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D, Re (Children) [2005] EWCA Civ 825

Appeal against findings of direct sexual abuse in care proceedings allowed.

D, Re (Children) [2005] EWCA Civ 825

Court of Appeal: Ward and Clarke LJJ and Sir William Aldous (6 July 2005)

Appeal against findings of direct sexual abuse in care proceedings allowed.

This was a father's appeal in care and adoption proceedings relating to his four children from his marriage to the children's mother. The proceedings at first instance, in September 2004, were heard over 16 days by the judge, and the hearing covered both aspects of care proceedings: first, the fact finding enquiry into whether the care threshold set by section 31 of the Children Act 1989 had been crossed; and, secondly, the so-called disposal aspect of the case concerned with deciding what orders should be made. The fact finding enquiry was given structure by adopting the commendable practice of the local authority providing a 'Schedule of Findings sought by the Local Authority'.

The judge ordered that the children should be taken into care; there was no separate order dealing with the parents' contact. The father appealed, seeking to reverse most of the findings of sexual abuse alleged against him as recited in the schedule to the order; he also sought an order for defined contact with the children once a month.

The court reviewed the catalogue of issues that constituted the nature of the alleged harm, including several instances of sexual harm, physical harm and emotional harm. It also reviewed at length the judge's account of the evidence given at first instance.

Held, allowing the appeal, that it would be unsafe to find the father guilty of direct sexual abuse of any of his children. While the court was reluctant to interfere with the judge's findings unless it was satisfied that she was wrong, it did not consider that the evidence, as presented, supported the conclusions reached.

The court also commented on the growing tendency, in family cases, for no other order to be drawn after the facts had been found than the giving of directions as to further evidence etc for the disposal of the case. This was not good enough, because it did not provide any order against which the aggrieved party could appeal. It would be better if, when the court directed a preliminary fact finding hearing, it adopted the standard procedure in civil justice by setting out the preliminary issues which were to be determined. A schedule of the kind prepared in this case could then be framed as questions for the judge to answer, an order could be drawn accordingly, and there would then be a peg upon which the appeal could be heard.

Clarke LJ expressed a minority view that, as to the allegations of direct sexual abuse by the father, the judge had correctly directed herself by reference to Re H (Minors) (Sexual Abuse: Standard of Proof) [1996] AC 563. The judge saw the witnesses and had a much better opportunity to reach conclusions of fact. The court should be very careful before making its own findings of fact in disagreement with those of the judge. Accordingly, he considered that the judge was entitled to hold that indecent touching was proved, although the findings of sexual intercourse and oral sex could not stand.

Comment by Tacey Cronin, Albion Chambers

The Court of Appeal is very loath to interfere with the findings of fact made by the judge at first instance – he or she sees the witnesses and must be best placed to assess their credibility, and so many cases come down to what the Judge finds proved that a Court which is not empowered to rehear a case can do little to interfere. However, in this instance, the court was prepared to set aside serious findings for three striking reasons: there was no itemised consideration of the allegations, but a finding that abuse was proved; there was an inconsistency specific to the facts of the case but which may have come about because the Judge was unwilling to find that one of the children was a perpetrator; and thirdly, she found that the police interviews had no evidential value – they were of no use to prove abuse, but they had evidential value overall because the children were not able to describe events which the local authority sought to prove they had experienced. The Court proceeded on the basis of the facts which were proved and made orders accordingly. It is noteworthy that of five judges (first instance, permission to appeal and the three appeal judges) there was considerable difference of opinion: this might be read as encouragement to would be appellants!

There is a second part of the judgment which has importance for practitioners: where findings of fact for threshold purposes and a final order are made in the same hearing, it will be enough to make the care order and allow the judgment to stand as a record of the findings made, but where there is a "split" hearing, or where welfare decisions have to be made later it is essential that a clear record of the findings made is accessible, and this will often be best done as a schedule of findings attached to the order.

Read the full text of the judgment here