A, B and C (Fact-Finding: Gonorrhoea)
| Jurisdiction | England & Wales |
| Judge | Lord Justice Baker,Lord Justice Coulson,Lord Justice Moylan |
| Judgment Date | 26 April 2023 |
| Neutral Citation | [2023] EWCA Civ 437 |
| Docket Number | Case Nos: CA-2023-000140 |
| Court | Court of Appeal (Civil Division) |
[2023] EWCA Civ 437
Lord Justice Moylan
Lord Justice Coulson
and
Lord Justice Baker
Case Nos: CA-2023-000140
CA-2023-000217
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE FAMILY COURT AT YORK
HHJ Mitchell
YO22C50021
Royal Courts of Justice
Strand, London, WC2A 2LL
June Venters KC and Michael Cahill (instructed by Tilly, Bailey and Irvine) for the First Appellant
Nicholas Stonor KC and Ruth Phillips (instructed by Paul J Watson) for the Second Appellant
Frank Feehan KC and Iain Hutchinson (instructed by Local Authority Solicitor) for the First Respondent
Andrew Fox (instructed by Jones Myers) for the Third, Fourth and Fifth Respondents by their children's guardian
The Second Respondent was not represented
Hearing date: 7 March 2023
Approved Judgment
This judgment was handed down by the judges remotely by circulation to the parties' representatives by email and release to The National Archives. The date and time for hand-down is deemed to be 10.30am on 26 April 2023.
This is an appeal against findings made in care proceedings relating to three girls – A, now aged 7, and her two younger sisters, B and C.
At the conclusion of the appeal hearing, we informed the parties that the appeal would be allowed for reasons to be given at a later date and the matter remitted for rehearing by a different judge. This judgment sets out my reasons for agreeing with that decision.
Background
The second appellant is the mother of all three children. The second respondent, whom I shall refer to as X, is the father of the two elder children. The first appellant, whom I shall refer to as Y, is the father of the youngest child. Following the breakdown of her marriage to X, the mother started a relationship with Y in February 2020. At the time of the incidents with which we are concerned, the mother, Y and the three children were living together in a house.
On Friday 4 February 2022, Y came home for the weekend from work. Over that weekend, the family stayed together in the house, save for a short trip out. On Sunday 6 February, the mother and Y had sexual intercourse in the morning. During the afternoon, the mother took a shower in the course of which she used an item which the family referred to as a “loofah”. A and B were in the bathroom when the mother was in the shower. Two hours or so later, A had a bath. In the evening, Y returned to work.
On 8 February, the mother started to experience soreness in her vagina. She ordered a swab test online and sent the sample for analysis. On 14 February, A started to show similar symptoms and on 21 February she developed a vaginal discharge. The mother consulted the GP who arranged for A to be tested. On 21 February, the mother's test result was returned showing she was positive for gonorrhoea. On 1 March, A's test revealed that she was also suffering from the infection. At that point the GP made a safeguarding referral to the local authority children's services.
On 2 March, the local authority and police conducted a joint visit to the family home. Y agreed to move out of the property. A child protection investigation was started, in the course of which A underwent a medical examination which revealed no physical evidence that she had been sexually abused. For reasons which were not explored during the hearing, but perhaps surprisingly, A was not interviewed formally under the Achieving Best Evidence procedure. She was, however, spoken to by police officers and social workers on several occasions and made no allegations or statements indicating that she had been abused.
On 25 March, the local authority started care proceeding in respect of all three children. At a hearing on 22 April, they were made subject to interim care orders. A and B were placed with their father, X. C was placed in foster care. Written reports were obtained from three experts – Dr Ahmos Ghaly, a consultant physician in genitourinary medicine, Dr Louise Teare, a clinical microbiologist, and Dr Kate Ward, a consultant paediatrician. Statements were also filed by the mother and Y. In his statement, Y asserted that he had never suffered from gonorrhoea, an assertion that was seemingly confirmed by his medical records. Later in the proceedings, however, he disclosed that he had had sexual intercourse with another woman on 2 February 2022. He accepted that, as a result, he had brought the infection into the house and passed it on to the mother when having intercourse with her on 6 February. He had obtained treatment online rather than via his local doctor.
A fact-finding hearing listed for eight days started on 15 September 2022. The local authority invited the court to make the following findings:
(1) On 21 February 2022, A was presented at the GP on the basis of having suffered soreness, itching and discharge in the genital area for approximately one week. These were symptoms of the sexually transmitted disease gonorrhoea. A was subsequently tested on 4 March 2022 and received a positive diagnosis as suffering from vaginal and rectal gonorrhoea.
(2) It is not possible to determine the precise time at which A contracted gonorrhoea. The first recorded observation of her symptoms was on 8 February 2022. The incubation period in children is poorly defined but likely to be the same as adults: 3–14 days.
(3) There is no inherent medical or organic cause for the gonorrhoea, the only cause is infection by Gram negative intracellular diplococcus Neisseria gonorrhoeae (gonorrhoea).
(4) A was infected with gonorrhoea through transmission by either:
a. Contact between her vagina and/or anus with the penis, vagina, mouth and/or anus of an infected person. Such contact requiring intimate exposure of the respective mucous membranes.
b. Contamination of her vagina and/or anus by infected genital secretions passed from one mucous membrane to another. Such contamination must be by fresh and direct inoculation.
(5) By virtue of paragraphs 1–4, A has suffered significant sexual harm.
(6) A was infected with gonorrhoea by her mother and/or Y.
(7) By virtue of the sexual harm that A has suffered within the home, B and C were at risk of suffering significant sexual harm.
In the event, the hearing had to be adjourned after three days when the father contracted an illness and was not fit to attend. The hearing was ultimately completed between 28 November and 2 December 2022. In the course of the hearing, Dr Ghaly and Dr Teare gave oral evidence, as did the mother and Y.
At the conclusion of the hearing, the judge delivered an ex tempore judgment in which she made certain findings which were substantially in line with those set out in the local authority's threshold document. The details of the findings made in the judgment lie at the heart of the appeal and are considered in detail below. Immediately after the judgment was delivered, counsel for the mother raised a point of clarification. An exchange then took place at the end of which the judge indicated she would respond to any requests for clarification and that the time for appealing would not begin to run until after that process had been completed. An order was made recording the findings and giving further case management directions for a welfare hearing on 13 March 2023. On 14 December 2022, counsel for the local authority sent the judge a document prepared jointly by the advocates containing requests for clarification of her judgment. On 23 December, the judge handed down her response to those requests. As part of this, she made changes to her findings which are central to this appeal and are set out below.
Notices of appeal were filed on behalf of the mother on 25 January and the father on 3 February 2023. Permission to appeal was granted on 20 February.
The Judgment under appeal
After summarising the background and issues, the judge set out the relevant legal principles by reference to the case law, stating that the burden of proof lay on the local authority and noting that, if she concluded that the local authority had proved on a balance of probabilities that A had suffered harm as alleged, it would then be necessary to determine whether a perpetrator could be identified. At paragraph 17 to 18, she said:
“17. …. I must initially look at whether it is possible to identify a single perpetrator of the harm that A is said to have suffered, if I find she has suffered that harm …. The unvarnished test is clear. I must consider all of the available evidence and apply the simple balance of probabilities. A judge either can or cannot identify a perpetrator.
18. If I find that I cannot identify a single perpetrator, then, in accordance with Re B (Uncertain Perpetrator) [2019] EWCA Civ 575 I should go on to consider whether there is a real possibility that each individual on the list caused the harm….”
She reminded herself of the importance of surveying the wider canvas, adding that counsel had cautioned her against relying on the expert evidence only without putting it alongside the other evidence.
At paragraphs 20 to 27 she set out the case advanced by the mother and Y, identifying points which can be summarised as follows:
(1) It was agreed by the mother and Y that the infection had been brought into the house by Y and that he had infected the mother on 6 February.
(2) They “denied having done anything sexual or any other action” to cause A's infection.
(3) They asserted that A could have become infected by coming into contact with the “loofah” or a towel after the mother had used those items when she took a shower on 6 February.
(4) In the alternative, they suggested that A could have become infected from the toilet seat or some other surface.
(5) It was further argued that that there could be an unknown, unexplained method by which the infection had been transmitted.
(6) “A had made...
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