considered and could be explained given the frequency of incidents, her

memory given her developmental age and the period of time that has passed.

33. It is clear that the St. Claire’s assessment was prepared from LD’s perspective. In cross-examination, SF, the senior social worker

who undertook the interviews with LD for the assessment at St. Claire’s, acknowledged that she did not comply with best practice

when she advised LD at the initial interview that she was aware of the disclosures LD had made in the garda interviews. Mr Fitzgerald

on behalf of DE argued that this was a fatal error and coloured the responses LD gave in the first and all subsequent interviews. SF

acknowledged that the unit had never dealt with allegations of the type made by LD, which involved abuse using metal objects in a

public place.

34. I have viewed all five interviews which were undertaken by St. Claire’s and it seems to me that the level of affirmation which LD

received when she made a disclosure had the unintended effect of encouraging her to make further disclosures. The basis of the

conclusions reached by St. Claire’s are all predicated on the basis that LD is telling the truth. It is my view that there was no serious

attempt to undertake reality-checking in respect of the allegations made by LD. I appreciate that the conventional wisdom applied in

interviewing children nowadays is based on the premise that children are assumed to be telling the truth. The basis for this approach

arises from the disclosure by adults who were abused as children that the sense of loss and hurt felt by them as a consequence of

the abuse was compounded by the failure of adults to believe them when they made disclosures as children. While taking on board

these considerations, I can’t help but feel that both in the garda interviews and the St. Claire interviews, the pendulum has swung

too far in favour of not seriously questioning the veracity of the disclosures made by LD. It is my view that subtle techniques could

have been used to check LD’s version of events. This could have involved checking out more carefully the allegations surrounding the

theatre incident and the locus of the other areas where abuse is alleged to have taken place. It would appear that no independent

checks were carried out by the gardaí in respect of these matters and that despite this, the gardaí proceeded to recommend that DE

be prosecuted. The DPP quite rightly decided that there should be no prosecution and I am satisfied on the basis of the evidence put

before this court that any criminal prosecution of DE would fail to prove the allegations beyond reasonable doubt.

35. I don’t want my comments in relation to the interviewing of LD to be taken as a criticism by me of LD. I am absolutely satisfied

that LD is a good-natured, happy young girl who believes that the abuse occurred. I believe the fact that LD has been subject to a

total of eight interviews and has not had access to her father for over 19 months has resulted in LD accepting the abuse as part of

her reality. At this juncture I think it is also appropriate to mention that I do not doubt for one moment the bona fides of CD in

relation to this matter. It is clear that when the disclosures were made, she was caught between “a rock and a hard place”. Her

evidence in relation to the trauma which the disclosure caused her was sincere and genuine. She did not want to believe the

allegations but because of their specificity, she believed them to be true. Once she had satisfied herself that the allegations were

true, she naturally felt obliged to protect LD from having any further contact with DE. I do not criticise CD for her actions and accept

that these were undertaken in what she believed to be the best interests of LD.

36. I think it is very difficult for St. Claire’s to give an opinion as to the credibility of LD’s allegations when they don’t have, as the

court has, full access to all of the evidence that has been presented to the court. I am a little concerned that in undertaking their

investigations, St. Claire’s reached their conclusions before they got the feedback from DE. Indeed, in fairness to SF in her evidence,

she acknowledged that the protocol for the assessments might need to be reviewed so that feedback from the parents is

incorporated into the conclusions, rather than as is currently the case, the conclusions being presented to the parents as a fait

accompli at the feedback session. I am further perturbed by the fact that St. Claire’s ignored DE’s plea to review the reports of the

experts he had retained before finalising their conclusions. In light of this, I am satisfied that the conclusions reached by St. Claire’s

are merely an opinion that LD’s allegations are credible but they are not a determination that the allegations are true. I am also

concerned that the hypothesis at the top of page 28 on St. Claire’s report, which puts forward the theory that LD was asked by DE

to straddle a cupboard door in order to divert responsibility from DE if the abuse was discovered, marks such a jump to conclusion on

the part of St. Claire’s as to constitute bias against DE in the preparation of St. Claire’s report.

37. In fairness to St. Claire’s, I do accept their conclusions that LD was not coached and that the allegations were not made

maliciously.

38. In the course of giving her evidence, SF acknowledged that the approach adopted by the Irish authorities in investigating

allegations of child sexual abuse left a lot to be desired. I had expressed concerns about the multiplicity of interviews that LD had to

undergo and the fact that each interview was a source of stress to LD. SF agreed that the multiplicity of interviews was highly

undesirable. It appears that in other jurisdictions, multidisciplinary teams consisting of social workers, suitably-trained police officers

and child psychiatrists undertake one, or at most two, comprehensive interviews with the child making the allegations. Such an

approach gives a much clearer picture and reduces considerably the stress which a child suffers from undergoing such an interview.

Furthermore, such an approach reduces greatly the possibility of inaccuracies arising in the child’s version of events as the interview

takes place as soon as is practicable after the making of the disclosure.

39. At this stage, I would also like to comment on the inordinate delay between the disclosure and the making of the determination on

access. The management of cases of this nature needs a radical overhaul to ensure that allegations of sexual abuse are dealt with as

expeditiously as possible. “Time is of the essence” in respect of these matters, as any delay only compounds the damage to the

parent/child relationship, particularly when the allegations of abuse are not upheld. There should be a fast-track protocol to deal with

cases of this nature.

Professor Madden

40. Professor Madden, who was called on behalf of DE and who is a forensic psychiatrist in London and who has vast experience,

indicated in evidence that in his experience it was highly unlikely that the abuse alleged by LD would, as she alleged, have taken

place in areas to which the public had access. Professor Madden, although acknowledging that he was not a child psychiatrist, opined

that the abuse as alleged was of a sadistic nature and that if such abuse was taking place over a protracted period of time, he would

have expected its effects to have manifested themselves in LD’s behaviour. It is common case that LD was a happy child until the

disclosures were made on the 10th of July 2013 to KD.

Redness

41. All parties agree that redness was visible on occasions prior to the disclosure. ND said that in June 2013, LD was unable to sit in

the car and he indicated that he thought this may be due to redness in her genital area. When CD was asked about this, she

conceded that the inability to sit down could have been due to constipation. There was no evidence produced to the court that LD

had been examined for redness in the genital area after she had complained of being unable to sit in ND’s car. I am satisfied that

nothing of evidential value arises from LD’s inability to sit in ND’s car in June 2013.

42. The only redness that raised alarm was that seen by KD on the 10th of July. Nobody else appears to have seen this redness,

although CD says there was a slight display of it on the Friday evening. KD has described this redness as red and sore, and in her

interview with St. Claire’s as red raw. KD states that in her capacity as a public health nurse, she treated the redness with a gauze

bandage. KD states that she did not bring LD to have the redness examined after she made the disclosure on the 10th of July as she

thought this would be too traumatic for LD. When giving evidence, ND said that on two occasions prior to the 10th of July, KD

remarked that the redness might indicate abuse. ND said that KD told CD about this. CD says that KD never told her this and KD has

no recollection of ever saying anything to ND about suspecting abuse. I am advised that LD has displayed redness in her genital area

on a number of occasions since the disclosures were made and since access to DE stopped. I am satisfied on the basis of the

evidence that there is nothing sinister about the redness which was displayed in LD’s genital area, either prior to or subsequent to the

disclosure of sexual abuse. Accordingly I am of the view that the evidence in respect of the redness is of no material value and

accordingly is not going to inform my decision on this matter.

43. It is also worth noting that a medical examination of LD on Monday 15th of July revealed no evidence of abuse. Had the redness

been as described by KD in her interview with St Claire’s, “raw”, on the previous Wednesday when the disclosure was made, I would

have expected traces of such redness to be visible at the medical examination on the following Monday. The evidence from the

medical examination indicates nothing untoward was found.

Sexual Awareness

44. DE has argued that the allegations by LD arise from CD being preoccupied by the issue of sexual abuse. CD, in one of her

statements, says that she drilled the Stay Safe programme into LD when she was starting school. At this time, LD was four years of

age. When advising LD of the Stay Safe programme, CD confirms that she asked LD if anybody had touched her in her genital area. DE

has argued that this approach taken by CD indicates an unhealthy preoccupation on CD’s part about the issue of child sexual abuse.

While the questioning as to whether LD had been touched at the time she was starting school seems unusual, I am satisfied on the

basis of all of the evidence given by CD that she did have fears about child sexual abuse and that she may have unwittingly imparted

her fears or concerns about child sexual abuse to LD.

Dr Anne Byrne-Lynch

45. Dr Byrne-Lynch was instructed by CD’s solicitors to prepare a report for the court on the issue of access. Dr Byrne-Lynch

indicated that at the time she received instructions, she had understood that both parents had agreed that she would act in the

matter and that both had agreed to co-operate with her. Dr Byrne-Lynch acknowledged that she became aware of DE’s unwillingness

to co-operate with her when he refused to be interviewed by her. Dr Byrne-Lynch said that in order to give recommendations on the

issue of access, she had to review all the evidence and make a determination on the veracity of the allegations. She said that her

review of the evidence satisfied her that the allegations were credible and true. It is important to note that Dr Byrne-Lynch’s primary

concern in preparing the report was to make recommendations in respect of access, having first accepted that the allegations of

abuse were true. Dr Byrne-Lynch accepted that had her brief been to determine the veracity or otherwise of the allegations, her

investigation would have been considerably more detailed. Dr Byrne-Lynch interviewed LD. She said she undertook this interview on

the basis of wanting to know where LD was now, as opposed to looking back. She also wanted to find out what LD wanted in the

future. She acknowledged that in the interview, LD had given an inconsistent version of the abuse in Kilkenny. She felt that the

inconsistencies relayed by LD were in terms of detail but that LD was overall consistent in the nature of the allegations that she made

against DE.

46. Dr Byrne-Lynch again reiterated that the purpose of her assessment was not to re-examine the conclusions of St. Claire’s, but to

make recommendations on access.

47. In commenting on the abuse, Dr Byrne-Lynch acknowledged that she struggled to find a reason or purpose for the abuse as

described by LD. She accepted that the abuse did not give DE sexual gratification, but surmised that the abuse formed a pattern of

grooming that would lead to more serious abuse. She took issue with Professor Madden’s categorisation of the abuse as sadistic, but

accepted that it is extremely unusual for sadistic abuse to take place, as had been alleged by LD, in a public place.

48. Dr Byrne-Lynch also placed great emphasis on LD’s school reports and reference to her inability to focus at times. She took this

as being indicative of LD manifesting signs of abuse. It is my view that the school reports taken as a whole do not indicate any

manifestation of abuse or of anything out of the ordinary going on with LD. Having made the finding that abuse occurred, Dr Byrne-

Lynch has recommended no access between LD and DE. Dr Byrne-Lynch has concluded that in her professional opinion, it is not

possible to ensure that access could be rendered safe, even with close supervision.

49. In my view, Dr Byrne-Lynch’s evidence is of limited assistance given that she did not interview DE and furthermore given that she

did not carry out the detailed investigations that are necessary to determine her opinion on the veracity of the allegations. In

essence, what Dr Byrne-Lynch produced was a s. 47 report which was prepared on the basis that abuse had occurred. In this

instance, such a report was premature, given that the court had made no determination as to the veracity of the allegations of

abuse.

Evidence of DE

50. At the hearing, the numerous allegations made by LD against DE were put to him. He had been accused of abuse on Dollymount

strand and at the gym. He acknowledged bringing LD to the gym for swimming, but said that he would always put LD outside the

cubicle when he was putting on his swimming togs. He said that when she was young, he would put her into the separate children’s

pool in the complex, but that as she got older, he would hold her in the bigger pool, which was deeper. He said they generally went to

the pool in late afternoon, around 5pm. He said he would try to visit the pool and gym when he and LD were coming back from the

city centre. He said he took LD to the climbing wall in the gym and also the play area. He said he would supervise her from the

outside when she was in the play area. When she was younger, LD would go to the toddler area and he would supervise her in that

area as adults were allowed access to it. He said he took LD on occasions to a book and record shop, which was run by his good

friend, DC. He said he introduced LD to DC and encouraged her to read books appropriate to her age.

51. DC gave evidence of seeing nothing but a warm, loving relationship between DE and LD whenever they visited his shop. DC

became passionate and emotional when giving evidence and felt the allegations constituted a great wrong against DE. DC also said

that as far as he was concerned, CD treated DE like a “puppet on a string” when it came to the issue of access. I can appreciate

that DC, for genuine and honestly-held reasons, wanted to give evidence that would be of assistance to DE in denying the allegations

of abuse that have been levelled against him. However, I am not convinced that the evidence supports his contention that DE was

treated like a “puppet on a string” by CD on the issue of access. The evidence clearly indicates that CD facilitated DE with access, as

did her parents and her sister, SD.

52. DE said that the respondent was not happy with him introducing LD to his friends. He said that during access he brought LD to

many theatres, mostly to the Grand Canal Theatre, where they saw The Lion King and some ballet, and also to Christmas pantomimes

at the Gaiety and the Olympia. He said that he had brought LD to Cinderella at the Gaiety on the 17th of December 2012. He said

that he had met LD and CD in town, and he asked CD if she would like to go to the pantomime. CD agreed and he bought an additional

ticket for her. They were unable to get seats together, so LD and DE sat together, with CD occupying a seat a few rows from them.

53. DE said that on another occasion, he brought LD on a trip to Kilkenny, where he met a former student in a hotel for coffee. He

said that LD and he went swimming at a hotel in Kilkenny as his friend got them in free to the hotel. He said that he bought a

swimsuit for LD so that she could use the pool in Kilkenny. He said they went to Kilkenny by train, and while there they visited all the

sights, including the cathedral and Rothe House.

54. It was then put to DE that LD alleged he abused her on Dollymount strand, in the gym, in the toilet of DC’s shop and in the

theatre. It was also put to him that he was alleged to have used metal instruments to stroke LD’s private parts. DE responded that

the allegations were nonsense and never happened. He proffered the view that the allegations came from CD’s mother’s hostility

towards him. He reiterated that he always thought that he and CD got on well together. He said that CD exercised a huge control

over what he did with LD. He said CD did not want LD being around strange men and that she also had concerns about LD’s energy

levels. He said that he and LD went on occasions to the park and that on one occasion, LD complained to him that older children were

being unkind to her in the new playground in the park. He said they did not go back there again. He said that occasionally, CD would

go out on a Friday evening and that he would baby-sit LD in the apartment. He again confirmed that he had always sensed hostility

from CD’s mother and her sister, SD. He said that CD’s father, ND, would ring him occasionally and ask him to come out and see LD.

55. He said that on the last occasion he saw LD, he took her to Dollymount strand. He said she paddled while there and also went to

the toilet in the bushes. He said that after the visit he took her back to CD’s parents. He said that he and LD had got on fine and that

the only time he and LD had a row was when he was being overly expressive. LD did not like being corralled for her own protection. He

said that LD never displayed any reluctance about being with him and that she often got ND to ring him. He said these phone calls

were more regular in the summer as he had more time off.

56. He said that the day after the last visit on the 10th of July 2013, ND rang him to say that his wife was unwell and not to come

out that day. He said that on the following Saturday, he went to pay LD’s violin fees and thought that he would see her. He said he

got a text to say that LD had gone with SD for the weekend. He said that subsequent to this, he was in Brighton giving a paper and

that he rang ND, requesting to talk to LD. He said after being told that LD could not talk to him, he became concerned. He then wrote

a polite letter, enquiring as to what was going on. He said that the next letter he sent was indicating that he was going to apply for

access. He said that shortly after this, the gardaí spoke to him about the alleged abuse. He said that all he wanted to do was rebuild

the relationship he had with his daughter. He again stated that LD had concerns about S and that he had sent a text about this to

CD’s father, ND.

57. In cross-examination, it was put to DE that he had refused an opportunity to meet with Anne Byrne-Lynch, who was carrying out

an assessment. He said that he had already undergone two assessments; one by Dr Carey and one by Professor Madden, and that as

he was willing to share these reports, he did not think another report was necessary. Allied to this, he stated that he believed that

the notice given for the report by Dr Byrne-Lynch was too short. He said he was advised by his legal team not to attend the

assessment by Dr Byrne-Lynch as she was an expert appointed by the other side. He said he gave as full an account as he could to

Professor Madden and that he felt that what he had given Professor Madden was a balanced account.

58. He said that after CD became pregnant, her father met him and suggested that he pay €2,500 per month towards LD’s upkeep

and that he should have nothing to do with LD. He said he wanted to be a part of his daughter’s life. He acknowledged that the claim

made in Paragraph 5 of his affidavit of the 21st of October 2013 was incorrect when it stated that ND, the respondent’s father,

suggested by letter to him that he had no role in LD’s life. However, he said that on four occasions after the letter was sent, he was

asked verbally to take no role in LD’s life. This was denied by ND.

59. There was reference made to text messages between DE and ND. Having perused these messages, I am satisfied that they

indicate an amicable relationship between DE and ND and that furthermore they show that ND and by extension KD facilitated DE with

access to LD.

60. It was put to DE that since the allegations were made, he had made no enquiry about LD’s well-being. He said that in his

interview with the gardaí he expressed his deep love and concern for LD and that he told the gardaí that LD would be better off in his

custody.

61. He said he was deeply concerned with LD’s upbringing and felt that SD and KD had endeavoured to blacken him in the eyes of LD.

He said that there had been a build-up of negative sentiment towards him in the months preceding the disclosure of the allegations.

He referred to LD telling him that KD had told her to report back to KD on their access visits. He further referred to KD and SD

speaking disparagingly about him to LD. He said that KD didn’t want him to be part of LD’s life. KD and SD have denied speaking

disparagingly about DE to LD. I am satisfied, having listened and observed the demeanour of DE, KD and SD when giving their

evidence, that there was no concerted or conscious effort by SD or KD to diminish or denigrate DE in the eyes of LD. However, I am

also satisfied that there is not a strong or warm relationship between DE, SD and KD. I am satisfied that the absence of this warm

relationship is probably primarily due to the strident characteristics of DE. It is my belief that LD has picked up the negativity that

exists between DE and KD and SD. I believe that this has fed into LD’s view of her father and has reaffirmed her belief that the

allegations of abuse which she has made against her father are in fact true. The abuse has now become LD’s reality. It also appeared

to me that part of LD’s negative attitude towards DE arises from DE’s lack of empathy with LD. I was struck by DE’s failure in the

course of his evidence to express any heartfelt concerns for the well-being of LD, and it is noted that in his interview with the team

at St Claire’s, his failure to enquire about LD’s well-being is the subject of comment. I do not criticise DE for this as I believe it is a

personality trait which he has inherited and not a trait that he has consciously adopted.

62. The evidence of Dr Carey is that DE, while being sociable and friendly, is also self-absorbed, narcissistic, and at times, arrogant. I

have no doubt that DE dotes on LD and loves her deeply. However, I am not sure that LD is aware of the affection which DE holds for

her and she may feel that his love of things cultural, such as the museum, fails to take account of the things that are important to

her. This could conceivably have had the knock-on effect of subconsciously alienating LD from her father. The contrast in the

relationship which LD has with her mother, the respondent and the respondent’s family is in stark contrast to the relationship which

she has with DE. It is clear that LD and the respondent have a relationship that is built on mutual affection, love and understanding.

The relationship which LD has with DE does not outwardly appear to be at the same level and appears more clinical than warm. I am

therefore of the view that DE will have to reappraise his relationship with LD, with a view to rebuilding her trust and establishing a

relationship that is built on mutual respect and warmth.

63. During the hearing, the love which both parents have for LD manifested itself when both became emotional about their feelings of

affection for LD. The proceedings had to be halted to allow them to recover their composure. It was noted that DE was particularly

distraught during this part of the hearing.

Discussion on Allegations of Sexual Abuse

64. In determining the issue of access, I am obliged, given the length of the hearing and the huge amount of evidence that was taken

in relation to the allegations of sexual abuse, to make a determination as to whether those allegations are true or not. The legal

position is that I must determine the truth or otherwise of the allegations on the basis of the balance of probabilities. In other words,

I must determine whether it is more probable or not that the abuse occurred.

The Respondent’s Argument

65. The arguments put forward by the respondent in favour of a finding that the allegations are true can be summarised as follows:

a. That LD is a truthful girl, who never lies. The respondent has also said that she was convinced about the truthfulness

of the allegations because of the level of specificity that they involved.

b. The respondent says that the recommendation by the gardaí following their investigation that there should be a

prosecution offers further confirmation that the allegations are true.

c. That the findings of St Claire’s sexual assault unit at Temple Street Hospital, that the allegations are credible, is

another factor which favours the argument that the allegations are true.

d. The anxiety which LD has expressed in relation to meeting her father or going to the south side of the city.

e. The findings of Dr Anne Byrne-Lynch that the information which she reviewed suggested a very long-standing pattern

of sexual abuse.

The Applicant’s Argument

66. DE has argued that there should be a finding that the allegations are untrue for the following reasons:

a. The allegations are so extensive and so far fetched that they couldn’t be taken to be true.

b. That the inconsistencies in the allegations render them implausible and unreliable.

c. His trenchant and vehement denials of the allegations.

d. That the allegations are the result of a collective conspiracy by the respondent’s family to terminate his relationship

with LD.

e. That as LD has been the subject of eight interviews, the allegations have now become part of her reality and he relies

on the evidence of Professor Maggie Bruck to support this contention.

f. That he has voluntarily submitted himself to examination by Professor Madden, forensic psychiatrist, and that he has

found that the alleged abuse does not fit into the typical profile for abuse of a sadistic nature. Furthermore, Professor

Madden states that DE does not suffer from a personality disorder and that in his opinion he would be a most unlikely

person to carry out any act of child abuse. He goes on to say that DE would be particularly unlikely to carry out any of

the bizarre and sadistic actions alleged by LD.

Conclusion

67. LD’s allegation that she was abused on all access visits by DE would indicate a minimum of 150 abuse incidents each year. As

already pointed out, all parties are agreed that LD presented as a happy, contented child up until the date of the disclosures. The

evidence indicates that since the disclosures were made, LD has expressed fear of meeting her father and going to the south side of

the city. This could be due to the fact that she knows that what she has said about her father is untrue and that accordingly, she

knows that DE is unlikely to be happy when he meets her. The more likely explanation is that as the allegations have now become LD’s

reality, she genuinely believes that her father has abused her and accordingly is afraid to meet him for that reason. Allied to this, I

have been advised that LD is a compliant child. Given that position, it is possible that she tells people what she thinks they want to

hear. Accordingly, she may have felt that given the strained relationship between her father and KD, KD would have been supportive

of anything negative she might have to say about DE. It is clear that there is a very close relationship between KD and LD and that

LD is very attached to KD and protective of her feelings.

68. Having given long and careful consideration to all of the evidence, and bearing in mind that whatever decision the court makes

must be in the best interests of LD, I am not satisfied, on the balance of probabilities, that the allegations of sexual abuse made by

LD against DE are true. I have come to this conclusion for the following reasons:

i. The descriptions of the abuse as involving metal instruments, in public places and almost at all times of access,

together with the inconsistency in details, makes it more probable than not that the allegations are untrue.

ii. The personality profile of DE, and in particular the evidence of Professor Madden, indicates that DE does not fit the

profile of a person who would have committed the abuse alleged by LD. Indeed, Professor Madden goes so far as to say

that it is highly unlikely that DE would have committed such abuse.

iii. The evidence of Professor Bruck that the constant re-interviewing of LD had made the allegations of abuse her reality

is, in my view, a credible position.

iv. The fact that all parties are agreed that LD was a happy, contented child until the disclosures were made indicates

that the type of abuse alleged is unlikely to have occurred as according to Professor Madden, if such abuse had occurred,

the adverse effects of it would have manifested themselves in LD’s behaviour long before the disclosures were made.

v. Both Professor Madden and Dr Anne Byrne-Lynch struggle to find any purpose for the abuse. It appears that the abuse

as relayed by LD does not contain the essential ingredient common to all sexual abuse, namely sexual gratification for the

perpetrator. This therefore leads me to the conclusion that the abuse did not take place.

69. Having determined that the allegations of sexual abuse do not stand up, I have to make a determination in relation to access. I

am satisfied on the basis of the evidence that there has been a serious break-down in the relationship between LD and DE. I am

satisfied that the break-down in this relationship arose as a combination of DE’s inability to outwardly show warmth and affection to

LD, allied with LD picking up on the cool relationship between KD, SD and DE, and allowing this to feed into a negative view of DE.

70. In the circumstances, I am not in a position to determine access in the absence of a s. 47 report. I am of the view that it is in

LD’s long-term best interest that she re-establish a relationship with DE. I am concerned that the absence of a relationship between

LD and her father for the last 20 months has caused irreparable damage to the father-daughter relationship. Every effort has to be

made to rebuild the father-daughter relationship, while at the same time ensuring that LD is offered every support to allay all the

fears she has in relation to the re-establishment of a relationship with her father. It seems to me that for the relationship to be re-

established in a way that it proves to be a positive experience for LD, it is necessary that a substantial amount of work involving

counselling has to be undertaken with LD before access takes place. This counselling will need to ensure that LD is comfortable with

the re-establishment of a relationship with her father before access takes place. The court also needs to be satisfied that the re-

establishment of access between DE and LD will not adversely impact on LD’s well-being. Accordingly, it could happen that in the best

interests of LD, the court may be obliged to refuse access, even though DE had been found to be blameless in relation to the

allegations, purely to serve the best interests of LD. The court would need very compelling reasons to refuse the application for

access.

71. If the court is satisfied that access should be resumed, then the s. 47 report will have to provide guidance as to how this is to be

done. It would seem to me that any rebuilding of the father-daughter relationship will have to be undertaken gradually and at a pace

that LD is comfortable with.

72. I think it is also important to point out at this stage that it is my view that DE will have to undergo a parenting course which gives

him the skills required to rebuild a loving and lasting relationship with LD. I have already noted in this judgment that DE lacks empathy

and he needs to address this and look to portraying a more affectionate and warm attitude to LD.

73. Accordingly, I am adjourning this matter to allow for the preparation of a s. 47 report which will advise on the resumption of

access. Such report is to be predicated on the basis that the allegations of abuse are not true. The author of the report must then

look at access in terms of what is in the best interests of LD. The court will look for guidance from the author of the report as to

what steps need to be taken by LD and DE to re-establish access. The primary guiding principle behind the s. 47 report should be that

its recommendations reflect what is in the best interests of LD, even if such recommendations are that access should not take place

for the present.

74. I am acutely conscious of the dilemma faced by CD in this case and have nothing but sympathy for her position. As I have said

already, she is clearly a loving and concerned parent who wants to do the best for her daughter. She adores her little girl and cannot

envisage her concocting the allegations of abuse, which she has levelled against her father. We may never establish the source of

the allegations, but at this stage it is important that we move on and start rebuilding trust between DE and LD. CD and her family

have an important role to play in providing reassurance to LD as she embarks on the re-establishment of a relationship with her

father. This involved CD’s family speaking well of DE in the presence of LD and praising his fatherly characteristics. In this respect I

would like to wish all of the parties, especially LD, well.

Addendum

On the 16th of November the court received the section 47 report, which advised that at present the resumption of access between

father and daughter was contraindicated.

The report recommended a protracted 4 stage process for the resumption of access. In the light of the contents of the section 47

report the father has decided to withdraw his application for access and accordingly the court is required to make no further order in

this matter.

The outcome in this case highlights in the starkest terms the inadequacy of the current system in dealing with cases of this nature. It

is clear that " time is of the essence" when dealing with these types of cases. When a disclosure of sexual abuse is made an interview

of the child by a multidisciplinary team consisting of specialist Gardai, appropriately trained social workers and a child psychologist

should take place at the earliest opportunity. One or at most two such interviews should be sufficient to investigate the matter. This

approach would reduce the need as happened in this case for multiple interviews of the child. It would also avoid unnecessary delay

in completion of the investigation. The current approach of multiple interviews results in unnecessary additional trauma for the child

and delays which can irreparably damage the relationship between the child and the parent against whom the allegations are made.

I believe that a whole new protocol for dealing with these types of cases should be put in place as a matter of urgency. It might be

useful to look at the approach now being taken in the UK, where procedures and protocols have been put in place to deal with these

type of cases expeditiously and in a manner that causes minimum trauma to the child , while at the same time contains sufficiently

subtle reality checking to establish the veracity of the claims.

I can't help but feel that in the present case the "system" has failed both parents and the child and as far as I am concerned that is

not a satisfactory system and not one that should be allowed to continue without the type of reform I have alluded to above. These

comments are not to be taken as a criticism of the parties to the action herein or their advisors, who were forced to work within the

confines of what is clearly an inadequate and broken system.