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

This was an appeal against findings made within private law proceedings

The findings were that the father had sexually abused his daughter, 'T', when she was three years old.

There were two judgments relevant to this appeal. The first in January 2017 when the judge found that the sexual abuse allegations were not established on the balance of probabilities and thus sexual abuse had not occurred. The second judgment delivered in July 2018, which concluded that sexual abuse had happened. The change from one conclusion to the other lay at the heart of this appeal. The appeal was allowed and the matter was remitted for rehearing. 

T was born June 2011. On 15 November 2015 and 13 December 2015, the mother alleged that T had returned home after spending time with her father with a red and swollen genital area. The child was examined by a GP in December 2015 and no visible signs of abuse were found. The child made no allegations.

In January 2016, the child was spoken to by a social worker on two occasions. On neither occasion did the child make any allegations. The child did say that the father sometimes washed her after toileting. An assessment completed in March 2016 concluded that there was no evidence of sexual abuse.

In March 2016, the mother said that the father washed the child with his hands in the bath. She directly asked the child if it hurt when the father touched her and whether he had digitally penetrated her. The child is alleged to have nodded. The mother told the child to be "a really brave strong girl" and to talk to her education and support learning assistant about "what daddy has been doing to you". The child was spoken to by the education and support learning assistant twice in April 2016 and on neither occasion made an allegation A police review in May 2016 concluded that the child had given negative disclosure to professionals and the mother had convinced herself that T had been abused.

In July 2016, the child was again spoken to by a social worker. The child was positive about having contact with her father and made no allegations. The first fact-finding hearing went ahead over three days and judgment was reserved.

In August 2016, the mother's solicitors wrote to the court stating that the child had made further significant and detailed disclosures to the mother and requested that the evidence be reopened. The disclosures were that the father had hurt her when washing her, had digitally penetrated her and that he had told the child not to tell the mother. The police and a social worker visit the child but the child makes no allegations against the father. In September 2016, the mother finds the child exhibiting over-sexualised behaviour in front of a schoolfriend.

The judge heard further evidence from each parent in December 2016. In January 2017, the first judgment was handed down. This found that the sexual abuse allegations were not established on the balance of probabilities and thus sexual abuse had not occurred. In reaching his conclusion the judge noted the lack of corroborating medical evidence, that the child had failed to make allegations to police or social workers, the father's consistent and emphatic denials that he could not find were false, the role that the mother had played in eliciting information from the child and the probability that the child had responded to mother's anxieties about and disapproval of the father.

In March 2017, the Cedar project to which the mother had been referred for support raised the possibility of contact between the child and her father moving to unsupervised contact. The mother responded badly to this suggestion. In April 2017 a contact centre worker asked the child how she would feel about contact taking place at the father's home. The child provided a written response which included as a reason for being unsure that she didn't like it when her father washed her bottom. The contact centre worker offered the child a doll on which to demonstrate what she meant by not liking her father washing her. The child demonstrated on the doll washing of the genitals and bottom. During a second meeting with the contact centre worker on 2 May 2017 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.

An ABE interview took place on 16 May 2017. This was preceded by a rapport visit on 12 May during which the child wrote down notes about her experience. During the ABE interview the child did not give verbal answers but wrote down matters on paper. During the interview the child alleged that the father had placed his finger inside her bottom in London and that this had happened 40 times.

In October 2017, HHJ Meston QC was invited to consider re-opening the matter on the basis of the allegations that the child had made at the contact centre and in her ABE interview. A re-hearing took place over five days in January 2018. The court heard evidence from the parties, the police and the contact centre worker. The child participated in the rehearing by her Children's Guardian who adopted a neutral stance but submitted observations and the conclusion of the trial to assist the court.

The decision of the court subject to the appeal was handed down in July 2018. Reversing the previous decision, the court made findings that on at least two occasions (Nov and Dec 2015) the father had touched T around the area of her bottom; that he had on one or more occasions digitally penetrated T's bottom or genital area; and that he had told the child not to speak of the abuse. The judge found the touching / penetration to have been inappropriate and sexually motivated. Even if not sexually motivated, washing T in that area was inappropriate and caused her physical, psychological and emotional harm. The judge refused to grant the father permission to appeal.

The father made a renewed application for permission to appeal in August 2018. This was granted by Mrs Justice Knowles on all grounds and without conditions. The appeal hearing was listed in January 2019 with a time estimate of one day. On review, this time estimate was considered too short and the matter was adjourned to 14 – 15 May 2019.

Legal Analysis

The father's appeal was made on three substantive grounds, namely:

1. That the judge had failed to properly apply relevant legal principles to the 2nd fact-finding exercise and as a result had adopted an approach that was improper and flawed.

2. The judge had failed to analyse the allegations made following the first judgment in the light of the totality of the evidence and had placed improper weight on the allegations made by the child her ABE interview in May 2017.

3. The judge's approach to the credibility of the parties was flawed and inconsistent with his previous findings.

The judge considered the decision at the conclusion of the 2nd fact-finding hearing specifically with reference to the decided cases of 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).

The judge noted that while the judgment following the first fact-finding, the judge had detailed the approach set out in Re E with respect to evaluating sexual abuse allegations by young children, he did not do so in his 2nd judgment. The judge considered the extent to which the judge had applied the 8 factors identified by Scott-Baker J in Re E which were considered to be relevant to the determination of the weight that should be given to a child's account. In his judgment, Williams J notes that what clearly emerges from the authorities is that 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. He notes further that 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.

It was found that while a very thorough review of the evidence was set out in the first judgment. In the second judgment, his review was focused around the allegations made by the child in May 2017. The review in the second judgment was considered to be brief in light of the complexity of the case. The judge did not identify in his second judgment the great care that needs to be taken when determining the reliability of allegations by young children despite this being central to this second determination of the facts.

It was held that the second judgment had failed to demonstrate that a comprehensive review of the evidential trail from November 2015 to May 2017, showing the process from which the child moved from making no allegations and showing no unhappiness to the contrary situation, had been carried out. The second judgment did not make clear that the allegations in May 2017 were considered in light of the factual backdrop of 2015/2016. The allegations in 2017 were not clearly subjected to real detailed scrutiny. Various points which challenged the reliability of the child's evidence were not properly dealt with, including the context in which the allegations were made. This context included the 'innocent' interview by the contact centre worker which was not ABE compliant, the use of the doll, and the leading questions 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 alleged incidents 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, and the consistency point was not addressed. The lack of corroborating evidence did not get a mention albeit is was one of the features specifically addressed in the first judgment. The absence of express consideration of the above factors in this complex case was a considerable flaw. Williams J held that the judgment 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.

The appeal was allowed on grounds 1 and 2. In respect of ground 3, it was held that the judge's assessment of credibility was not flawed or inconsistent with the findings previously made.

Other matters

In his judgment Mr Justice Williams made the following points of note to lawyers dealing with these types of proceedings.

First, he noted the delay that had "plagued" these proceedings and their resolution. He described this delay as "staggering". 

Second, His Lordship noted that the hearing in March 2019 had been set down for two days to allow one day for judicial reading. When he was sent the essential reading list it amounted to 30+ hours of reading plus the ABE interview. He reminded advocates that 'essential reading list' should point the court to what is essential, particularly in respect of an appeal hearing.

Third, he considered whether the overloading of the Scott Schedules in the second fact-finding had contributed to the issues that had arisen which were the subject of the appeal. He stated that it was imperative n fact-finding exercises that lawyers and judges case managing identify the central facts on which the court is required to rule. This ought to be done at FHDRA stage. Where Scott Schedules are imprecise or overloaded with a mixture of facts and evidence they can become a distraction and risk diverging the courts attention away from the central facts.

Finally, His Lordship noted that the child by her Children's Guardian had not participated in the appeal hearing. The judge stated that he failed to see why it had been decided that the child would not play a role in a hearing of such importance to her future.

Summary by Rachel Cooper, barrister, Coram Chambers

For the full judgment click here