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Re O (Judgment: Adequacy of Reasons) [2021] EWCA Civ 149

Appeal against findings that the father sexually abused his daughter. Appeal allowed; case remitted for rehearing.

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Background

Public law proceedings arose from the father's application for contact.  The parents separated before O's birth in January 2016. The trial judge found that the mother had never been supportive of the father's contact. In November 2018, the mother stopped contact alleging that the father had sexually abused O. A s.47 investigation found 'very little evidence' to support this and expressed concern that the mother and MGM may be projecting their anxieties on to O.  This concern was later echoed by the Cafcass officer. In February 2019, at the first hearing of father's application, the court directed contact at a contact centre. Contact moved into the community in May 2019. F saw O 11 times between 11 May and 27 July 2019. On all but two occasions, he was accompanied by a family member though had taken O to the toilet alone.  On 27 July, the father took O swimming alone.  On the evening of 2 August 2019, the mother noticed blood on the toilet paper after wiping O's bottom. O was examined by the GP on 3 August, and by a paediatric forensic physician, Dr McLeod, on 5 August and 4 September.  She concluded there were signs indicative of penetrative anal abuse.  Between 5-30 August, the mother had several conversations with O and reported O made allegations about the father. O made no material statements during an ABE interview. 

At an ICPC on 10 October 2019, O was made subject to a child protection plan.  The conference chair recorded that no one could be ruled out as being the perpetrator and O was at risk of ongoing sexual harm.   At a hearing on 15 November, the court made an interim CAO for O to live with PGM and for PGM to supervise the parents' contact. On 18 November, the court directed a s.37 report and made an ICO for O to live with PGM and for the LA to supervise contact.  On 21 November, during contact, the mother alleged she had found liquid while wiping O's bottom and suspected it to be semen. Analysis of the tissue confirmed that it was not and the liquid had come solely from O. 

On 25 November, the local authority issued its application for a care order. A consultant paediatrician, Dr Crawford, was instructed.  On 2 January 2020, O made an allegation which suggested MGF may have sexually abused her. He was joined as an intervenor.

The fact finding hearing was heard by HHJ Lea over 8 days, concluding in August 2020. Thereafter written submissions were directed. The LA sought findings that O had sustained the injuries observed by Dr McLeod on 5 August as a result of penetration of her anus on several occasions by her mother or father.  The mother sought findings that the father had sexually abused O during or before November 2018 and again between March and July 2019.  The father sought findings against the mother including that if she was not the perpetrator of the abuse of O, she had failed to protect her from it; she had encouraged O to think she had been abused by the father; had asked leading questions of O; and had sought to alienate O from her father. No party sought findings against MGF.

Judgment was handed down on 16 November 2020. The judge made findings that the injuries observed on 5 August 2019 were caused by the father and that he had behaved in a sexually inappropriate way towards her in 2018 and 2019.  The court made a CAO for O to live with M and an ISO.  The trial judge refused permission to appeal but stayed the orders while father applied to the Court of Appeal.  Peter Jackson LJ granted permission to appeal and stayed the orders.

Appeal

Father appealed on the following grounds:


(1) The finding that the father was responsible for the anal laceration seen on 5 August 2019 was wrong and contrary to the medical evidence and lay evidence which appeared to be accepted by the court.
(2) If the court accepts this finding was erroneous the findings made in respect of any earlier assaults are fatally undermined.

(3) The Judge placed too much weight without proper analysis on the father's limited opportunity to cause the injuries.

(4) The Judge failed to properly analyse the evidence and make key findings about the credibility and reliability of the parents.

(5) The Judge placed weight on statements allegedly made by O without first reaching a conclusion about the reliability and credibility of the mother who was reporting the same.

(6) The Judge placed reliance on statements allegedly made by O without giving proper consideration to the factors in the evidence that detracted from the weight that he could attach to those statements.

The local authority and mother opposed the appeal. The LA argued that the father's complaint was to the  sufficiency of the reasons and identified matters upon which further reasons could be invited, if the Court determined they were insufficient. 

Baker LJ gives the lead judgment. He sets out the evidence of Dr McLeod and Dr Crawford and the arguments in some detail.  He notes the pressures upon judges and that the demanding task of drafting a judgment is compounded when no time is allocated for judgment writing.   The judge's findings were not necessarily wrong but could not stand due to the way he arrived at his conclusions. Baker LJ identified three overlapping problems:


(1) The reasoning was insufficient in a number of respects;

(2) The judge failed to take into account some material factors in reaching his ultimate conclusion;

(3) The judge looked at evidence in compartments and did not have regard to each piece of evidence in the context of the totality of the evidence.

In particular, the trial judge failed to address the medical evidence that: (i) the laceration observed on 5 August could have been caused by a fingernail; and (ii) pointed to that laceration having been inflicted after 27 July 2019, when O last had unsupervised contact with the father.  Though the judge identified the mother's longstanding opposition to contact and noted factors undermining the reliability of the evidence about O's alleged statements, he did not consider this in his final analysis.  The judge's analysis of the parents' evidence and credibility was brief. He did not refer to the father's extensive evidence, in particular as to his lack of opportunity to commit acts of sexual abuse on the number of occasions required to inflict the injuries consistent with the medical evidence.   Further, while the judge stated he could see a clear basis for the findings father sought, he gave no reasons for rejecting the detailed submissions made on his behalf.  Nor did he explain why he reached a conclusion contrary to aspects of the medical evidence which lead the LA to submit that it was 'highly unlikely' that the laceration was caused by the father. The judge also did not make findings about the alleged coaching of O by the mother in August 2019 or the incident in November 2019 in which the mother alleged that liquid on the tissue was semen.  Taken together, these errors and omissions undermined the reliability of the judge's conclusions that the father had inflicted the injuries identified by Dr McLeod. 

Having found that the father caused the injuries observed in August 2019, the judge appeared to say that this added weight to the allegations that father had touched O sexually before or during November 2018. In reaching the finding in this way, the judge did not comply with the principle in Re T [2004] EWCA Civ 558 that the judge must have regard to the relevance of each piece of evidence to other evidence and to exercise an overview of the totality of the evidence. The trial judge should have considered all the evidence about the 2018 and 2019 incidents together before making any findings. He wrongly reached a finding as to the perpetrator of the 2019 injuries in isolation from the evidence about the 2018 allegations; that evidence was relevant both to the findings as to the perpetrator of 2019 and the veracity of the 2018 allegations.   

Further, the judge's reasoning was again far too insubstantial. Having set out the issues around the credibility of the 2018 allegations and reminded himself of the need for caution when assessing allegations of abuse that arise in the context of private law proceedings, noting the mother's longstanding opposition to contact, the judge failed to weigh those matters when concluding that the 2018 allegations were true.

Sufficiency of Reasons

The judge's analysis was insufficient and flawed. The list of matters identified by the LA as points of analysis upon which the judge could be invited to give further reasons itself demonstrated the very extensive gaps in the judgment. 
Baker LJ reviews the practice of inviting a judge to give further reasons, setting out the key points of the case law and the FPR.  He notes that the practice set out in FPR PD 30A paragraph 4.6 – 4.8 is subject to two important qualifications: (1) it must never be used as an opportunity to re-argue the case; and (2) there are cases where the deficiencies in the judge's reasoning are on a scale which cannot be fairly remedied by a request for further information. Where the omissions are on a scale that makes it impossible to discern the basis for the decision or where, in addition to omissions, the analysis is perceived as being deficient in other respects, it is not appropriate to seek clarification but permission to appeal should be sought instead. This case fell into the latter category. Accordingly, the only fair course was to remit the matter for re-hearing.

Peter Jackson LJ agrees with the reasons given by Baker LJ and adds a number of observations.  He noted that the judge relied on statements by O, as reported by the mother without adequately assessing the reliability of mother or O; did not weigh the relative opportunities of each parent to cause the unusual injury, or their possible motivations. Further, the judge did not address the inherent probabilities, or improbabilities, of either parent having assaulted O on the circumstances alleged, the scenario suggested by the mother being 'desperately farfetched'. 

In respect of the reasons, Peter Jackson LJ notes it is the responsibility of the trial judge to give sufficient reasons but all judgments are capable of improvement. Where the line is to be drawn between seeking additions to the reasons or permission to appeal depends on the circumstances, but there comes a point where what would be required would not be additions but foundations. In those circumstances, there are difficulties in returning to the trial judge.


Case summary by Victoria Roberts, Barrister, Coram Chambers. 

For full case, please see BAILII