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Re B and Others (Children) [2006] EWCA Civ 773

Father’s appeal against findings of fact in care proceedings dismissed, but mother’s appeal allowed.

Court of Appeal: Latham, Carnwath and Hughes LJJ (25 May 2006)

Father's appeal against findings of fact in care proceedings dismissed, but mother's appeal allowed.

This was an appeal by a father and a mother against findings of fact made by the judge in care proceedings. The allegation against the father was that he had interfered sexually with his own daughter, aged nearly six, and with another girl who was a friend and neighbour of hers, about a year younger. As against the mother, the allegation was that she knew of the father's actions and failed to protect her daughter.

At the fact-finding hearing which started in August 2005, the judge considered evidence that fell into the following broad categories: physical findings on medical examination of the two girls; evidence from doctors and the social worker; and evidence from the children themselves. Both parents accepted that, in the case of their daughter's friend, the right conclusion was that somebody had interfered with her sexually; while they did not formally concede the same in relation to their daughter, they did not seek to challenge the findings based on the first two categories of evidence.

The focus of both parents' appeals was the judge's approach to the evidence of what the children had said: they contended that the sources were so unreliable that the judge was plainly wrong to draw from them any conclusions of sexual abuse, or at least any conclusions as to who had done it.

In relation to accounts given by the friend's mother and a friend of hers at the hearing, of conversations with the children, the father invited the court to find that the judge was plainly wrong to have found that the adults were honest as to the substance of the conversation, even though they were inaccurate about when the things that they remembered were said. The evidence given by the children to the police officer was also challenged, as was the way in which that evidence had been obtained.

Held, dismissing the father's appeal but allowing the mother's appeal, that:

(1) in relation to the father's first challenge, it was not possible to say that the judge was plainly wrong to find as he did, as it was only very rarely appropriate for an appeal court to make such a finding on a paper examination of evidence given in the court below over a period of days and assessed as a whole by a trial judge; as to the second challenge, the court accepted that the children's evidence obtained by the police officer did not comply with the nationally agreed guidelines entitled 'Achieving Best Evidence', but the judge was fully aware of the deficiencies of this evidence, and for him to have concluded that he must disregard the evidence altogether would have been to invest the guidelines with the status of the law of evidence; and

(2) as to the mother's appeal, the only evidence that she knew about what the father was doing, and thus failed to protect her daughter, came from a short passage in the interview of the child by the police officer; given the flawed manner in which that interview was conducted, it was quite unsafe to rely on it as alone justifying the serious conclusion that a mother would watch her daughter's father interfere with the child, and do no more than tell him to stop; accordingly, while the judge did not fall into error in considering the evidence of this interview, he did in finding it sufficient, on its own, to warrant the finding against the mother.

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