Practice and Procedure

A CITY COUNCIL v (1) Y (2) K (2003)

PUBLISHED January 8, 2004

There was a potential danger of injustice in relying on photographic evidence instead of physical examinations in sexual abuse cases.Application by a local authority to withdraw its applications for care orders in respect of two children, T aged 5 years and C aged 3 years. The mother had T in 1998 and then met F with whom she had another daughter (C) in May 2000. In December 2000 T stayed with her maternal aunt and made comments that led the aunt to believe that T had been sexually abused by F. The local authority arranged for T to be examined by a paediatrician who concluded that T's hymen showed signs of sexual abuse. A photograph was taken of T's genital area during that examination. Care proceedings were commenced in June 2001. In February 2002 a childminder reported that T had made comments about F indicating sexual abuse. As a result both T and C were removed to foster parents and were examined by a consultant paediatrician (Dr SL) who concluded that T's damaged hymen had healed and then possibly suffered a further trauma. Two photographs were taken at that examination. Within the care proceedings, the parents instructed an expert witness (Dr E) who did not physically examine T but relied on the photos. Dr E and Dr SL produced an agreed joint opinion that T's injuries were consistent with sexual abuse. A further doctor (Dr RS) came to the same conclusion again relying on the photos. At the hearing before the judge in January 2003, at which all the doctors gave evidence, Dr RS advanced the hypothesis that T had a sleeve-type hymen which explained how the hymen had appeared to heal between the first and second set of photos. The judge held that the parents had no case to answer and dismissed the care proceedings. The children's guardian and the local authority appealed and a fresh hearing was ordered. Permission was given to the doctors to physically examine T. At the examination Dr RS and Dr E concluded that there was no evidence of sexual abuse and that T had a normal hymen with a cyst. They stated that they had been misled by the photos which were unreliable and did not accurately represent what they saw. All parties agreed that permission should be granted to the local authority to withdraw their applications for care orders.HELD: The purpose of the judgment was to draw attention to the history of the case so that the courts, medical and legal profession could learn a lesson from it. There was no criticism of any individual doctor but there was a potential danger in relying on photos in such cases. The consequences for the family were grave and could have been far worse if the matter had continued. While the aim of minimising intimate examinations of children was an important one, such examinations were nevertheless preferable to a potential grave miscarriage of justice and irreparable harm to the family of the children and their parents. As stated by Dr RS, the implications for good practice in child protection included the need to treat colposcope photographs with caution and the need for the courts to appreciate that intimate examinations might have to be repeated.Judgment accordingly.

[2003] EWHC 3090 (Fam)