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Re T-B-N (Children) [2016] EWCA Civ 1098

Appeal against substantial findings of fact in care proceedings.

This appeal concerned findings of fact made by Pauffley J in care proceedings that the appellant had sexually abused two children, W and S. Findings were also made in respect of emotional and physical abuse but these were not the subject of the appeal.

Counsel for the appellant argued that Pauffley J's analysis of the evidence was deficient and fatally undermined her findings. The appeal was brought on four grounds, namely:

1. In respect of W's allegations, there were a number of features which the Judge failed to place proper weight on or deal with sufficiently in her judgment;
2. The Judge failed to give proper weight to the scope for W to have influenced S in the making of his allegations;
3. The Judge failed to give proper weight to S's ability to fabricate allegations; and
4. The Judge placed insufficient weight on S's retraction of his allegations.

Prior to discussing each of the grounds of appeal, the court reminded itself of the proper approach to appeals of findings of fact. It was highlighted that the Court of Appeal will only rarely even contemplate reversing a trial judge's findings of primary fact, and that the role of any first instance judge is not to "slavishly restate either the facts, the arguments or the law"; he or she must "enable the parties to understand why they have won or lost; and to provide sufficient detail and analysis to enable an appellate court to decide whether or not the judgment is sustainable" [12].

Black LJ indicated [at para 13] that in appellants in appeals such as this "will normally be expected to raise with the judge and draw to his attention perceived problems with the judgment, such as material omissions which there are thought to be in it, or any lack of reasons or other perceived deficiency in the judge's reasoning process."

The Court of Appeal noted, its task was to evaluate the specific grounds of appeal put forward by the appellant, considering whether they demonstrated that the factual findings made by the Judge could not be supported, rather than to remake the findings that the judge had made.

After careful consideration of all of the grounds, the court dismissed the appeal. The court was satisfied that Pauffley J had given careful consideration to all of the matters cited in the grounds of the appeal and was entitled to come to the conclusions that she had.

Summary by Bianca Jackson, barrister, Coram Chambers

________________ 

Case No: B4/2016/1561
Neutral Citation Number: [2016] EWCA Civ 1098

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT FAMILY DIVISION
MRS JUSTICE PAUFFLEY
MK15C00075

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 15/11/2016


Before :

LADY JUSTICE BLACK
LORD JUSTICE HAMBLEN
and
LORD JUSTICE IRWIN
- - - - - - - - - - - - - - - - - - - - -

T-B-N (children)
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- - - - - - - - - - - - - - - - - - - - -

Mr Nick Goodwin QC & Ms Emily Boardman (instructed by Turpin & Miller LLP) for the Appellant
Mr Simon Miller
(instructed by Buckinghamshire Law Plus) for the 1st Respondent
2nd Respondent
did not attend and was not represented
Ms Vicky Preece
(of IBB solicitors) for the Children's Guardian

Hearing date: 20th October 2016
- - - - - - - - - - - - - - - - - - - - -

Judgment
Lady Justice Black:

1. This appeal concerns findings of fact made in care proceedings by Pauffley J. The judge's findings are contained in a judgment dated 17 March 2016. The appellant was found to have abused two children sexually. He contended that the judge was wrong to reach the conclusions that she did about this and that the findings should be set aside. The matter was listed for an oral hearing of the application for permission to appeal, with the appeal to follow immediately afterwards should permission be granted. At the conclusion of the hearing, we informed the parties that we would grant permission to appeal but dismiss the appeal, for reasons which would be provided later in writing. The purpose of this judgment is to give my reasons.

Introductory background

2. It is necessary to provide some information about the interlocking family relationships in this case. The judge made findings about matters other than sexual abuse, including neglect and physical abuse, but it is the sexual matters that were the focus of the appeal. They came to light by virtue of allegations made against the appellant by S, who was born in 1999 and was 16 and a half years old at the time of the hearing before the judge, and W, who was born in 1989 and so is in his mid-twenties. S is the son of the appellant and a woman I will call SM. W is S's older half-brother, SM also being W's mother. SM and the appellant were in a relationship with one another during W's childhood.

3. The appellant has another son, J, whose mother is JM. J was born in July 2011. JM also has a daughter by another man but that daughter (K) lives with her father and I need not refer to her further. JM's other daughter by the appellant, R, was born in April 2015 but died as a result of sudden infant death syndrome towards the end of August 2015, four weeks after she had been placed in foster care pursuant to an interim care order.

4. S has been living in foster care since November 2014, initially under an arrangement made under section 20 Children Act 1989, and then under an interim care order. J presently lives with foster parents as well.

5. The key questions in the care proceedings, as identified by Pauffley J at the outset of her judgment, were whether, on the basis of whatever facts were established, the appellant posed a risk to children, whether physical, sexual and/or emotional, and if so, whether JM was able to provide a child with adequate protection from harm. It was, of course, particularly in relation to J that these issues were relevant.

6. The fact finding hearing took almost three weeks. Thousands of pages of documentary material were available to the judge, as well as audio/video recordings and live evidence from witnesses.  The judge concluded (§31) that the appellant had been responsible for "the most alarming catalogue of physical, sexual and emotional abuse of W and S". She found that his misconduct in relation to W began when W was only 14 or 15, and maybe much younger. In relation to S, she found that it began in about 2009, when S was 10 years old, and continued until S was accommodated by the local authority in November 2014. She classed the appellant as (§106) "a highly dangerous, unrepentant and devious paedophile who has preyed upon the weak and vulnerable" and said that all the signs were that given the opportunity, he would abuse again.

7. The judge also made findings about JM who was, and remains, wholly supportive of the appellant and considers that he has done nothing wrong. Pauffley J found that the appellant "controls and intimidates his wife" (§100). She found that JM was "responsible for having seriously failed to protect S from his father's bullying, aggression and victimisation" (§103). Although S had not suggested that JM knew what was happening concerning his father's sexual abuse of him, the judge found that she was "implicated" in a "very worrying set of circumstances" in the home, in view of the attitudes there to "sexual activity across the generational boundaries and sexualised behaviour as demonstrated by both S and J" (§104). JM did not seek permission to launch her own appeal, the findings about her being dependent upon the findings that the judge made about the appellant, whose appeal she supported.     

Appeals against findings of fact: the proper approach of the Court of Appeal
8. As the Supreme Court said in In re B (a child) [2013] UKSC 33, the Court of Appeal will only rarely even contemplate reversing a trial judge's findings of primary fact (§52). Lord Neuberger said (§53) that this is:

"….traditionally and rightly explained by reference to good sense, namely that 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. This can also be justified on grounds of policy (parties should put forward their best case on the facts at trial and not regard the potential to appeal as a second chance), cost (appeals on fact can be expensive), delay (appeals on fact often take a long time to get on), and practicality (in many cases, it is very hard to ascertain the facts with confidence, so a second, different, opinion is no more likely to be right than the first)."

9. Similar sentiments can be found in most of the judgments. Lord Kerr said:

"108. A conclusion by a judge at first instance on which facts have been proved, and which have not been, involves the judge sifting the evidence that has been led, assessing it and then deciding whether it has brought him or her to the necessary point of conviction of its truth and accuracy. Although an appellate court is competent to hear appeals against the findings of fact that the judge has made, of necessity, its review of those findings is constrained by the circumstance that, usually, the initial fact-finder will have been exposed to a wider range of impressions that influence a decision on factual matters than will be available to a court of appeal. This is not simply a question of assessing the demeanour of the witnesses who gave evidence on factual matters, although that can be important. It also involves considering the initial impact of the testimony as it unfolds – did it appear frank, candid, spontaneous and persuasive or did it seem to be contrived, lacking in conviction or implausible. These reactions and experiences cannot be confidently replicated by an analysis of a transcript of the evidence. For this reason a measure of deference to the conclusions reached by the initial fact finder is appropriate. Unless the finding is insupportable on any objective analysis it will be immune from review."

10. Lady Hale said:

"200. … The Court of Appeal has jurisdiction to hear appeals on questions of fact as well as law. It can and sometimes does test the judge's factual findings against the contemporaneous documentation and inherent probabilities. But where findings depend upon the reliability and credibility of the witnesses, it will generally defer to the trial judge who has had the great advantage of seeing and hearing the witnesses give their evidence. The question is whether the findings made were open to him on the evidence. As Lord Hoffmann explained in Biogen Inc v Medeva plc [1997] RPC 1, the need for appellate caution is "based upon much more solid grounds than professional courtesy". Specific findings of fact are "inherently an incomplete statement of the impression which was made upon him by the primary evidence. His expressed findings are always surrounded by a penumbra of imprecision as to emphasis, relative weight, minor qualifications and nuance . . ." In child cases, as Lord Wilson points out, there is the additional very important factor that the court's role is as much to make predictions about the future as it is to make findings about the past."

11. The Supreme Court also made reference to Piglowska v Piglowski [1999] 1 WLR 1360 (see for example Lord Wilson's judgment at §41), an authority which is sufficiently well known not to require further citation here.

12. It is also important, in approaching an appeal such as the present one, to have in mind the observations of the President of the Family Division, sitting in the Court of Appeal, in Re F (Children)  [2016] EWCA Civ 546 at §22:

"Like any judgment, the judgment of the Deputy Judge has to be read as a whole, and having regard to its context and structure. The task facing a judge is not to pass an examination, or to prepare a detailed legal or factual analysis of all the evidence and submissions he has heard. Essentially, the judicial task is twofold: to enable the parties to understand why they have won or lost; and to provide sufficient detail and analysis to enable an appellate court to decide whether or not the judgment is sustainable. The judge need not slavishly restate either the facts, the arguments or the law. To adopt the striking metaphor of Mostyn J in SP v EB and KP [2014] EWHC 3964 (Fam), [2016] 1 FLR 228, para 29, there is no need for the judge to 'incant mechanically' passages from the authorities, the evidence or the submissions, as if he were 'a pilot going through the pre-flight checklist.'"

13. Finally, in terms of the general approach of this court to appeals such as this one, it is to be noted that the appellant will normally be expected to raise with the judge and draw to his attention perceived problems with the judgment, such as material omissions which there are thought to be in it, or any lack of reasons or other perceived deficiency in the judge's reasoning process. There are many authoritative statements of this requirement but see, for example, In the matter of L and B (Children) [2013] UKSC 8. No such request was made of the judge here, although it was clear that the appeal depended significantly upon perceived gaps in the judge's reasoning and her supposed failure to take into account features of the evidence.

The allegations and retractions

14. An appeal judgment such as this one will necessarily only refer to a fragment of the large quantity of material available to the trial judge. Naturally, we were not provided with the full trial bundles, only with the papers necessary for the appeal. Our task was not to remake the findings that the judge made, without the advantage that she had of seeing and hearing the witnesses of fact, watching the picture evolve, and picking up clues to the truth, during the hearing, from a good deal more than mere words. Our task was to evaluate the specific grounds of appeal put forward by the appellant, considering whether they demonstrated that the factual findings made by the judge could not be supported. With this in mind, I will confine my references to only so much of the evidence as is necessary to explain the appellant's arguments and my conclusions about them.

15. W was about 10 when the appellant came into his life for the first time, having formed a relationship with W's mother, SM. The relationship with SM lasted only a short time, but the appellant later came back into W's life. W's account is that the appellant sexually abused him when he was 14 years of age. The appellant agreed that he engaged in sexual activity with W when W was a teenager, but he said this was on a consensual basis and did not occur until W was 16. 

16. It was at the beginning of August 2007, when he was 18 years old, that W first spoke of the appellant's sexual conduct towards him. Preceding W's allegations, there had been various concerns about sexual behaviour on the part of both W and S, not directly involving the appellant, of which the following are examples. In 2004, when he was 15, W was accused of molesting an 8 year old girl. At around the same time, S (then aged about 4) was said to have said that W had involved him in sexual behaviour, but S said nothing about it to the police and they took no action. In July 2007, when S was coming up to his 8th birthday, S was reported to be photographing his own and his younger half-sister V's genitals and said he had seen things like that take place between W and W's girlfriend. At around the same time, V told a social worker that W had touched her "down there". In light of these matters, a meeting took place between W and social workers on 1 August 2007. It was at this meeting that W's allegations against the appellant first surfaced.

17. An ABE interview of W was conducted on 3 August 2007 and formed part of the material available to the judge. In it, W described having been sexually abused at the age of 7 by a friend of his mother's and then, when he was older, by his mother's partner. Then, when he was coming up to 15, the appellant started to abuse him, he said, and the abuse was continuing.

18. W later appeared to retract his allegations. There is a social work record noting that on 25 June 2014, in the course of a conversation that the social worker had with W, JM and the appellant, which included a discussion of previous social care involvement with W, W "admitted to making it all up at that time". A former girlfriend of W's (X) made a statement saying that W had also told her that his allegations were untrue and, in oral evidence at the hearing before Pauffley J, W admitted telling her this. Another partner of W's gave evidence that W told her that he "had a relationship" with the appellant when he was 16 or 17. W's evidence at the fact finding hearing, however, was that the allegations were true.

19. S's allegations of abuse by the appellant came a long time after W's. S moved to live with the appellant and JM, who had recently begun a relationship, in 2010. His behaviour caused concern in the years that followed, as the following examples show. It was sufficiently troubling at school to lead to him being referred to CAMHS in 2012. From the end of 2013, he was regularly going missing and, in January 2014, he was said to be having aggressive outbursts at school and to have inappropriately touched females. He alleged that, in the past, his step-father (P) had been violent to him. Then, on 13 May 2014, he refused to go home and said he wanted to go into care. He complained of the appellant shouting and alleged that he had grabbed him by the scruff of the neck on one occasion. He went to stay with his grandfather for a period, returning home at a later date. The next few months remained troubled, with S going missing from time to time and being difficult at school. On 3 November 2014, he produced a rap song, the content of which led to concerns that his father had hit him, following this up on 5 November 2014 by telling the police about physical abuse. On 6 November 2014, he moved to live with a foster carer.

20. On 27 March 2015, an important telephone conversation took place between W and S. It seems to have been common ground at the hearing that W and S had got back in contact with each other prior to this telephone call. The call was recorded by S. The contents of it were transcribed and the judge was also able to listen to the recording. In the course of the call, S asked W what happened between W and the appellant. W said that the appellant got boys, including W himself, drunk and forced himself on them. S then said he had abused him sexually too. W asked him if he would go to the police about it and S responded that he would not as it was too embarrassing. However, after the telephone call, he told his foster mother that the appellant had been sexually abusing him from the age of 10. Police interviews followed, culminating in a video recorded interview on 7 April 2015, which the judge watched, setting down her observations about it in her judgment. In the interview, S gave a detailed account of sexual incidents to which the appellant subjected him. The judge said of it that it was "an utterly credible, distressing and authentic account of sexual abuse", taking the view that "[b]y no stretch of the imagination could [S] have been fabricating what he so graphically described" (§74). On 17 April 2015, the appellant was arrested on suspicion of sexual offences with children.  

21. In mid June 2015, S made what were referred to as "the intruder allegations". It was ultimately concluded that the events he described as having taken place on two separate days, had not taken place. What he described, in vivid detail, of the first occasion was that a man came to his foster home, manhandled him and shouted at him, including telling him to retract his statement, then left. On the second occasion, he contacted his foster mother, who was out for a short time, to tell her the man had come back and that he, S, was tied to a chair with gaffer tape. The foster mother immediately returned home and found S was indeed tied to a chair with tape. S said that there had been a struggle and the chair had made a mark on the wall. The wall was damaged, but not in a way consistent with the damage being caused by the chair.

22. Around a week later, S contacted the police and asked about withdrawing his complaint against the appellant. From this time on, S's attitude to the veracity of his allegations was variable. He said to the police initially that what he had said was true but he wanted to build bridges with his father and family whilst still remaining in care. In early July 2015, he said to the police that he wanted to retract his statement, but less than a week later, in a meeting with the guardian on 7 July 2015, he stood by his allegations. In conversation with the police a little after this, he said that he did not want to go to the criminal court and was relying on the civil court to keep him safe, and that he wanted to withdraw his police statement. Next day he made a new statement withdrawing what he had said in the video interview and also his statement about physical assaults by the appellant. He said in that statement that he had thought that the only way to keep himself and his siblings safe was to engage with a criminal investigation, but he was now aware of the possibility of doing this through the civil court and, whilst confirming that all of the abuse had happened, he did not feel that progressing the criminal prosecution would benefit the family.

23. Towards the end of August 2015, R died. At some point thereafter, S said that his allegations had been lies. The judge set out what she considered to be the effect of R's death on S. It is worth quoting an extended passage from her judgment, in which she dealt with this and also analysed S's retractions more generally, explaining why, in her view, he had retracted what she considered to be true allegations:

"86. S's retractions were partial at first. They arose from a strong wish on his part to protect his father from the threat of imprisonment and a desire to work with his family not against them. In all probability, S would never had had the strength or resolve to give evidence in the Crown Court. S's discussions with …his then guardian and…his solicitor on 7 July last year are highly material in understanding his thought processes. He stood by his allegations but was not sure about the criminal proceedings. On 15 July, he told [the police officer] that all he had ever wanted was for his siblings to be safe. He wanted to rebuild a relationship with his father and did not feel that criminalising him would help. His retraction statement made two days later on 17 July makes crystal clear that the abuse happened, all of it. S's overriding wish was to be safe and not to be forced to go back home. He expressed faith in the civil court system to protect him and his siblings.

87. After R's death, S's urge to restore himself – at least theoretically – as a member of the only family he has ever known became increasingly stronger. I have no doubt that he felt great personal sadness as a result of the baby's death and immense sorrow for both [JM] and his father. S has been placed under great pressure by both his father during even supervised contact and by [JM] in the messages sent by her at the time of and subsequent to R's funeral. S has also been heavily influenced in his decision to withdraw his allegations by the information that a potential care plan for J could involve adoption. In evidence, he said "Yeah it was "fair to say that one of the reasons for retracting the allegations was because (he'd) known J would be adopted (if they were maintained)." (sic)

88. It was not accident that two of the three photographs supplied by S at the beginning of the hearing featured J. Plainly he loves his brother a great deal. It must be uniquely painful for S to contemplate the possibility that as a result of these proceedings he could lose contact with J.

89. S's retractions were made for a whole variety of reasons as the extant documentation reveals. But I have not the slightest doubt as to the actuality. S's allegations against his father were true. The retractions, all of them, were false."

24. S did not consistently maintain his retraction even after R's death. On 16 October 2015, in a meeting with the guardian, discussing W's allegations, S laboured the point that the relationship between W and the appellant was legal as W was 16. When it was pointed out to him that W had alleged abuse starting at 14, S commented, "How come it started at 14 with him, but 10 with me." Furthermore, reminded that he had previously expressed his concern about J's safety in the care of the appellant, he said, "could people not check on J if he went back."  

25. To complete the picture, S made a further police witness statement dated 22 October 2015, in which he said he lied about all of the physical and sexual abuse allegations. He described two motivations, to get back at his dad and because W talked him into lying. However, on 5 November 2015, he told the social worker that he knew J would not be safe from the appellant if he were to be returned home as the appellant might do it to J. His position at the hearing before Pauffley J, at which he gave evidence, was that his abuse allegations were lies.

The judge's treatment of factual material in the judgment

26. The judge refers to aspects of the chronology of events and of the documentation specifically in the judgment, but, as she expressly said at the outset of the judgment, it is important to read it in conjunction with the local authority's case summary and chronology of allegations. These are two very detailed documents, running to over 60 pages in total, in which can be found not only a summary of key events but also a transcription of central parts of the evidence. Whilst it was obviously necessary for the judge to address certain crucial parts of the history specifically, and to demonstrate that she had the material parts of the evidence in mind, it was not necessary in this case for her to repeat in her judgment all that is set out in the summary and chronology.

The judge's assessment of the central witnesses

27. The judgment shows that the judge carefully considered all the material available to her that would inform her assessment of the truth or otherwise of what was alleged against the appellant. She described her impressions of W's and S's police interviews and of the telephone call between them, and she set out the impression W, S and the appellant made personally upon her when giving evidence to her.

28. W struck her as a very vulnerable young man. Challenged as to whether he had consented to the appellant's activities, he said he had not but that it happened so many times that he did not know the difference between that and normal life.  S she found to be extremely suggestible, strikingly immature, and very vulnerable, with low self-esteem and lacking in self-confidence.

29. The judge noted certain specific aspects of the appellant's oral evidence (such as his unguarded response to a question about a male teenager's crush on him and his responses to allegations about physical violence) but, in assessing him, she plainly drew also upon the material available to her as a whole and upon her own observations of him during the hearing. She described, for example, one particular aspect of behaviour that she herself saw in court (§100), and which contributed to her conclusion that the appellant "controls and intimidates" JM. She found that all the indications were that he "derives personal satisfaction from exerting power and control" (§61), attributing the rough, angry and frightening incident in which he had been involved with S outside a supermarket to this. She spoke of the appellant's "sphere of influence and control" into which he was "quite prepared to accept his victims back" if they retracted (§43), and commented on the "tragic reality" that he had been able to draw his victims repeatedly back to him (§51).  She thought that the evidence revealed a man who was capable of "a whole range of manipulative ways", who had been experienced by W and S as kind on the one hand but "scary and sexually abusive on the other" (§85).

The grounds of appeal and discussion
30. Mr Goodwin QC, counsel for the appellant, acknowledged that considerable weight would be attributed to the advantage that the judge had by virtue of presiding over the hearing but submitted that her analysis of key evidence was deficient and that this fatally undermined her findings. He helpfully grouped his submissions into four grounds of appeal.

31. The first ground of appeal concerned the judge's treatment of W's allegations. In this regard, attention was invited to a number of features which it was said the judge should have found significant but failed to give appropriate weight or to deal with sufficiently in her judgment. Much detail was involved in the argument under this heading. Though I have not referred to all of it here, I have had it well in mind.

32. The first category of material relied upon was W's troubled background. Mr Goodwin submitted that this involved poor parenting and exposed him to abusive adult sexual behaviour before he lived with the appellant. He pointed to the occasions on which W was alleged to have behaved in a sexually inappropriate way with children in 2004 and 2007 (see above) but which W denied.

33. Secondly, reliance was placed upon the fact that, at the conclusion of the police investigation in 2007, the police concluded that W was an unreliable witness. Mr Goodwin listed weaknesses thought by the police to exist in W's 2007 account. These included, for example, that others W said had been sexually abused denied that, that all his allegations against three men were identical, and that he alleged rape by a gang of men but there was no medical evidence of that.

34. Mr Goodwin submitted, thirdly, that the judge failed to analyse the significance of W's retractions or his admissions that he had lied (see above). In particular, he complained that she did not analyse properly the significance of the "retraction" to W's former girlfriend, X.

35. Fourthly, Mr Goodwin said that the judge had failed to deal with the numerous inconsistencies in the accounts of abuse that W gave in 2007 to social workers and in his ABE interview, in a statement he made for the police and adopted in the family proceedings, and in his oral evidence. These could not, he said, be explained by the passage of time given that there were inconsistencies, for instance, even between the long narrative given by W at the start of his ABE interview and the responses he gave to questions later in it. Mr Goodwin picked out specific features of the interview as inconsistent and/or improbable. Some I have referred to already in connection with the police view of W's reliability in 2007. Others included: the assertion by W that he screamed constantly during the assault by one man but no one came although his mother was in the house; the assertion that a neighbour came to the door in response to his screams when another man was assaulting him which is not backed up by any evidence that the police or W's mother learned of the neighbour's concerns; and the fact that W's written statement deployed in the family proceedings puts him at his father's house from the age of 10 until he was 16 years old when he went to the appellant, which did not fit with what he said elsewhere, which placed him not at his father's but in his mother's care and also in contact with the appellant.

36. Despite Mr Goodwin's careful submissions, I concluded that there was nothing in any of the elements contained in ground 1. In the following paragraphs, I will attempt to draw out some of the main features that led me to that conclusion.

37. The judge said specifically that she had considered the detail of the inconsistencies, "internal and otherwise" in W's police interview which had been itemised for her by Mr Goodwin. She recognised that it was being submitted that they were "substantial" (§48). It is true that she did not respond in detail to every one of the matters raised, but she did give a number of reasons why, as a whole, they did not trouble her. To my mind, when one reads the entirety of the judgment, it contains quite sufficient justification for that conclusion.

38. Despite Mr Goodwin's submission to the contrary, I am satisfied Pauffley J was mindful at all times of the possibility that such problems as there were with W's (and S's) accounts might be explained by them having fabricated them. She was scrutinising their allegations critically at all times to see what alternative explanations there might be for them, other than that the behaviour described actually occurred. It is hardly necessary to pick out examples of this approach, which permeates the judgment, but it is evident, for example, in §§ 82-84 (where, dealing with the telephone call between W and S, the judge considered whether they had met "to construct a detailed series of allegations") and §40 (where she considered ulterior motives suggested to have led to W fabricating his allegations).

39. The judge had to look at all the evidence as a whole and it is important to recognise that it was not the appellant's case on appeal that it was not open to her to make findings of sexual abuse against him on the material before her, the appeal being based rather upon the judge's reasoning and analysis in reaching that conclusion and a perceived lack of explanation for aspects of it. During a trial of this sort, the judge is constantly comparing accounts, considering what to make of inconsistencies and downright contradictions, evaluating impressions and so on. In §42 of In re B (a child) (above), Lord Wilson described how, in a slightly different context, the judge develops a "face-to-face, bench-to-witness box, acquaintanceship" with each of the candidates for care of the child. He refers to the judge asking himself throughout their evidence "Is this true?" or "Is this sincere?" That process also occurs in a fact finding hearing of the complexity and length of this one, and it is impossible for the judge to describe in a judgment all of the influences that have led to the ultimate conclusion. Furthermore, it is not uncommon for the evidence to contain contradictions, which cannot be neatly accommodated whichever finding the judge arrives at. They are pointers to where the truth lies, but the judge's conclusion has to be reached on the basis of the entire picture.

40. Pauffley J acknowledged that W and S had had troubled childhoods. Dealing with W, at §52 of her judgment, she referred to Mr Goodwin's submission that W's history suggested that he was capable of being unreliable, vindictive and abusive and to the examples Mr Goodwin relied upon in that respect. The reasons why she did not, however, consider this to be a reliable indicator as to the truth of W's allegations can be found, in particular, in §§49 and 52 of her judgment. There she set out what the impact would have been upon W of his difficult life and of the sort of treatment to which it was alleged the appellant had subjected him. Dealing at §49 with the varying ages put forward by W as to the onset of sexual abuse, the judge said that it seemed to her that there was a:

"very plausible explanation. W has had what he himself has described as a 'shit life'….W's memory as to the precise times and dates when he was abused by [the appellant] are now lost in the mists of time and, given what W has been through, I've little doubt but that he has tried, as he said in evidence, to forget. Nothing turns on the inconsistencies as to dates."

At §52 she said:

"Mr Goodwin submits that W's history suggests he might be unreliable, vindictive and abusive. He cites a number of examples. The very sad reality is that because of the way in which W was molested and maltreated by [the appellant] it is altogether likely that his own behaviour will replicate to a degree what he has himself experienced. How could W be expected to respond normally and appropriately in his relationships with others when his only paternal and relationship role model was [the appellant]? Quite obviously he could not, given the grotesquely distorted attitudes and behaviour demonstrated by [the appellant]."

41. These paragraphs contain an insight into the impact upon a person of abusive treatment such as that alleged here. They demonstrate that the process of evaluating the actions and words of someone who is said to have been subjected to such treatment is far from straightforward. The factors described by the judge would inevitably have been in her mind when considering the position with regard to S as well. Equally, what she said in §51 in connection with W is also of relevance to both sets of allegations:

"Mr Goodwin suggests that if his client's relationship with W had been entirely abusive he would not have travelled regularly to see and willingly stay with him. The tragic reality is that [the appellant] has been able to repeatedly draw his victims back to him. Though it's difficult for an outsider to identify exactly how he achieved it, the overwhelming likelihood is that he did show them kindness, he used the lure of alcohol and he was able to persuade them that they were actually enjoying what was happening. W's comments to social workers about the difficulty in breaking away have all the hallmarks of truthful assertions." 

42. The judge spoke in similar terms in §85, there addressing a suggestion made by Mr Goodwin that the appellant and S had a good relationship and that S enjoyed going out with his father. She said:

"Mr Goodwin submits that those extracts from the evidence contradict the suggestion that [the appellant] was an abusive father. I cannot agree. What they reveal is a man capable of a whole range of manipulative ways. It was not accident that W described him as kind on the one hand but scary and sexually abusive on the other. S's experiences were similar. He enjoyed the attention his father was prepared to give him when it was not either aggressive, violent or sexually abusive." 

43. The fourth ground of appeal ties in with these passages from the judgment concerning the appellant's capacity for manipulation of various kinds, and with the appellant's submissions under ground 1 about the weight that should have been attached to W's retractions, so I will take it next, out of turn. Its focus is S's retractions of his allegations, which it is asserted that the judge gave insufficient weight, dismissing them as false on very little analysis.

44. Mr Goodwin rightly acknowledged that comments made by S to the social worker and to the guardian in late 2015 (see above) were capable of undermining his retractions, but said that the judge did not in fact put these comments into the balance alongside the other evidence when she analysed the retractions at §§86-89 of her judgment (see above). He also submitted that the judge failed to consider the problematic behaviour that S exhibited long before he moved to live with the appellant, various motives which it was suggested existed for S to make his allegations in the first place, and the possibility that he found it difficult to retract all his allegations at once for fear of getting into trouble.

45. I have no doubt at all that the judge was entitled to conclude that, in both W's and S's cases, it was the retractions which were false and the allegations which were true, and that that view was quite sufficiently reasoned.

46. In §§86-89, Pauffley J gave entirely proper consideration to the various influences upon S – a wish to protect his father from imprisonment, a desire to work with his family not against them, a wish to ensure his siblings were safe and not to be forced to go back home himself, his increasing urge to restore himself as a member of his family after R's death, the impact of learning that the plan was for J to be adopted – and their likely effect upon him. There is more on the question of retraction in the section of the judgment dealing with W. For example, at §41, the judge spoke of the appellant's capacity to show to W the kindness that he craved, as well as exploiting him sexually over a period of years. At §43, she said:

"Explaining the dynamics of retraction in this case is straightforward. [The appellant] is quite prepared to accept his victims back into his sphere of influence and control if they retract. For W there was a powerful incentive for claiming that his 2007 allegations were invented, namely the prospect of resuming a brotherly relationship with S for whom he had feelings of real and genuine affection."

And, of course, the judge's consideration of the implications of S's and W's retractions was part and parcel of her consideration of the entirety of the evidence, so must be read together with the rest of the judgment as well. Taking all the material together, the reader is not left in doubt that Pauffley J had well in mind the potential implications of the retractions, scrutinised them carefully, and gave them appropriate weight in her overall determination.  

47. It follows from all of this that grounds 1 and 4 of the grounds of appeal could not succeed. Ground 2 was that the judge failed to give proper weight to the scope for W to have influenced S in the making of his allegations. It was submitted that, as S's older brother, W was in a position to manipulate S, that he had the opportunity to do so as they were in contact before the March 2015 telephone call, and that it was important that S himself said in one of his retraction statements that W talked him into lying. It was also submitted that one of the social workers spoke inappropriately to S about the appellant's alleged conduct with W and that this would have been influential.

48. I will deal with the point about the social worker first. We were taken, in argument, to the social work records for the relevant period. The records were confusing, running backwards through the chronology and with a gap in the text. However, it was not necessary to resolve the issues with them because the answer to this point is contained in the judgment. The judge made a finding (§65), based on the appellant's own evidence, that before the impugned conversation with the social worker, the appellant himself had told S, when S was 13 or 14 years old, that there had been sexual involvement between himself and W, "with [W's] consent but W had later accused ([the appellant]) of forcing him." Understandably, the judge observed in §66 that this must have had a "monumental, destabilising and grossly disturbing impact" on S, who he sees as his brother. She commented that it was "probably a measure of how little understanding [the appellant] has of the sensitivities of others as well as his grossly distorted attitudes to acceptable sexual behaviour that he acted as he did."

49. To return to the appellant's more general point about W's influence on S, the judge evaluated this in the light of the March 2015 telephone call, to which she listened. She set out in §§82 to 85 the matters of key significance that emerged from it, together with her view that, against the background of it, the case for malign influence by W on S fell to the ground, leading her to reject the assertion that the brothers had constructed a detailed series of false allegations between them. This was an assessment Pauffley J was entitled to make of the evidence and was amply explained by her. In my view, therefore, ground 2 is without substance.

50. I turn, finally, to ground 3 concerning S's capacity to fabricate and, in particular, I turn to consider the implications of the intruder allegations. An important part of the context for ground 3 is that, in evaluating S's video recorded interview, the judge remarked upon the mass of detail provided by him about incidents of sexual activity and the host of contextual features. S also gave fine detail about the alleged visits of the intruder, including apparently tying himself to a chair with tape and making a gouge in the wall. This demonstrates, Mr Goodwin submitted, that S is capable of lying in minute detail and that he could have been lying when he described the appellant's conduct towards him.  He submitted that the judge's evaluation of the intruder allegations was flawed and that she should have given them greater weight than she did in the overall picture.

51. The judge recognised that the intruder allegations were "elaborate and contrived". However, she rejected the argument that they provided support for the assertion that S's allegations of abuse were also invented. She concluded that the intruder allegations seemed to have been S's way of testing the reactions of the responsible adults and the agencies in order to see how they would respond to attempts to retract. An important element in this conclusion was the evidence she received from a teacher at S's school as to how S functions. She also took into account the timing of the intruder allegations, relative to some abusive messages sent to S on Facebook by someone who was said to be a friend of the appellant's, to a curious approach to the police by someone who said that S had been heard speaking about making something up to get someone in trouble, and to S's first attempts at retraction.

52. Mr Goodwin complained that the judge's explanation for the intruder allegations was not logical and not open to her. S had said to his foster mother that his father had sent someone to warn him to drop the case, yet, said Mr Goodwin, if S was testing out the consequences of making a retraction exculpating the appellant, he would hardly have inculpated the appellant as being behind the intruder's visit.  Mr Goodwin submitted that there were other explanations, such as that S was saving face in advance of making a full (and genuine) retraction, and the judge should have considered them.

53. The judge was in a difficult position with regard to the intruder allegations. It seems that S was not asked in evidence by anyone about why he made them. No criticism should be made of Mr Goodwin for this. By the time of the hearing before Pauffley J, S was supporting the appellant's account of matters and it served his case that it was by then common ground that the intruder incidents should be treated as not having occurred; there was nothing to be gained for the appellant in exploring things in cross-examination. Similarly, I can see how the local authority could have decided not to pursue the matter, as they were not relying on the incidents. The upshot was, however, that the judge had no assistance from S himself as to why he made the incidents up and she had to make of them what she could. The intruder allegations were, undoubtedly, worthy of careful consideration to see what light they shed on S's other allegations. Making sense of them was not easy but, having said that, they did not point unequivocally in any direction, in terms of the findings that the judge had to make, because the fact that S could lie, and had evidently done so in this colourful fashion, did not necessarily mean that he had also lied about the sexual and physical abuse. In so far as the judge's explanation for the intruder allegations has difficulties, they do not, in my view, damage the foundations of her overall conclusion in any way. Indeed, it might have been difficult to find any entirely coherent explanation for this feature of the history. What matters is that the judge had fully in mind how elaborate and contrived the intruder allegations were and was obviously in no doubt, therefore, that S had the capacity to make up stories with considerable detail. I have said a number of times that the judge had to look at the whole of the evidence and that is of particular importance in this connection. Putting it all together, she was entitled to reach the view that she did about what S had alleged against the appellant. Ground 3 therefore also founders, in my view.

54. It was for these reasons that, despite Mr Goodwin's comprehensive challenge to the judge's findings, I concluded that the appeal should be dismissed.

Lord Justice Hamblen:

55. I agree.

Lord Justice Irwin:

56. I also agree.