Re O (Description of Sexual Abuse)
| Jurisdiction | England & Wales |
| Judge | Mr Justice Cobb,Lady Justice Whipple,Lord Justice Peter Jackson |
| Judgment Date | 15 February 2024 |
| Neutral Citation | [2024] EWCA Civ 126 |
| Court | Court of Appeal (Civil Division) |
| Year | 2024 |
| Docket Number | Case No: CA-2023-001846 |
[2024] EWCA Civ 126
Lord Justice Peter Jackson
Lady Justice Whipple
and
Mr Justice Cobb
Case No: CA-2023-001846
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE FAMILY COURT AT WORTHING
Her Honour Judge Earley
Royal Courts of Justice
Strand, London, WC2A 2LL
Deirdre Fottrell KC (who did not appear below) and Charmaine Wilson (instructed by Brighton & Hove Law) for the Appellant
Ruth Webber (who did not appear below) (instructed by Local Authority Legal Services) for the Respondent
Hearing date: 1 February 2024
Approved Judgment
This judgment was handed down remotely at 10.30am on 15 February 2024 by circulation to the parties or their representatives by e-mail and by release to the National Archives.
Overview
This appeal focuses on a finding of ‘sexual abuse’ contained in a judgment delivered at the conclusion of a final hearing in care proceedings under Part IV of the Children Act 1989 (‘CA 1989’). In the judgment under review, handed down by Her Honour Judge Earley following an eight-day contested hearing, the specific term ‘sexual abuse’ was applied to describe the repeated, albeit unintentional and negligent, exposure of a young child to adult sexual material, including adult nudity and pornography, using mobile smartphones and other electronic devices. This finding supported the Judge's conclusion that the statutory threshold criteria contained in section 31 CA 1989 was established, namely that “the care given to the child” was not “what it would be reasonable to expect a parent to give to [her]”: section 31(2)(b)(ii) CA 1989.
The appeal concerns a girl, O, now aged seven. The appellant is her mother (‘the mother’), who is represented on the appeal by Deirdre Fottrell KC (who did not appear below), and Charmaine Wilson. The local authority (the applicant in the care proceedings) is represented on the appeal by Ruth Webber (who also did not appear below). In the proceedings in the Family Court, O's father (‘the father’), O's paternal grandmother, O's maternal grandparents, and O herself (by her Children's Guardian) were parties and legally represented. None of these other parties to the proceedings have appeared on the appeal; the Children's Guardian has filed a short position statement indicating her support for the local authority's argument on the appeal.
By the primary Ground of Appeal the mother asserts that the Judge was wrong to find that unintentional and negligent exposure of a child to adult sexual material constitutes ‘sexual abuse’; in this regard, she argues that the Judge incorrectly interpreted and/or applied the definition of sexual abuse as set out in the statutory guidance issued by the Department for Education, ‘Working Together to Safeguard Children’ (the ‘DfE Guidance’). The 2018 edition of the DfE Guidance was in force at the time of the judgment; it has now been revised (December 2023) but the definition has remained unchanged. By a second, subsidiary, Ground of Appeal the mother complains of procedural unfairness, in that the Judge introduced and relied on guidance published by the NSPCC (and specifically the definition of sexual abuse contained therein) following the circulation of her draft judgment; this second complaint is that the NSPCC definition extended the parties' use and understanding of the term sexual abuse beyond the scope of the finding sought by the local authority in the case.
At the hearing before the Family Court it was conceded by the parents that the section 31 CA 1989 ‘threshold criteria’ were established on a number of grounds. There is no appeal against the findings of fact, nor the ultimate outcome of the case (see §17 below). However, the conclusion that the mother and father had sexually abused O has, it is acknowledged, potentially important consequences for both parents; permission to appeal was accordingly granted by Peter Jackson LJ on 20 November 2023.
Factual background
The factual background laid out in the paragraphs which follow is taken in large measure from the Judge's judgment.
O is the only child of the mother and the father. She has two younger maternal half-siblings, one of whom was born only in the last few weeks. The mother, while acknowledging the many proven deficits of her parenting thus far, is concerned that the Judge's finding that O had been sexually abused in her care will materially adversely impact upon local authority assessment and planning in relation to her newborn child.
The parents separated when O was very young. The Judge found that O:
“…experienced trauma as a result of the neglectful and chaotic parenting she received up until June 2022. [O] has had years of instability and frequent changes of carer and home.” (Judgment paragraph 65).
Both parents have a history of illicit drug use which continued through the period in which the care proceedings were before the court. The mother suffers from mental ill-health; specifically she has a complex post-traumatic stress disorder as a result of a sexual assault upon her when she was a teenager. The mother has also been the victim of serious domestic abuse in many forms from more than one partner in her adult life. The mother formed a relationship with a man (‘KS’) in early 2021; this was (in the Judge's finding) an abusive relationship. The mother made and retracted several allegations of domestic abuse against KS in the period under review before the Family Court. At all material times, following the separation of the parents, the father has lived with his mother (i.e., O's paternal grandmother).
In 2020, a child protection investigation was conducted arising from concerns that O may have been sexually abused. The concerns arose, in particular, from O's displays of sexualised behaviour. The investigation was ultimately inconclusive.
From February 2021 to October 2021, O lived predominately with her father and paternal grandmother. In this period the father bought O a mobile phone (specifically, a smartphone, with internet access and facility for software apps). This was, apparently, not her first mobile phone even though she was barely five years old. The father claimed to have purchased the device so that O could access a gaming platform called ‘Roblox’; the Judge recorded that the PEGI [Pan European Game Information] rating for Roblox is 7+ years. When O's mobile phone was retrieved by the police on 28 May 2022 (see §11 below), it transpired that a number of other apps had been installed on O's phone, some of which have a minimum age requirement far beyond O's years; they included Facebook Messenger (minimum age 13 years), which the mother claimed had been logged into the father's account when the phone was retrieved, and TikTok (minimum age 13 years), which the Judge specifically found the father had installed. The police later confirmed (following analysis of the phone) that O had received ‘stickers’ from an unknown person via a chat on TikTok; ‘stickers’ should only be capable of being created by those who are aged 16 years and older. Further, the father accepted that he had allowed O access to YouTube, and had not put parental controls in place. These findings understandably materially informed the Judge's conclusion that the father had neglected his responsibility as a parent to keep O safe from inappropriate online material.
O moved to live with her mother and KS for a period in October 2021, before returning to her father in January 2022. After her return to her father's care, O continued to see her mother.
On 28 May 2022 O attempted to send to her mother, using her mobile phone, a photograph of her eye which, she complained, was sore. Inadvertently, she in fact sent her mother at least four intimate photographs and/or videos of herself, some in sexualised poses. The mother contacted the police who attended the paternal grandmother's home and removed O, transferring her to her mother's care. When O's mobile phone was later analysed by the police, over one hundred intimate and sexualised photographs and videos of O were found. It was accepted at the hearing that the photographs and videos had been taken by O herself, at the father's home, probably over a five day period in May 2022.
The evidence revealed, and the Judge found, that the father had first become aware of images of O in similar poses stored on her mobile phone some weeks prior to 28 May 2022. The Judge records that the father's evidence on this issue was internally inconsistent; his case at the hearing was that he had seen some images of O in sexualised poses, was shocked, and had deleted them, but he had told no-one of this discovery and did not discuss the images with O. The Judge found that the father had culpably failed to take any action to safeguard O and/or prevent a continuation of her behaviour. It was the father's stated position at the hearing in the Family Court that the issues surrounding the photographs and videos were being “blown out of proportion” and that “all children do these things”.
After removal from her father's care, O was physically examined; bruising on her inner thigh was found in a location which, in the opinion of the doctors, was unlikely to be accidental. Nothing else was identified on medical examination which indicated that O had been sexually abused by any form of physical contact. An account of a tree-climbing accident was given to the Judge by the paternal grandmother to explain the bruising. In the final analysis the Judge concluded that there was “insufficient cogent evidence on which [she] could conclude that these bruises were inflicted upon [O] by an adult”. Concerns were nonetheless raised by the doctors about O's sexualised presentation at the medical examination. She attended (with her mother) with...
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