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C (Children) [2008] EWCA Civ 1331

Appeal against findings of fact in care proceedings on the grounds that the trial judge had allowed his findings to be tainted by evidence from allegations that had been dropped by the local authority. Appeal dismissed.

There had originally been allegations from three children [S,D & L] of sexual abuse perpetrated by one of the respondents. Before the hearing the allegations from [S & D] were dropped, despite the efforts of the local authority to gain further evidence from [D]. The trial judge then made a finding that the allegations from the remaining child [L] were “60 to 65% proved in my judgment if it was [L] alone but it is about 75% with [D] in the equation.” and also that the allegations of [D] had been part of his considerations.

Counsel for the appellant appealed on the ground that the judge’s approach had been tainted as the he had been wrong to make a finding regarding allegations that were not part of the local authority’s case. Thorpe LJ rejected that submission as the judicial error had not tainted the primary finding. Even though certain passages of the judgment could not be supported, the judge’s assertions in later paragraphs corrected the error.

Case No: B4/2008/1302
Neutral Citation Number: [2008] EWCA Civ 1331
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: Thursday, 2nd October 2008


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(DAR Transcript of
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Ms Bacon (instructed by Messrs Kundert & Co) appeared on behalf of the Appellant.

Mr Payne (instructed by Coventry County Council) appeared on behalf of the Second Respondent.
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Judgment (As Approved by the Court)

Crown Copyright©

Lord Justice Thorpe:
1. In public law proceedings in the Coventry County Court that came for a fact-finding hearing before HHJ Hooper QC on 14 May 2008, the local authority sought findings in relation to inappropriate and abusive sexual conduct by the second respondent in relation to children.  The principal case related to his conduct with a little girl called L but there were also issues relating to his behaviour with a girl called S and a third girl called D.  Now, as the litigation developed S went from the picture.  There were no reports of any inappropriate sexual behaviour towards her other than an allegation through her own mother.  In relation to D there was more, since there had been a police investigation which had not proceeded very far.  Accordingly at a pre trial review on 16 April 2008 the local authority withdrew any allegation against the second respondent in relation to S.  They were not at that stage prepared to make a similar concession in relation to D, and accordingly it was agreed that, should the local authority fail to file evidence from D by 30 April, and to make her available for cross examination, the local authority would not seek accept that the matter would be withdrawn from the investigation in the same way as the S issue had been withdrawn.

2. That position found expression in the order made on that day by HHJ Bellamy.  The local authority made every effort to obtain evidence from D but without success, and accordingly their case in relation to possible sexual abuse of D fell on the deadline date of 30 April.  When the case in relation to L opened on the first day it was made plain that that was the sole finding that the local authority sought against the second respondent.  We have a transcript of closing submissions, judgment and discussion following judgment.  We do not have a transcript of what passed on the second day, but it is agreed between Mr Payne for the local authority and Ms Bacon for the second respondent that on the second day it was made perfectly plain to the judge that there was a single issue for his determination. 

3. There is in the submission of Mr Payne for the local authority, who went first in closing, one passage which encouraged the judge to look at his task more widely, because Mr Payne said in his last flourish:

“I can make no other comment than this.  To have one allegation made against any man in this country is unlikely.  To have three is something beyond that.  Indeed it is in my submission an indication of propensity if nothing else and there are three allegations from girls broadly the same age of a similar nature, almost identical modus operandi, to use that term in respect of [D] and [S].”

4. Mr Garside, who then made his submissions on behalf of the mother, made it quite plain to the judge that he should be careful before accepting allegations in relation to D and S as in any way corroborative of the allegation in relation to L.  He said:

“They were never more than allegations.  Perhaps in a criminal sphere they were never more than suspicions.  They were acts which [the second respondent] was suspected of having undertaken but they were never proven and he has never had an opportunity to cross examine.”

5. Ms Bacon, who followed for the second respondent, did not challenge or criticise the passage from Mr Payne which I have cited, and she has said this morning candidly that she now regrets not having done so.  Finally, for the guardian, Mr Lewis was clear in saying that the judge should be very cautious with regard to allegations in relation to D and S.  He said that they were only relevant in relation to the second respondent’s credibility, because in dealing with those allegations in police interview he had said things that were plainly either contradictory or inconsistent. 

6. So we come to the judgment; and the judge, in coming to his conclusions in paragraphs 43 and 44 effectively said that he regarded the case in relation to S and D as corroborative of the case in relation to L.  Having referred to the allegations in relation to S and D he said:

“So … I conclude that [the second respondent] has a propensity or tendency or inclination to commit acts of sexual touching against girls of about between ages of 9 and 14 whom he has targeted, and thus to commit against [D] the acts which she alleged.  I therefore decide that [the second respondent] committed the acts against [L] that she alleges.”

7. He then in paragraphs 45 and 46 expressed his conclusions in relation to the key issue that was before him for decision, namely whether the second respondent had abused L; and in approaching that he considered very carefully the weight and worth of the evidence of L and explained in some detail why he found her an entirely credible witness.  He included this:

“I made specific findings about particular inconsistencies in her evidence, but I have no ultimate hesitation in concluding to a very high degree of proof that the essence of the allegations that she has made about [the second respondent’s] actions towards her between the ages of about 8 and about 15 are broadly true.  I believe she has been telling the truth and that there is every good reason, not undermined by any significant consideration, why she has not made these disclosures before.”

8. Now, in the discussion following judgment Mr Payne, no doubt apprehensive as to the judge’s expression in paragraphs 43 and 44, asked for further words of judgment.  He asked the question: “Did your honour use the corroboration evidence in effect of D to form your honour’s assessment of the credibility of L, and did the credibility of L fall separately from the question of D?”  The judge answered that, saying that D had been a relevant part of his consideration.  He continued:

“I think that without [D] I would not have been able to be as sure as I was, therefore it is an entirely hypothetical question I need to ask myself and in case this matter goes further it is important that at this moment I submit myself to a degree of self-invigilation which the task of fact-finding requires, and I believe that I would have found that, on something in excess of a balance of probabilities, [L’s] evidence was truthful in itself for all reasons I have given by way of excluding potential undermining influences.”

Mr Payne expressed his gratitude and the judge continued:

“There must be absolute transparency about these things.  It is very difficult to put in terms of percentages and probably misleading, but it would be at least 60 to 65% proved in my judgment if it was [L] alone but it is about 75% with [D] in the equation.”

9. Ms Bacon at the conclusion of the discussion sought permission to appeal, which was refused.  Accordingly an application was made to this court which was granted by my Lord, Wilson LJ, on 3 July.  The response from the local authority, Mr Payne in particular, at once conceded the complaint that the judge should never have made a finding of propensity and a finding that the second respondent had behaved inappropriately with D when that was no part of the local authority’s case and when the local authority had made it plain that they were seeking a single finding.  There was left, therefore, only the issue of whether the appellant could succeed in unpicking the primary finding on the ground that the judge’s approach was throughout so tainted as to risk injustice.

10. Now Ms Bacon had a difficult task which she approached with considerable skill, and she has made every point that could possibly be made on behalf of the second appellant and they are points which are well supported by references to the transcript of submissions and judgment.  But in the end it seems to me, taking the judgment and the discussion following judgment together, that it is completely plain that the judicial error, has not in fact tainted the primary finding.  The judge undoubtedly left the straight and narrow, possibly encouraged so to do by Mr Payne, and what he said in paragraphs 43 and 44 cannot possibly be supported.  But that is sufficiently corrected by the striking out of any finding of propensity.  His findings in paragraphs 45 and 46 are extremely clear and strong.  It is apparent from those paragraphs that he was considering the evidence of L in isolation, and particularly focusing on her credibility.  We know from the exchange beyond judgment that his confidence in her was well above the balance of probabilities that is to be applied in a family case of this sort.

11. So it would in my judgment be both unprincipled and unhelpful to accept Ms Bacon’s submission and remit the case.  I do understand that the consequence of dismissing this appeal is very serious for the second respondent, but on the other side of that same coin is the importance of protecting children from the risk of abuse.  For all those reasons I would dismiss this appeal.

Lord Justice Wilson:
12. I agree.  I would allow the appeal to the extent indicated by my Lord and dismiss the balance of it.

Lord Justice Lawrence Collins:
13. I also agree.

Order: Appeal dismissed