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W (A Child) [2007] EWCA Civ 523

Appeal by father against finding that he had sexually abused his daughter and step son. Appeal dismissed.

Counsel for the father argued on three principle grounds: 1) that the police had not found sufficient evidence to pursue a criminal charge; 2) that the judge had relied too heavily on the evidence of the expert witness and; 3) the judge had insufficient time to assess the credibility of the father's evidence. In rejecting these arguments, Thorpe LJ emphasised that there is a significant difference between findings in the context of contact proceedings and those arising in a criminal trial.


Case No: B4/2006/2600
Neutral Citation Number: [2007] EWCA Civ 523

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: Wednesday, 2nd May 2007



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(DAR Transcript of
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MISS K MAQSOOD (instructed by Messrs Neasham Lloyd) appeared on behalf of the Appellant.

MR P KENT (instructed by Messrs Trumas) appeared on behalf of the Defendant.

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Judgment (As approved by the Court)

Lord Justice Thorpe:
1. The parties to this appeal had a relationship between October 2000 and September 2004. There was a little girl born to their relationship on 12 April 2002 and she was named L. The mother had an older child, J, who was born on 1 July 1997 and of course the appellant was step-father to J and is recorded to have been a very good step-father. The parties separated in September 2004 and thereafter sensible arrangements were made for contact which went perfectly well until October 2005. Then there was a small concern raised in the mother's mind, which magnified considerably following contact on 5 December 2005 when L at home said to her mother that her father had touched her in her vaginal area. That led to the usual procedures of child protection. She was seen by a paediatrician on the following day and the police carried out their investigation, during the course of which L, if anything, said less rather than more.

2. However, the case assumed a more serious dimension when her half-brother, J, during the course of a video interview on 19 December, suggested that there had been some sort of touching of his bottom by his step-father. The police were confident in their conclusion that that was an innocent rather than a sexual touching. On 24 December, there was a further disclosure by J of a more serious character. If true, it could not be characterised as innocent touching. Finally, at the end of January there were further disclosures by J. All that was the subject of police investigation.

3. The issues obviously had to be investigated in the Family Justice System and a fact finding hearing was fixed for 22 November 2006 before Compston J in the Oxford County Court. On that day the hearing commenced at about 11.30am and the judge viewed the video interviews until lunch. In the afternoon, the mother testified for approximately two and a half hours. Her evidence had enhanced significance because the father had gradually developed a conviction that she had invented or manufactured the so-called disclosures and that her motivation was malign, so obviously, she had to defend herself and demonstrate that she had acted throughout sincerely and in good faith.

4. On the second day the court resumed at 10.30am and heard Dr Robertson, the paediatrician, and also the father's then girlfriend. Miss Maqsood, who conducted the father's case in the court below as in this court, called her client at about 12.15pm and elected not to examine in chief, but tended him for cross-examination. He was cross-examined by the mother's counsel for only about 20 minutes, she tells us, and she scarcely re-examined. The judge then rose for a brief period and returned to give his judgment, which is transcribed at about eight pages.

5. He then allowed the parties to consider his conclusions, which were adverse to the father and contrary to Miss Maqsood's submissions. There were then exchanges after judgment in which the judge retreated somewhat from the position he had taken in the final paragraph of his extempore judgment, in which he expressed the preliminary view that contact should nonetheless be re-established with the safeguard of supervision.

6. Thereafter, there was an application to this court for permission which was filed on 12 December. Unfortunately, it was not put before the supervising Lord Justice for about three months, when Wall LJ directed an oral hearing without notice. That took place on 29 March when permission was granted and an expedited appeal directed.

7. Miss Maqsood has presented the father's case both before the judge in the Oxford County Court and on two occasions in this court with great clarity and professionalism. She has distilled her grounds of appeal to three principal submissions, which she has elaborated this morning. In relation to the disclosures, she makes a large number of valid points to the main effect that the statements of the children are in many respects inconsistent or palpably in conflict with incontrovertible facts. By way of instance J describes an incident occurring on the top bunk bed when there are no bunk beds in the house. Then she points to the fact that another episode that he describes could only be plausible were he and his step-father of roughly the same height. She further emphasises the fact that the mother, unfortunately, no doubt under the stress and anxiety that developments of this kind inevitably trigger, was talking to all sorts of people about what had happened, or what she feared had happened, often enough in the presence of the children.

8. Finally, Miss Maqsood in relation to disclosures emphasises that the very experienced police team not only concluded that there was no sufficient evidence to prosecute but, unusually, concluded that the suspected adult was innocent and that, to some extent, the mother was either causing or exacerbating the problem by her encouragement of relatives, friends and school parents to condemn the father. She also makes the point that the local social services referred L to a specialist resource in Oxford who had carried out some therapeutic work with L and concluded that nothing had happened.

9. Secondly, Miss Maqsood is critical of the reliance that the judge placed on the evidence of Dr Robertson. Dr Robertson had seen L on that single occasion and, when her investigations were complete, concluded that there were no physical signs that were either corroborative or suggestive of what the child had disclosed. However, it seems to me, that the judge was not only entitled but was bound to have regard to the experienced view of Dr Robertson that the child at consultation demonstrated a level of anxiety or fear that was at the very top end of the scale of what Dr Robertson had encountered.

10. Perhaps Miss Maqsood's most impressive point is that the judge reached very positive, firm conclusions as to the respective credibility of the parties and had categorically rejected the evidence of the father when he had had only a 20-minute exposure in the witness box. Miss Maqsood says that the judge over-emphasised the significance of the fact that the father had attributed malicious motives to the mother, when he could equally and perhaps more naturally have simply said that he had no explanation for how the children had come to say these things. Miss Maqsood says that the father only adopted the theory of a malign mother when the police persuaded him that it was such a case.

11. The problem for Miss Maqsood, it seems to me, is that all the cogent points that she makes in support of her appeal were clearly made with equal clarity to the judge and were clearly considered by him in the course of his judgment. He, relatively early, made it plain that on one disputed issue, namely the events of October 2005, he preferred the mother's version, which was incapable of reconciliation with the version advanced by the father. He was fulsome in his praise for the mother in paragraphs 15 and 16 of his judgment, describing her as honest and pleasant, a very straight person. He ultimately said:

"…I found her to be honest in trying to assist the court, motivated. I am quite certain of this, by love and concern for her children and not motivated by a wish to do the father down."

By contrast, in paragraph 17 he spoke very plainly when he said:

"I think he was lying about the sexual abuse and was indeed denying what I find did occur."

12. He was very positive in his commendation of Dr Robertson and her evidence and, having considered the submissions of Miss Maqsood, he said that whilst there were discrepancies:

"… I have to say, even using the criminal burden of proof, beyond reasonable doubt, it did seem to me that J was telling the truth and there was nothing improper about the interview. I consider that J was telling the truth".

13. So, in the end, the obstacle that stands in Miss Maqsood's path to a successful appeal is that the judge has carried out his essential function. He has listened to the two most important witnesses, mother and father. He has considered all the relevant circumstantial factors. He has been much impressed by the evidence of the doctor and he has come to very clear and firm conclusions.

14. Mr Kent, who appears today for the mother, adopts the submissions that would have been made by Mrs Martin, who appeared in the court below, and in his skeleton submits that the appeal should be dismissed and the matter should be listed urgently for further hearing in the county court. The effect of the appeal has been to interrupt the process that was initiated by the judge's comment in his final paragraph and in the post-judgment exchanges.

15. Miss Maqsood has sought to emphasise how grave is the finding recorded in the order of the court that the father has sexually abused L and J, in that on various occasions in 2005 he touched L's vagina with his hand; and on two occasions touched J's penis with his hand, and on two occasions touched J's backside with his hand. Miss Maqsood submits that they will follow the father through any future relationship that he may develop and through any future parenting. She submits that the social services department in the locality will be aware of this finding and will have the father, as it were, on their risk list.

16. I do not, myself, share that appraisal of consequence. It seems to me that there is a huge difference between a conviction for a sexual offence at the conclusion of a criminal trial, where the issue of guilt has been decided by a jury. Here, there are only private law proceedings between the parties. The conclusion has been reached by a judge sitting on his own, albeit a very experienced judge, but like all of us he is fallible and it is perfectly possible that had the case been heard by a different judge on the same day he might have arrived at a different conclusion. It is open to the father to emphasise, should this piece of history be discussed in future by professionals who were not involved in this case, that experienced police officers took a different view of his responsibility and involvement. Also, that the specialist service to which L was referred were equally clear that they were not dealing with a case of an abused child.

17. The important thing is that in future the concentration should be upon the relationship that the appellant has with his daughter. In a sense the underlying root problem would have been there whichever way the judge went in his conclusion; even had he concluded that the father had not touched either child in a sexual way, there would still be the fact that the children had said what they said and that L had behaved as she did behave when referred to Dr Robertson. So there is an underlying dysfunction in the family that has to be investigated and addressed. Miss Maqsood has made the point that here there was no expert other than a paediatric expert because the appellant is not publicly funded, and no directions were given for the instruction of an expert. It seems to me plain that there is now a need for some expert assessment of the root cause of the family problem. Obviously, the incoming expert will have to have regard to the judge's conclusion and for the purposes of future litigation between the parties, the conclusion is not open to challenge or reinvestigation.

18. It is heartening to hear from Mr Kent today that the mother is open to cooperate in the necessary future work and is keen to see the restoration of a relationship between the appellant and his daughter which, prior to the dramatic events of December 2005, was always a good one. So, although I would reach the conclusion that the criticisms made of the judge are unfounded and that the appeal must be dismissed, I would hope that the future of the appellant's relationship with L, and indeed his future prospects as a parent, will not be unduly overshadowed by the conclusion reached by Compston J on 23 November last.

19. The appeal is dismissed.

Lord Justice Thomas:
20. I agree.

Mr Justice Coleridge:
21. I, too, agree.

Order: Appeal dismissed.