Background
The London Borough of Merton sought findings that a young child had been sexually abused and to identify or establish a pool of potential perpetrators from among five individuals with access to the child (the mother, non-subject father, subject father, grandmother, auntie, and boyfriend). The application was triggered by concerning behaviors exhibited by the child starting in September 2024, including exposure of genitalia, inappropriate touching of herself and others, and other behaviors described by professionals as “sexualized.” The child displayed global developmental delay and had been placed in interim foster care.
The local authority’s case relied heavily on expert evidence from a consultant counselling psychologist who, based on clinical experience, reports from school and social workers, and psychological research, opined that the child’s behaviors “likely suggest sexual abuse” and were “not something that I would expect to see in children who were never exposed to sexual abuse.” However, the expert acknowledged she could not be certain abuse had occurred and was not offering a definitive diagnosis. Alternative reports from the Haven, a specialist sexual abuse team, noted possible innocent explanations including normal childhood exploration and skin irritation.
The Court’s Holding
HHJ Willans rejected the allegations and made no findings of sexual abuse. The court found the expert evidence insufficient to meet the balance of probabilities standard. The expert’s conclusion that the behaviors “likely indicate” abuse, coupled with her acknowledgment that she could not be certain and had not definitively concluded abuse occurred, fell short of proving the allegations. The specialist Haven report provided credible alternative explanations for the concerning behaviors, including normal developmental exploration and physical irritation from nappy rash. The local authority presented no direct evidence of abuse—no witnesses, no disclosures by the child, and no corroborating facts placing any specific individual as a perpetrator.
The court expressed particular concern about the use of the term “sexualized behaviours” as impermissibly loading the language to presuppose the finding of abuse before facts were established. Drawing analogy to the impropriety of using “disclosure” rather than “allegation,” the judge emphasized that the behaviors could only properly be described as “sexualized” if abuse were actually proven. The court emphasized that applying forensic rigor and resisting the “child protection imperative” does not constitute a failed proceeding when evidence is insufficient.
Key Takeaways
- Expert evidence that certain behaviors are “likely to indicate” abuse, without certainty or a definitive diagnosis, does not meet the balance of probabilities standard required to establish child sexual abuse.
- Courts must carefully scrutinize expert conclusions in child protection cases and maintain rigorous evidentiary standards, not permitting procedural informality or emotional context to reduce the quality of proof required.
- Alternative innocent explanations for concerning child behaviors—including normal development, sensory stimulation from skin conditions, and exploration—must be properly considered and weighed against abuse allegations.
- Language used in proceedings matters: describing behaviors as “sexualized” presupposes the factual finding of sexual abuse and impermissibly loads the language pending proof.
Why It Matters
This decision provides important guidance on the evidential threshold for establishing child sexual abuse in family proceedings. While child protection concerns are serious and warrant careful investigation, courts must maintain forensic rigor and not permit the emotional gravity of the subject matter to relax proof standards. A conclusion that certain behaviors “likely indicate” abuse—without more concrete evidence—is insufficient. The judgment clarifies that expert psychology evidence, though valuable, cannot substitute for actual proof of abuse and must be subject to proper testing, including consideration of alternative explanations.
The decision also has practical implications for practitioners. It illustrates the importance of obtaining multiple expert perspectives (the contrast between the applicant’s expert and the Haven’s specialist report was material), properly framing evidence without prejudicial language, and recognizing that a court’s refusal to make unproven allegations is not a “failure” but rather the proper functioning of the fact-finding process. The judgment reinforces that local authorities must make out a positive case grounded in evidence, not proceed on inference or the cumulative weight of concerns alone when specific allegations of abuse are at issue.