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H (A Child) [2009] EWCA Civ 334

Application by step-father for permission to appeal findings of fact in care proceedings relating to allegations of sexual abuse on his step-daughter. Applications refused.

The child and her mother had moved to Birmingham after the child’s natural parents separated in 2003. It was alleged by the child that when her mother was out buying a wedding dress in March 2007 her prospective step-father had touched her in a sexual manner. She then repeated similar allegations at school, which were investigated, and the adults separated but still married in August 2007 and the child was removed in September 2007. In the subsequent proceedings the child’s evidence became more serious and a third recorded interview in early 2008, instigated by the child, contained the most serious allegations. The trial judge had found the evidence convincing but also directed himself to consider the circumstances.

In this application counsel for the father submitted that this was an impermissible judicial approach in that the judge should only express conclusions once the circumstances had been considered. He also claimed that the third interview did not merit the weight placed on it by the judge as the child may have embroidered the evidence. Thorpe LJ rejects those submissions stating that the judge

“was perfectly entitled to place particular emphasis on his analysis of the child’s developing disclosure and then afterwards to look at the surrounding circumstances and the context to guard against the fact that there might be, within those surroundings, elements that required him to re evaluate the veracity or the reliability of the child’s complaints.”


Case No: B4/2009/0076
Neutral Citation Number: [2009] EWCA Civ 334
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: Tuesday, 10th March 2009


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(DAR Transcript of
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Mr R Tolson QC, Ms J Williamson (F), Mr S Roberts (M) (instructed by Messrs Porter Dodson) appeared on behalf of the Appellant.

Mr C Sharp QC & Ms C Elford (instructed by North Somerset Council, Messrs Wards & Messrs Powells) appeared on behalf of the Respondent.

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(As approved by the Court)

Crown Copyright©

Lord Justice Thorpe:
1. The child who is the subject of these public law proceedings, C, was born on 3 November 1999, so she is now nine years of age.  Her early life was spent in Bridgwater with her parents.  However, they separated in 2003 and, at a date which is unascertained, her mother began cohabitation with JM.  The family moved to Taunton and then in due course to Birmingham.  On 10 March 2007 C’s mother attended for the fitting of a wedding dress.  For a period C was in the care of her step father, JM.  On the following day, 11 March, she told her mother that she had been touched by her step father in a sexual way on the previous day, he taking advantage of the opportunity presented by the mother’s absence.  Not surprisingly, that created a crisis in the family.  The mother immediately telephoned the step father at work.  He came home at once, and a fierce quarrel developed between the two adults.  However, at that stage the event did not go beyond the family.

2. Later in the same month C at school told another girl that she had had sex with her dad and she had written the word “sex” on the classroom board.  Not surprisingly, both the form teacher and the head teacher were involved.  Mother was called to school, but during the course of meetings with the staff C said no more.

3. However, this was obviously serious and it led to the separation of the family, mother and C leaving to return to Somerset.  The police were involved and a memorandum interview was conducted, during the course of which C said nothing beyond that she had been hit by her step father.  The possibility of physical abuse was not then further investigated.  The next stage in the unfolding story came with C’s examination by Dr Newbury, a consultant paediatrician, at the Taunton Hospital.  Dr Newbury took a history from C, during the course of which she made worrying disclosures and a drawing which clearly was indicative of some inappropriate sexual experience.  The examination conducted by Dr Newbury led her to the firm conclusion that, although there was no evidence of damage to the hymen, there was clear evidence or a linear scar on the margin of C’s anus.  Mother and child moved to a women’s refuge, and thereafter there was a continuing history of evolving disclosure, both in the context of statements and behaviour either at the refuge or in care, after C was removed in September 2007 to foster care.  That removal was no doubt compelled by the fact that in August a marriage was celebrated between C’s mother and the applicant.  So, inevitably, public law proceedings were initiated. 

4. As a result of the many things that C had revealed to professionals and to others, the local authority founded their case not only on sexual abuse of C but also of physical abuse and of emotional abuse.  The case was primarily brought against JM and extended beyond abuse of C to domestic violence against her mother.  In relation to C’s mother, the local authority also launched a positive case, asserting that she had not the capacity to protect this or any other child from the risks of abuse at the hands of some other adult in the household.  As is commonplace, case management within the Bristol court led to a direction for a preliminary issue trial to establish precisely what had happened in the past.  The case was technically within the High Court Family Division and was allocated to a very experienced Section 9 judge, HHJ Rutherford.  The case came for trial in October 2008.  The judge heard seven days of oral evidence and submissions, culminating on 22 October.  The case was clearly regarded as important.  The litigation team for JM had introduced an international paediatric expert from the United States named Dr Heger, who was to give evidence via video conference.

5. Dr Heger was advanced, to use the language of Mr Tolson Q.C., as a world expert, suggesting that Dr Newbury was, by comparison, a provincial minnow.  The judge had to form a view as to the value of their respective expert opinions. 

6. The case can be conveniently divided into three parts.  Obviously the major part was whether or not C had been the victim of sexual abuse.  A lesser part was to determine whether she had been the victim of physical abuse, and perhaps a lesser part still was to determine whether the mother was herself a victim and whether, overall, the mother had the strength to protect a child, given that she herself suffered from some difficulties.  The judge had the advantage of a report from a forensic psychologist who made an assessment of the extent of the mother’s difficulties and her capacity to recall in short-term memory and longer term memory and a general assessment of the extent of her disability.  The judge had oral evidence from all who had a significant contribution to make.  Of course, the most important single historian was C herself.  Clearly he was not to hear from her directly, but he did have the advantage of her video interviews, the first of which I have already described, the second of which was immaterial because C simply refused to participate in the process, and the third of which was of the greatest significance.

7. I have already recorded the disclosure had commenced on 11 March 2007. The first interview was conducted on 2 April 2007; the second in September 2007, and it was not until 15 January 2008 that the third interview was recorded.  The transcript of that interview runs to some 30 pages.  The video runs for some 42 minutes.  The child protection services had not initiated the third interview.  It was C herself who said that she wished to talk again to the lady police officer.  That was a context that the judge was to regard of considerable significance.  During the course of the third interview C gave very detailed answers to a range of questions properly put to her by the officer conducting the interview, both in relation to adult sexuality and in relation to chastisement.  The judge, having heard this considerable volume of oral evidence, took time to consider his judgment and handed down on 29 October.  Following the hand-down, there was an indication from counsel for the mother that he intended to apply to the judge for the amplification of the judgment in accordance with the practice suggested in the family appeal of T v T.

8. The judge complied with that request at a further hearing on 3 December, and during the course of this hearing today neither Mr Tolson QC for JM nor Mr Roberts for the mother has made any reference to that amplification procedure, so I have put it to one side.  Mr Tolson’s principal attack is upon the third interview.  He says, with force, that this was regarded by the professionals as a relatively minor key case in which a child had been perhaps exposed to one incident of indecent touching.  However, the story had grown like topsy, so that by the following January, with the third interview, there were florid accounts of penetrative sexual intercourse on numerous occasions over an extended period of time.  Mr Tolson would endeavour to classify this as a case in which a child, with nothing of great materiality to disclose at the outset, had systematically expanded and embroidered, possibly, in search of adult approval or reward.  He accepts candidly that if the third interview taken in isolation merits the approbation that it received from the judge then his application to this court is in ruins.  So I take that as the overarching foundation for Mr Tolson’s submission.  However, I wish to record that Mr Tolson has submitted to the court a very full skeleton argument, running to some 15 pages, in which he expands over some ten grounds of appeal.

9. I do not intend to deal with those grounds at length or individually.  It is, I think, enough to concentrate on the structure of the judgment that has attracted much criticism from Mr Tolson.  He says that the judge has fallen into plain error in recording and assessing the history of C’s developing allegations through the three videoed interviews and then pronouncing himself convinced, as he does in paragraph 41 when he says:

“That said, having watched [C’s] video interviews I found them convincing supported as they were, in part, by her own drawings.  For example the drawing of the computer to illustrate her allegation that [JM] showed her pornographic pictures seems to me very persuasive.  I also note the comment of the foster carer about “white stuff” coming out of [JM’s] penis which seems to me a convincing corroborative detail.”

The judge then goes on to say in the following paragraph:

“However before making any findings it is right that I should look at all the surrounding circumstance to see what if any support these give to the allegations.”

10. Mr Tolson says that that is an impermissible judicial approach.  He says that it was open to the judge first to record the child’s spoken words and her video performances, but before expressing any conclusion on them he had to first bring in all the surrounding circumstances, including the medical findings, and then bring everything to one grand conclusion.  I unhesitatingly would reject that submission.  I think the judge was perfectly entitled to place particular emphasis on his analysis of the child’s developing disclosure and then afterwards to look at the surrounding circumstances and the context to guard against the fact that there might be, within those surroundings, elements that required him to re evaluate the veracity or the reliability of the child’s complaints.  Mr Tolson has a sub-point, in that he says that the judge had expressed his conviction upon the interviews by instancing two features that are not to be found in the interviews themselves but within the surrounding circumstances.  That is an accurate summary of the effect of paragraph 41, which I have already cited, but it seems to me a completely immaterial feature.  The judge was perfectly entitled to have regard to aspects of the wider evidence that helped him conclude that the video interviews were convincing.

11. Another criticism which has been strongly advanced by Mr Tolson relates to the earlier passages of judgment in which the judge weighs up the force of the third interview.  Mr Tolson says, “Look at my written submission below, in which I warned the judge of all the frailties in this third interview -- all the indications that this was a child fantasising; alternatively a child whose words have been contaminated by adult interference.”  That criticism seems to me to be plainly answered by paragraphs 27 and 28 of the judgment.  Paragraph 27 repeats almost verbatim the final submission to be found in paragraph 4 of the written submission.  The judge then goes on to say:

“These are all matters for me to take into account, as are the other matters contained in paragraph seven of the intervener’s closing submissions; and I do not lose sight of any of them, nor do I overlook the fact that children can be unreliable, suggestible and anxious to please.”

Now Mr Tolson says, “Well, that is not good enough.  The judge should have embarked upon a detailed discussion with the points that I have made in paragraph 7.”  Again, I unhesitatingly reject this submission.  It is not incumbent on the judge to deal with each and every submission advanced by counsel, however ingenious they may be.  It is his duty to bear them in mind, to ensure that they are not overlooked; and it is plain from paragraph 28 that the judge observed that duty.

12. Mr Tolson is also critical of the manner in which the judge has dealt with the medical evidence.  He says that this is an instance of a judge losing the essential obligation to be even-handed.  He should have had at the forefront of his judgment the fact that C presents perfectly normal genitalia and that that presentation is completely inconsistent with her account of frequent and regular penile penetration in full intercourse.  That submission again founders on the judge’s very clear analysis of the medical evidence.  Having recorded Dr Newbury’s finding after two consultations, he continues in paragraph 46 to say that there was only a limited area of dispute between the two paediatricians.  He records the common ground between them, three important points, including this:

“The fact that there are no findings which are diagnostic of sex abuse does not mean that it has not happened.  This they were both keen to stress.  Many cases of abuse result in no medical findings at all.”

13. He then went on to express the two differences between them and to record his conclusion that, on the balance of probabilities, Dr Newbury did see an anal scar, particularly at the first consultation -- a point that Dr Heger was putting in issue.  So the judge then rounded that by saying in paragraph 49:

“Where then does the medical evidence leave me?  I am satisfied that the condition of the hymen rules out full penile penetration but not, of course, sexual activity falling short of that.”

Mr Tolson has said that the judge never should have found evidence of an anal tear. That is a criticism which seems to me completely void, given that the judge concluded in paragraph 52:

“Notwithstanding the evidence that I have yet to refer to, I can say at this point that while the scar raises suspicion I do not feel that the evidence is such as to enable me to say that [JM] has anally abused [C].”

14. The effect of that paragraph is to relegate the question of whether or not there was an anal scar to the very periphery of the case.  So, for all those reasons, although Mr Tolson has advocated the application with his usual force and persuasion, it seems to me he attempts to make bricks without straw.  I do not see any foundation in the criticisms of the judge’s positive findings of sexual abuse and that obviously leaves his case in pieces.

15. However, in fairness to Mr Tolson, it seemed to me that his strongest point came under the subsidiary head, namely the judge’s finding that C had been physically abused, hit about by JM.  I accept Mr Tolson’s submission -- and indeed Mr Sharpe Q.C. does not demur -- that really the only evidence to support that proposition comes from C herself.  I accept Mr Tolson’s point that there is no corroborative evidence and, in relation to a blow to the face which C said left her with bruising and redness, it might well have been thought that there would at least have been some remark and investigation within the school community.  However, all that said, it was an issue of fact for the judge.  He has reached the conclusion that he did and I see no principle or basis upon which we could allow that submission to go further.

16. One thing that it is important to emphasise is that, in weighing a case of this sort, the judge has to give particular attention not only to the case advanced by the local authority but also to the response of the family and particularly the family member who stands accused of abuse.

17. It is of the greatest importance that judges in these cases should make very clear findings as to the credibility of the adult accused and the confidence that the judge can repose in the denials.  Here the judge was very plain.  In relation to the first incident, the incident of 10 March, the judge records JM’s response, his explanation, and he rejects it.  That is a rejection of his evidence, and it is complemented by an adoption of the local authority’s analysis of his personality and the dangers that he presents to vulnerable adults and children.  Mr Tolson says that the judge was merciless in his rejection of the intervener’s case.

18. In my opinion it is not only apt, it is essential that judges should be very plain in these cases where the evidence justifies it and where they have a very clear sight of the merits of the case.

19. I would only conclude by paying tribute to the reserved judgment of HHJ Rutherford.  Far from it being vulnerable to criticism, it seems to me an absolute model of a well-structured judgment at the conclusion of a long trial in a complex case.  The particular virtue is its brevity.  He has adopted submissions at a number of points to avoid the over-elaboration of the judgment.  That seems to me not any sort of abdication of judicial responsibility; it is simply a convenient shorthand way of expressing conclusion.

20. So I would only note that this case comes to the full court as a result of an order made by Ward LJ on 11 February for an oral hearing on notice with permission to follow.  For my part, I would simply dismiss the applications for permission, there being two because obviously Mr Roberts on behalf of the mother has formally lodged notice on the basis that, if the intervener were to succeed, then it could be said that his client must also succeed.  But I would dismiss both applications.

Lady Justice Smith:
21. I agree.

Lord Justice Sullivan: 
22. I also agree.

Order:  Applications refused