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F And G (Children : Sexual Abuse Allegations) [2022] EWCA Civ 1002

Findings of sexual abuse were made against the intervenor in care proceedings that he had sexually abused his 5 year old step-daughter. He appealed the findings.

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The child had been the subject of an 'ABE' interview that was non-compliant with best practice guidance in various ways. She had undergone a medical examination, and the examining doctor concluded that against a backdrop of a clear allegation from the child, the clinical findings supported the allegation of penetrative abuse. Written evidence from a paediatrician concluded that hymenal notches were 'suggestive' of penetration.

Following the handing down of judgment the intervenor's representatives submitted a document raising 13 'points of clarification' of the reasons for the findings made. The recorder declined to expand upon or clarify the judgment and refused a subsequent application for permission to appeal. Permission to appeal was subsequently granted by the Court of Appeal.

The grounds of appeal comprised complaints that the judge had given weight to certain factors whilst ignoring others in his analysis, and this inadequate weighing or analysis was said to undermine the findings. In particular he relied upon the context of the allegations including the potential for the child's father to have influenced or distorted her allegations (including some evidence suggestive of coaching by the father and inadequacies in investigation and interview), the fact that there was some doubt about whether the child understood truth and lies, and credibility and consistency (or lack of the same), the child's reported behaviour and the intervenor's own credibility.

On appeal the court of appeal considered the structure and content of the reserved judgment of the recorder in some detail, through a lead judgment delivered by Baker LJ, with which Laing LJ and Davis LJ concurred.

As regards the inadequacies in investigation, the court concluded that although the judgment did not contain a comprehensive list of the deficiencies in the initial conversation between the social worker and police officer and F on 21 January, the analysis was 'sufficient to demonstrate that he has engaged with the issues and arguments and an explanation of the reasons for the decision'. Similarly with respect to deficiencies in the ABE Interview: 'Again, although the judgment did not contain a comprehensive list of the deficiencies in the ABE interview, it is clear that the recorder was fully aware that there had been significant departures from the practice recommended in the ABE guidance' and that 'The recorder concluded that, despite the deficiencies, the interview contained significant evidence on which he was entitled to rely. I am not persuaded that he was wrong to do so. Although his analysis of the interview was relatively short – certainly shorter than that set out in the closing submissions on behalf of the intervenor – it is sufficient to satisfy me that he fully engaged with the criticisms and considered the extent to which it undermined the reliability of F's reported allegations.'

When considering the ground pertaining to the child's understanding of truth and lies – the recorder had taken into account the issues. His reasons for attaching weight to the allegation were 'clear and legitimate'. The court did not accept the assertion that the recorder had not adequately weighted or analysed this issue.

The fact that there was no reference to the grandmother's email suggesting the child had reported 'her daddy has told her to tell' professionals that D and her maternal step-grandfather had hurt her was 'an omission from the judgment which might have been filled by a response to the request for clarification in which the point was raised'

'The question' said the court was 'whether this omission is sufficient to justify allowing the appeal'.

As regards credibility of the child in light of varying accounts the appeal court said of the recorder's reasons:

'This is a short, succinct summary of the differences in the child's various accounts. The recorder does not descend into the detail. But in my view he provides a sufficient explanation of his reasons for concluding that the core allegation made by F against the intervenor is reliable'

The ground relating to the child's behaviour related to the facts that the behaviours described were not specific to abuse but could have other causes and that they predated the allegations /involvement of the intervenor. However, this ground too failed because it was:

'axiomatic that the assessment of evidence, and the apportionment of weight to be attached to each piece of evidence, are matters for the judge at first instance. This Court will not interfere with findings of fact by trial judges unless there is a very clear justification for doing so. Surveying the whole cloth, as Mr Rowley put it, the recorder was entitled to conclude that the reports of F's behaviour provided corroboration of the allegation that she had been abused. In any event, as I read the judgment, the recorder's decision turned ultimately in his acceptance of the child's allegations as reliable, supported by the medical evidence. His conclusion about the interpretation of the observed behaviours was not essential to his decision. I do not consider that the judge's treatment of this aspect of the evidence gives rise to a sustainable ground of appeal.'

Finally, the analysis of the appellant's evidence and credibility was 'relatively brief but clear and his explanation for concluding that he was the perpetrator, whilst again being brief, is a sufficient explanation of the reason for his finding.'

Separately from the pleaded grounds the court heard some argument about the recorder's refusal to respond to the request for clarification. The court of appeal rehearsed the various cases and guidance since the decision in English v Emery Reimbold and Strick Ltd [2002] EWCA Civ 605, in particular Re I (Children) [2019] EWCA Civ 898 noting that

'In the three years since the judgment in Re I was handed down, there has been little if any discernible restraint in the practice of seeking clarification of judgments. Meanwhile the pressures on the family justice system have grown ever greater and King LJ's observations about the burdens imposed on judges having to deal with such requests are of even greater relevance than they were in 2019.'

Although not critical of counsel for her 'carefully crafted and detailed 'points of clarification'' the court did say that these 'went beyond what is intended by the authorities and the recorder was not obliged to answer them'. Moreover, 'The recorder's refusal to respond to any of the points of clarification was not a ground of appeal raised on behalf of the intervenor. In my view, had it been raised, it would not have led to a successful appeal.'

Giving general further guidance on the topic, Baker LJ said :

'When giving judgment in a complex children's case, no judge will deal with every point of evidence or every argument advanced on behalf of every party. The purpose of permitting requests for clarification to be submitted is not to require the judge to cover every point but rather, as the Practice Note emphasised, "to raise with the judge and draw to his attention any material omission in the judgment, any genuine query or ambiguity which arises on the judgment, and any perceived lack of reasons or other perceived deficiency in the judge's reasoning process." It is therefore rarely if ever appropriate for counsel to enquire as to the weight which the judge has given to a particular piece of evidence. If, as frequently happens, a judge draws together various strands of the evidence in giving reasons, it is neither necessary nor appropriate for counsel to separate out each strand and enquire what weight the judge has or has not attached to each piece, unless it can be said that in giving his reasons in a general way the judge has failed to address material parts of the evidence, or has created an ambiguity, or failed to provide sufficient reasons for his decision.'

The failure to address the evidence of the maternal grandmother about the child's reported remarks was a point which it was appropriate to draw the recorder's attention to, it would have been in order 'to enquire whether it was taken into account by the court in reaching its decision'. However, in itself this omission was insufficient basis upon which to overturn the decision. Although in some respects the judge had 'expressed his reasons in general terms without descending to the particulars' the court saw 'no reason to doubt that he failed to consider all the evidence or the extensive submissions put before him at the end of the hearing'.

The court concluded that 'the recorder delivered a well-structured judgment in which he set out the reasons for his decision succinctly […] but in my view with sufficient clarity.'

Case summary by Lucy Reed, Barrister, St John's Chambers

For full case, please see BAILII