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J & K [2006] EWCA Civ 754

Appeal against findings of anal intercourse in care proceedings allowed.

Court of Appeal: Thorpe, Smith and Hedley LLJ (9 May 2006)

Appeal against findings of anal intercourse in care proceedings allowed.

This was an application for permission to appeal following a fact finding hearing in care proceedings. The proceedings were brought following serious allegations made by the mother and the eldest child against the step-father and recorded in contemporaneous statements to the police and others. However the family members then collectively retracted the statements. The fact finding hearing was held over 4 days by His Honour Judge Gee and the findings fell into four separate categories: (1) domestic violence between Mother and Father; (2) anal intercourse between step-father and eldest child; (3) inappropriate sexual boundaries between child and step-father; (4) a specific occasion on which the mother had caught eldest child and her then husband in bed together. An immediate application for permission to appeal was refused.

Neither the local authority nor the guardian sought to uphold the judge's finding of anal intercourse since they argued there would be sufficient in all other findings to enable the to case to proceed to disposal. Both accepted there were deficiencies in the judge's judgment. However they asserted the remainder of the judge's findings were not so vulnerable given there was independent or corroborative evidence.

Therefore the issue before court was whether the judge's more general findings could be salvaged from a judgment which was by common consent defective.

It was proposed that the parties agree a threshold statement which would allow the case to proceed to disposal. Accordingly a threshold document was agreed.

Held, allowing the appeal, that the judgment lacked reasoning and was deficient.

Thorpe LJ considered that the Judge had to explain how he came to positive conclusions against the family members where there had been a retraction of their evidence, in particular by founding himself on available corroboration or independent evidence. However he had not embarked on that exercise. Whilst Thorpe LJ was sympathetic with the burden carried by the Judge he stressed the obligation to present a reasoned judgment which demonstrates why findings have been made and the process of reasoning behind them. Thorpe LJ was critical of the practice of reading into a judgment the threshold findings and then adopting wholesale the written submissions of counsel, as it was a dangerous practice likely to attract criticism.

Permission to appeal allowed. Appeal allowed. The Court annexed to the order the agreed threshold statement.

Cases referred to in the judgment:

Digest prepared by Lynsey Cade-Davies

Read the full text of the judgment here