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Re C (A Child) [2005] EWCA Civ 1330

This case concerns a father’s appeal from findings of fact that were made against him in the course of his application for contact with his son. The allegations concerned the father’s inappropriate sexual behaviour towards his son. This case is highly unusual in that it did not involve a determination of the credibility of either the mother or the father but an issue of fact between the father and two adult witnesses, the grandmother of the child and a friend of the mother.

Re C (A Child) [2005] EWCA Civ 1330

Court of Appeal: Thorpe LJ, Dyson LJ, Wall LJ (11 October 2005)

Summary
This case concerns a father's appeal from findings of fact that were made against him in the course of his application for contact with his son, H, born 23rd June 2000. The allegations concerned the father's inappropriate sexual behaviour towards H. This case is highly unusual in that it did not involve a determination of the credibility of either the mother or the father but an issue of fact between the father and two adult witnesses, the grandmother of H and a friend of the mother. The appeal was dismissed on the grounds that the judge's findings were perfectly legitimate on his analysis of the evidence. The affect of the findings on contact was also referred to as both Wall LJ and Thorpe LJ concluded that it would be tragic if these events led to the cessation of contact.

Background
Thorpe LJ described this case, as heard by HHJ Meston sitting in the Bournemouth County Court, as a 'particularly difficult case to try'. Since the parties' separation a little over a year after H's birth, contact had proceeded satisfactorily by agreement. However, in early 2004 H reported to his mother that he had seen his father's erect penis and, in his own words, the grown penis 'popped'.

The mother immediately involved the Local Authority who recommended that future contact be supervised. Very shortly after this the Mother was told by both a long standing friend and her own mother that they had each been subjected to sexual harassment by the father. The maternal grandmother was able to describe an incident when the father (her son-in-law) had masturbated when visiting her flat. These developments were only made known to the father during the course of the county court proceedings when statements were filed.

At the county court hearing expert evidence was heard from a specialist registrar in child psychiatry, who was strongly supportive of the mother's convictions that H had been abused by his father.

Whilst Mr Cobb QC was successful in applying for an adjournment and instructing a further expert on behalf of the father, findings were made that H did see his father's erect penis, the father did masturbate in H's presence and H did in some way touch his father's penis.

Permission to appeal was refused by the trial judge but approved after an oral hearing without notice.

The appeal was argued on the following grounds:

Judgment
Wall LJ stated that these cases are extraordinarily difficult to try and the evidence is rarely firm. Further, what the child says and is reported to have said had to be assessed, the credibility of the person to whom the child makes the observations has also to be taken into account and great care has to be taken by experts brought into the case to conduct an inquiry which is unassailable. However, in this case the conflict is between the father and the two adult witnesses. The allegations they made were highly relevant because the behaviour they alleged was relevant to what happened in relation to H. Consequently, it did not depend on the credibility of the mother but upon the credibility of the grandmother and friend. This was the critical feature of the case.

Finally, both Thorpe LJ and Wall LJ raised the issue of H's continuing relationship with his father. Whilst the father will need to undergo some form of therapy, the importance to H of growing up with happy experiences of a father who loves him and a father whom he loves, should figure high in the judge's agenda.

Read the full text of the judgment here