Court orders no contact after abuse finding

News|March 25th 2014

A father found to have sexually abused his daughter has failed in a bid for contact.

In SMD v LMD, the couple had separated in July 2007, little more than a year after their marriage, while both were living in Spain. They shared care until the mother took the girl, born in 2005, back to the UK without the father’s consent. He launched proceedings under the Hague Convention on the Civil Aspects of International Child Abduction.

Following mediation, the mother took the daughter, called ‘A’, back to Spain in 2008 and the parents began sharing care again. But the following year, the Spanish courts gave the mother permission to relocate back to England and she left in November.

The father saw his daughter in February 2010 but the following month she reported sexual abuse and he has not seen her since. The mother was granted a non-molestation order in May 2011 and the father applied for contact the following year, under section 8 of the Children Act 1989.

In January 2013, an “extensive” fact finding case was conducted by Mrs Jennifer Roberts QC. At the conclusion of this father was found to have sexually abused the girl “on at least one, and probably more than one occasion” during the year to November 2009.

At the High Court, Mr Justice Keehan noted:

“The father does not accept that finding nor any of the other findings made against him.”

The judge also noted that the during the third day of his application of his application for contact hearing, the father, referred to as ‘SMD’, suffered a stress-related collapse in court and was treated by paramedics.

The judge said:

“When I came into court it was clear the father was not well. He told me he was suffering a migraine but, nevertheless, he wished the case to proceed. I was clearly of the view that it would not be fair or appropriate to do so. Accordingly I adjourned the matter for six days to 6 February to enable the father to recover fully from his collapse.”

Mr Justice Keehan went on to order that the father have no contact with the girl, whether direct or indirect. He declared:

“On the basis of the findings made by Mrs Roberts QC in her judgment of 16 January 2013, the father plainly represents a real risk of further sexual abuse of A. There is, however, in my judgment an even greater risk that if permitted to have contact with A he would cause her serious emotional and psychological harm. I so find for the following nine reasons:

d) he resolutely refuses to accept any of the findings of fact made against him;

e) he has a strong sense that he is the victim of a grave injustice;

f) he is highly critical of the mother and accuses her and her partner of coaching A to make false allegations against him and of alienating the child against him;

g) he has nothing good to say about the mother whatsoever;

h) by his own admission, his anger and frustration overwhelm him to the extent that acts or takes steps which are not in A’s best interest;

i) he has repeatedly asserted that A must and will be told his version of the truth;

j) he is incapable of adhering to any set boundaries of what is or is not appropriate material to be seen by A or for her to be told about;

k) I am satisfied, so that I am sure, that if permitted to have contact the father would feel compelled to discuss wholly inappropriate matters with A;

l) I am satisfied so that I am sure that if permitted to have contact with A the father would:

i) seek to undermine her placement with her mother;

ii) seek her return to live with him in Spain; and

iii) tell her his version of the truth.”

The judge continued:

“I recognise an order for no direct contact is a Draconian step for any court to take. Sadly I am wholly satisfied that it is the only order I can make in A’s welfare best interests. To do otherwise would imperil her future welfare. I consider it to be a proportionate step to take in this matter.”

The father is his own worst enemy.

I have considered whether, despite the final oral recommendation of the guardian, I should permit the father to send Christmas and birthday cards to A I have found this to be a most difficult decision. The advantages would be that:

m) A has some communication from her father;

n) It would help with some greater sense of her identity; and

o) It may help A have some happier and positive views of her father.

Balanced against that are the nine matters I set out…above.

I have no confidence at all that the father would abide by any terms and conditions set out by the court in relation to such indirect contact. I regret that I have come to the reluctant conclusion that indirect contact by means of cards would not be in A’s best interests. Whilst the father might – I stress might- be able to contain himself for the first few cards, I find he would not do so in the medium and longer term.”

The judge concluded:

“In order for the father to succeed in an application for permission to apply for a [section] 8 order he must:

p) accept the findings of fact made against him;

q) successfully undertake the psychotherapeutic intervention recommended by Dr Derry; and

r) demonstrate that he is consistently able to put A’s welfare best interest to the fore and to recognise the beneficial role of the mother in A’s life.

Very sadly I doubt the father will be able to achieve any of the above.”

The judge also made the father subject to a section 91(14) order until 2021, when A will be 16. Also issued under the Children Act 1989, these prohibit applications regarding children without prior court permission for the defined period.

Author: Stowe Family Law

Comments(4)

  1. Paul; says:

    I would like to know what a real forensic expert would make of this case. If you look at the details of the fact-finding (EWHC 4611 Fam) you will note:-

    1. A complete absence of any proper forensic expertise i.e a child psychiatrist who can properly interpret the evidence of very young children.
    2. The ABE interview was conducted by a police officer who was not qualified to interview a “very young person. CPS guidlelines advocate the use of a qualified child expert to carry out such interviews. It was admitted in court that the police officer asked leading questions which is a complete No No as far as credible forensic investigation goes. The child evidence should have been thrown out accordingly instead of being used to hang the father. I had similar evidence against me in my own case which a proper child expert, acting for the court, dismantled piece by piece, logically and rationally. There is no equivalent here. The judge is left to do a job which a judge simply cannot do. Expert analysis and opinion is totally lacking.
    3. The “disclosures” of sex abuse made by the mother and supported by the maternal grandmother arose entirely within the context of a rapidly degenerating parental relationship where it is known that the incidence of false allegations in such circumstances are very high.
    4. Moreover, It is also known that children in these cases can very easily make serious allegations of the kind seen here and they do so partly as a result of suspicious questioning by the accusing parent (which puts the idea in their heads) but which is always denied by the parent. The child also acts to assuage a sense of guilt in desiring a relationship with the disapproved of parent knowing that it displeases the other, main parent. The child will then make allegations which she senses will please the main parent. I’ve seen a technical write-up as to how these allegations develop.

    I know this from the facts of my own case which was looked into by a well-known child expert. Such an expert was absent in this case and the court could well have been making up a conclusion it unconsciously wanted to reach. Therefore, it does not surprise me in the least that the father refuses to admit guilt. He may be innocent or he may not be. We certainly ought not to be convinced neither by the evidence presented in court nor the findings made by the judge.

  2. Luke says:

    I don’t know the details and rights and wrongs of this, but what I can say is that to not even allow indirect contact in the form of birthday and Christmas cards – even if they have to be checked before being given to the child – is quite extraordinary and suggests to me that Mr Justice Keehan can’t even get the basics right. He seems far more keen on punishing the guy than doing the right thing for the child 🙁

  3. Tristan says:

    This case underlines the importance of having access to really good legal advice. In my view, the father acted foolishly in going it alone. On reading the EWHC case I felt he had good grounds for appeal. I knew nothing about child abuse when faced with similar accusations. But my counsel did and knew where to go to find the expertise required to demolish the claims and, not only that, how to convince a judge that such expertise was both necessary and proportional to the issues at hand.

    When faced with serious false allegations around child abuse, never but never take a D.I.Y approach. The difficulty as always is finding the right advisor. Ask Marilyn, she probably knows.

    I would really like to read another professional opinion on this case from a proper forensic expert. By the time it got to the appeal phase the father was well and truly stuffed. The clinical expert was a person who specialised in adult offenders, not someone with long, clinical experience of proving or disproving child abuse accusations.

  4. Family court hearings should be open to the public, says senior judge - Marilyn Stowe Blog says:

    […] the other hand, it’s the children’s cases –  for example, adoption orders and  contact and residence in private and care hearings – that undoubtedly cause the most controversy, not […]

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