Recent Case Law on fact Finding Hearings in Private Child Law Proceedings

Y and E (Children) (Sexual Abuse Allegations) [2019] EWCA Civ 206

Judgment: 21 February 2019

Baker and Underhill LJJ and Sir Patrick Elias

The child was aged 12 by the time of the appeal. In 2010, a year after the parents separated, the child began to suggest that she had been sexually abused by her father. An assessment by social services resulted in the child becoming the subject of a protection plan. However, contact resumed. In 2016, the mother made further allegations of sexual abuse, against the father. The father alleged fabrication by the mother and maternal grandmother. The child was interviewed on three occasions and made detailed allegations against her father. Private law proceedings were issued and public law proceedings followed.

In December 2017, the judge at first instance made findings against the father including that he had raped her anally on multiple occasions and vaginally on at least one occasion. He found that the mother had failed to protect the child, by not reporting the allegations straight away. The father appealed on various grounds including that the judge had failed to consider the fact that there were many breaches of the ABE guidelines including not making any record of any planning of the interview process, no proper ‘rapport’ phase and ground rules such as ‘truth and lies’ taking place off camera.

Held: The appeal court concluded that the judge at first instance had been entitled on the evidence before him, to make the findings that he did make.

Re K (children) [2019] EWCA 184

Judgment: 19 February 2019

Gross LJ, Peter Jackson LJ and Rose LJ

The father was accused of sexually abusing his 6 year old daughter. She first made the allegation to a teacher at her mosque. The father moved out of the family home. Care proceedings followed and there was a 4 day fact finding hearing. The trial judge made findings against the father of physical harm, indecently assaulting and grooming her. The judge also made a finding based on the observations of contact supervisors, that the father had become sexually aroused during contact. The judge had closely analysed the process by which the child’s account was investigated by the authorities and was highly critical of almost every aspect. The home and school visits were poorly planned. The ABE interview was “shambolic” and the entire investigation was defective in these ways:

(1) A lack of leadership and blurring of responsibilities
(2) Introduction of too many police officers to the children
(3) Too many meetings and unplanned interviews not properly documented
(4) Rapport-building by officers who would not conduct the ABE interview
(5) Inadequate consideration of an intermediary assessment at the outset
(6) Failure of the social worker to keep case recordings
(7) Failure by officers to review the initial interview recorded on body cam
(8) Failure to adhere to 2011 ABE interview guidelines.

The trial judge was impressed with the evidence of the teacher from the mosque, she was described as truthful, honest and trustworthy. Of the mother, the trial judge concluded that a script had been agreed between her and the father.

Held: Appeal dismissed, save that the finding that the father had been sexually aroused during contact was overturned.

The appeal failed to meet the rigorous test laid down in Re B (a child) [2013] UKSC 33:

“… the trial judge has the benefit of assessing the witnesses and actually hearing and considering their evidence as it emerges. Consequently, where a trial judge has reached a conclusion on the primary facts, it is only in a rare case, such as where that conclusion was one (i) which there was no evidence to support, (ii) which was based on a misunderstanding of the evidence, or (iii) which no reasonable judge could have reached, that an appellate tribunal will interfere with it.” Per Lord Neuberger.

The trial judge gave herself a model legal self-direction and applied it to the evidence in a clearly-reasoned judgment. Though accounts given by the teacher from the mosque had differed, they contained a consistent core and the variations were of a kind that inevitably occurs when a witness is retelling an account to different people at different times. The judge had approached the child’s allegations with proper caution. The judge’s conclusion that the only probable reason for the child to say what she did was that it was true, was one that was clearly open to her on all of the evidence. The judge also rightly cautioned herself that an initial account will usually be insufficient for proof because it lacks detail. Here she found that the account given by the child to the teacher contained a level of detail that rendered it reliable. In reaching her conclusion the judge looked to the evidence as a whole, including the mother’s relative ineffectiveness as a protective force, and the damaging credibility findings she had made on non-sexual matters. Crucially, the judge was entitled to form a reasoned view on the credibility of the father. Had she formed a more positive view of his character and credibility, she might have found the child’s statement on its own insufficient to prove the allegation. But her assessment of the father did nothing to reduce the likelihood that it was true, indeed it made it more probable. The judge was entitled to find that the recipient of the child’s confidences was a reliable witness and that the child had truthfully unburdened herself to her before clamming up to others. The judge’s chain of reasoning was secure in relation to her central finding of fact and the appeal must therefore fail.
However, in relation to the finding that the father had become sexually aroused during contact, the court concluded that this finding should be set aside. This was a peripheral issue and did not undermine the judge’s principal findings.

PR v JES v TER (Appeal: Sexual Abuse, Fact Finding) [2019] EWHC 791 (Fam)

Judgment: 29th March 2019                                                                                                             

Mr. Justice Williams

In January 2017 the judge found that sexual abuse allegations relating to their daughter that had been made against the father by the mother, were not established on the balance of probabilities. At this time, the child was aged 5/6. There was no medical evidence of sexual abuse and the child had made no disclosures of abuse. In April 2017, the child told a contact centre worker that she did not like it when her daddy washed her bottom. The contact centre worker gave the child a doll to demonstrate what she meant. During a second meeting with the contact centre worker the child wrote down that she didn’t want to see her father because he “does nasty stuff”. The child then wrote down that the father had digitally penetrated her. The matter was referred to the police and children’s services. Contact then took place between the child and the father.
During an ABE interview the child did not give verbal answers but wrote down that there had been digital penetration inside her bottom. In January 2018, a rehearing took place. The judge made findings against the father. The father appealed.

Held: Appeal allowed

Applying Re J (vulnerable witness: sexual abuse: fact finding) [2014] EWCA Civ 875 [2015] 1 FLR 1152; Re E (A Minor) (Child Abuse: Evidence) [1991] 1 FLR 420 and AS-v-TH and Others (False allegations of abuse) [2016] EWHC 532 (Fam), in relation to allegations of sexual abuse of young children the court must not only deploy the generic fact-finding approach but must in particular identify the need for special care to be taken in evaluating the reliability of the evidence of young children. The more complex the background and evidence the more sophisticated will the analysis need to be and the more obvious the demonstration that special care has been taken. The judge did not set out the great care that needs to be given when assessing the evidence of young children.

In the first judgment, the judge had given a careful review of the evidence. However, in the second judgment the review of the further evidence had been brief considering the complexity of the evidence. The new allegations considered as part of the hearing in 2018 were not considered against the context of the earlier allegations. They were not subjected to any real scrutiny. This context included the ‘innocent’ interview by the contact centre worker which was not ABE compliant, the use of the doll, and leading questions that were put to the child by the mother. The judgement did not address or analyse the fact of how many times the child had been interviewed since the first allegations were made by the mother in 2015. The judge did not explain why the latter interviews of the child were given greater weight by him than the earlier ones carried out by professionals. The consistency point was not addressed. The lack of corroborating evidence was not addressed. The absence of express consideration of the above factors in this complex case was a considerable flaw.

The judge had placed too much weight on the evidence of the child when such weight could not be properly attributed to it without a detailed contextual analysis. The judge had failed to address that the reliability of the evidence had to be viewed in the context that it came into existence.

M v F (Appeal: Fact Finding) [2019] EWHC 572 (Fam)

12th March 2019

Mr Justice Williams                                                                                                                           

The child, C, was born in 2014. In 2017 the mother left the parties’ home with the child and moved to a refuge. The father applied for a child arrangements order. The mother made allegations against the father including serious violence, coercive and controlling behaviour, use of force against the child and emotional abuse of the child. The mother sought non-molestation orders. HHJ Tolson QC heard a two day fact-finding hearing.
The judge found only one allegation of physical conduct towards the mother, which he found was provoked. He concluded that there was no clear controlling or coercive behaviour, and that the father did not pose a direct risk to the child, or any psychological risk to the mother. The mother sought leave to appeal on the grounds of unfairness and public policy, in respect of the findings made by the judge, and in respect of the application of the law.

Held: Permission to appeal was refused on the basis that none of the grounds had any realistic prospect of success.

There were no issues of fairness or public policy. The judge had not minimised the seriousness of domestic violence, the mother had been given a fair hearing and the judge had not prejudged the issue. The judge’s interventions during submissions and the subsequent judgment had the “appearance and hallmarks of a concise, robust piece of judicial decision-making based on a thorough understanding of the essential principles which bore upon the decision he had to make”.

The conclusions reached on the evidence were open to the judge and there was nothing stated by the appellant that suggested these were insupportable. The findings made did not victim blame the mother, were evidence based and the judge was permitted to find a link between the mother’s exaggeration and her subsequent honesty or reliability as a witness. Although the judge had focused on two of the alleged physical incidents he had not failed to grapple with the wider factual matrix. In respect of the application of the law, the judge had not erred in his application of the balance of probability test. He had not erred in his application of Practice Direction 12J.