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Re B And Y [2020] EWCA Civ 767

An appeal by a father against findings that he had sexually abused his daughter was dismissed as the judge at first instance was entitled to make the findings he did on his assessment of the evidence.

By way of background the court was concerned with sisters B, rising 11 years of age and Y who was 5. They lived with their parents in the North of England. The father worked abroad during the week and returned to the family home at weekends and during Holidays. In January 2019, the family moved to another part of the same city for schooling reasons.

The judgment notes that both before and after the move, the children slept in the same bed and that on occasions the father got into bed with the children and at other times both parents got into the children's bed together.

In April 2019 the parent of one of B's school friends told the headteacher that B had told her daughter that "her dad is very sexual touching her" and that "her mum smacked and shouted at her".  This allegation set off a predictable chain of events whereby the headteacher spoke to B who made a number of allegations against her parents. The head teacher then notified the local authority who in turn notified the police and later that day a joint visit was undertaken whereby B confirmed that she had tried to tell her Scottish aunt about what had happened, but she said she was unable to help her.

The children were removed from the care of their parents and accommodated under section 20 of the Children Act 1989 and some five days thereafter B took part in an ABE interview. Paragraphs 9 to 15 of the judgment give a flavour of that interview whereby the child confirmed the allegations that she had made previously.

Care proceedings were then initiated and in June 2019 the girls moved to live with their maternal grandparents following a positive assessment and approval from the court. They continued to have regular contact with their mother but contact to the father was only resumed the following month after B confirmed that she wanted this and it was supervised.

Over the summer, it was argued on behalf of the parents that in various conversations, B made statements which amounted to retractions of at least part of her allegations. In September 2019 the police concluded their investigation and no charges were brought against the father.

As part of the care proceedings, a psychological assessment was carried out of B and the expert concluded that there was a "significant discrepancy between her higher than average academic ability and her relatively poor emotional and social maturity" suggesting she may be on the autistic spectrum. 

As part of the fact-finding process, the father made an application that B give evidence and following a "Re W" hearing, the application was refused and no appeal against that decision was made.

At the fact-finding hearing which took place over 7 days, the court heard evidence from, amongst others: the head teacher, the social worker who spoke to the child at her school, the police officer who also spoke to her at school and conducted the ABE interview, the aunt from Scotland and the parents.

At the outset of his judgment, HHJ Allweis summarised his findings on a balance of probabilities as follows:

(1) that the father had touched B in a sexually inappropriate way;

(2) that the mother did not know that this was happening;

(3) that the mother was responsible for unreasonable chastisement, "but at the lower end of the spectrum and not enough to justify continued separation from the girls".

He added that the girls could therefore return home to live with their mother so long as the father was absent.

The judge placed significant weight on the initial "disclosures" to the head teacher, social worker and police officer along with the account that B gave in her ABE interview.

The judge made a care order permitting the children to return home to the care of their mother and have supervised contact to their father.

The Father appealed relying on 7 grounds; three of which were dismissed including the ground relating to the Re W decision. The 4 on which permission was given can be summarised as follows:

i) the judge failed to address the manifest inconsistencies in the evidence of the child and, by making findings in respect of the allegations against the father and not against the mother, his approach lacked overall consistency and coherence;

ii) the judge wrongly concluded that the allegations amounted to sexual abuse;

iii) the judge failed to consider other aspects of the evidence in addition to the matters cited above including that the analysis of the child's retractions was inadequate; and

iv) the judge failed to give sufficient weight to the breaches of the ABE guidelines and the impact that they had on the content and reliability of the evidence.

Baker, LJ giving judgment concluded that whilst the appellant's case sought to attack the judge's assessment of the evidence and the weight he attached to it, he confirmed the well-established principle that the appellant court would not interfere with findings of fact and evaluations made by a trial judge, unless they are ones which the judge could not reasonably have made. In this case at first instance the judge carried out a thorough and careful analysis of the evidence and was entitled to conclude as he did, and the appeal was dismissed.

On the ABE point specifically, the father was was unable to identify mistakes in the conduct of the interview on a scale sufficient to call into question the reliability of the process.

Summary by Anna Walsh, barrister, Coram Chambers.

Read the full judgment of Re B And Y [2020] EWCA Civ 767 on BAILII