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M (Children) [2006] EWCA Civ 1325

This is an application for permission to appeal an order in a case where the father had been accused of sexually molesting his daughter.

The judgment is notable for Thorpe LJ's firm rejection of the application and his forthright statement concerning the Court of Appeal's role in reviewing findings of fact.



Neutral Citation Number: [2006] EWCA Civ 1325






Royal Courts of Justice


London, WC2

Thursday, 21 September 2006

B E F O R E:


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(Computer-Aided Transcript of the Stenograph Notes of

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(As Approved by the Court)

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1. LORD JUSTICE THORPE: This is an extremely complex case involving parents of Phillpine/Malay origin, who have four daughters and, more recently, a fifth child, ML. Problems with the family emerged in 2003 and seemed to be restricted to violence within the home and the level of father's control over the household. There were legal proceedings which culminated in supervision orders in favour of the local authority, made by Judge Pearlman on 9 September 2004.

2. A completely dramatic event occurred on 29 March 2005 when the eldest girl was referred by her GP to a consultant community paediatrician because of vaginal discharge. He took a swab and test results showed that the child was suffering from gonorrhoea. Emergency protection orders were immediately sought, and the children were removed and placed with foster parents.

3. There were then preparations for a trial. Since all issues were really in dispute and the parents were fighting for the restoration of the family, the case took a further dramatic turn when the eldest child at a very late stage -- indeed, in the course of proceedings -- informed her mother that she had been touched inappropriately and sexually by her father. That resulted in some delay in the legal proceedings, but the case that the judge had to evaluate had become, first of all, one of scientific evidence, and then secondly an allegation against father as perpetrator.

4. This was an extremely difficult case for investigation and decision. On the face of it, it could be said to be an improbable combination that an 11 year-old might be infected with gonorrhoea as a result of a single episode of vaginal touching by her father. Obviously, to make a positive conclusion against the father would have the most serious consequences, and the importance of avoiding a finding that was precipitate or uncertain could not have been more stark.

5. The case was tried by Baron J, and she, in the course of her judgment, directed herself in accordance with the authorities, and it simply cannot be said that she adopted the wrong approach in law. She particularly referred to and relied on the speech of Lord Nicholls in the well-known case of H and R, and also referred to his subsequent speech in the cases of Re U and Re B. She did not forget the warning that comes from the criminal justice system in the case of Cannings that judges in care proceedings must not arrive at ill-considered conclusions or conclusions resting on insufficient evidence.

6. She also had regard to the parents' rights under Article 6 and 8 of the Human Rights Convention, and in that regard she said that she only intended to interfere with rights to family life insofar as it was essential for the protection of children. So I do not consider that there is any possibility of a successful argument to the effect that the judge misdirected herself in law.

7. Her judgment on the facts runs to some 27 pages, and then she annexes to that a further nine pages of appendix in which the detailed evidence and her findings in relation to witnesses central to the decision are set out. She particularly accepted the evidence of the Consultant Community Paediatrician as honest and impressive. She rejected attacks made on his professional responsibility and conduct that had been mounted by the father.

8. So, in the end, his evidence, together with the assertions by the child that she had been fingered by the father whilst in the shower area of the family bathroom were the first foundation of the judge's conclusion. But the second foundation was her clear rejection of the father's denials. The judge said that she found him a most unsatisfactory witness because he either avoided the question or lied. She did not accept any of his denials. She accepted a diagnosis of him having a grandiose and narcissistic personality. She found him to be a controlling and manipulative individual with a forceful personality, and that he had his wife completely in his thrall. I say "his wife" because, subsequent to judgment, the parents have married. At the date of judgment below they were parents, but not spouses. They are now both parents and spouses.

9. So that short analysis of the judgment demonstrates how futile is this application for permission. The job of establishing fact on the proper application of legal principle rests with the trial judge. There is no right of re-hearing. This court's responsibility to interfere is confined to relatively narrow areas, such as errors of law or disregard of relevant evidence.

10. This, in my judgment, is a demonstration of a most careful review of evidence and credibility, driving to an ultimate conclusion, which although stark and in some senses unlikely, is not open to challenge or review in this court.

11. I only add that the litigation is by no means over. Although at its conclusion the judge granted a care order to the London Borough, there are live proceedings in relation to the fifth child of the family, ML, and issues in relation to the girls, I am told today, are also to be considered at a fixture over four days in the Family Division, commencing in the middle of October. For the reason of that fixture, this permission application has been accelerated so that the further course of proceedings in the Family Division is not hampered or delayed by an outstanding permission application.

12. For all those reasons, the application of 13 July for permission to appeal the order of 29 June must be refused.