Re FS (Child Abuse: Evidence)

JurisdictionEngland & Wales
Judgment Date07 April 1995
Judgment citation (vLex)[1995] EWCA Civ J0407-8
Docket NumberFC3 95-5657-C
CourtCourt of Appeal (Civil Division)
Date07 April 1995
Re F S (Minors)

[1995] EWCA Civ J0407-8

Before: Lord Justice Butler-sloss Lord Justice Morritt Lord Justice Hutchison

FC3 95-5657-C





MISS C BUDDEN appeared on behalf of the Local Authority. (Instructed by County Solicitors.)

MRS. D BARNETT appeared on behalf of the Guardian ad Litem. (Instructed by Legal Services Division, Child Legal Care Team.)

MISS C WHIPPMAN appeared on behalf of the mother. Instructed by Hart Brown and Co, Farnham, Surrey.)

MISS J PARKER QC appeared on behalf of the father. (Instructed by Tanner and Taylor, Victoria Rd., Aldershot.)


7th April 1995


This is an appeal by the local authority supported by the guardian at litem of three children: Stephen, born on 3rd March 1986 who is now 9, Natasha born on 9th February 1988 who is now 7, and Jacqueline born on 19th April 1994 and therefore nearly one. The appeals are against the orders of His Honour Judge Main QC sitting at Guildford County Court, made on 19th December 1994 after an eight day hearing. The Judge granted residence orders for the father and the mother, with a supervision order in respect of Natasha after applications by the local authority for care orders in respect of all three children. The father cross-appealed the issue of the finding of the child sexual abuse, and the mother seeks a residence order to herself alone.


The background is that the parents were married in June 1982. The two elder children were born and there was an apparently happy marriage and family life until it was destroyed on 23th August 1993. In the words of the Judge's judgment:

"In the afternoon of 23rd August 1993, Natasha…..was seen by her mother to be scratching her private parts. On being told not to do that because it was rude, she replied: 'It's not me that's rude, it's daddy. Daddy put his willy in my rude bits.'

That remark shattered the life of this family. Shortly afterwards father collapsed from ascertained causes and went to hospital for a while and has not since lived at home."


The mother informed the doctor at the suggestion of the father, and the doctor, Dr. Nichols, reported the matter to the child protection team. The judge went on:

"A medical examination conducted by a paediatrician was inconclusive. A video-taped interview was conducted on 25th August by a Woman Police Officer…

It will be seen that Natasha persists in her suggestion that her father touched her 'rude part with his Willy' and that 'his Willy had cream in it'. She knew that because she asked him what he was doing. When she asked him he was lying on her bed.

At the end of the interview she was given anatomically-explicit dolls and she put the dolls representing her father and herself into just this position.

Soon afterwards, and probably by 31st August, Natasha told her mother that what she had been saying was not true, and she has maintained that position ever since."


The father has always denied that he has committed any abuse of any sort. The child protection procedures were invoked, but since the father remained in hospital until 15th September, the two elder children have throughout remained at home with their mother. The father, on his discharge from hospital, lived and continues to live elsewhere. The mother at the time was pregnant with the youngest child. The police decided to take no further action. It was however the responsibility of the local authority to continue to deal with the situation and, despite some criticism which does not appear justified, they pursued their inquiries. They obtained a report from a consultant child psychiatrist, Dr. Wilkins, who after interviewing the family and watching the video of Natasha's interview, said:

"He saw mother and father on 21st October 1993. He expressed the opinion that Natasha had been sexually abused by her father and that the abuse had included ejaculation. He considered that any child was at risk from father, who should not be allowed to return home.

This advise was accepted and acted upon by social services and they obtained agreement for the father remaining away from home."


The parents then instructed a Dr. Fitzpatrick. She saw the video and read the papers and agreed with Dr. Wilkins. Owing to the serious illness of Dr. Wilkins, the local authority then asked Dr. Baker to report. He expressed views in agreement with, but more strongly than, the other two consultants. All three consultant psychiatrists have experience in problems of child sexual abuse. In addition there was a report from Professor Newsom, a chartered psychologist who considered other influences which might have affected the child (such as a pornographic video) and he advised caution in accepting her account. All except Dr. Wilkins gave evidence, and his report was provided to the Judge.


From the reports of the oral evidence the three psychiatrists were agreed that, in view of the denial by the father and the support of the father by the mother, it would not be safe for the children if the father were to rejoin the family. The local authority sought care orders with a care plan that the children should remain with the mother, but that the father should not return for the foreseeable future in the absence of a change of attitude and after undergoing therapy.


The hearing before the Judge took place nearly 18 months after the incident in August 1993. In the intervening time Jacqueline was born. The period has been extremely stressful for the family, as one can imagine, but particularly so for Stephen and Natasha. Stephen became enuretic at the age of 8 and 9, and Natasha has suffered from both enuresis and encopresis. The family general practitioner became very concerned about their emotional well-being and gave evidence to the Judge that they were suffering emotional harm from the enforced absence of their father. He also found it difficult to accept the possibility of sexual abuse.


The mother was thought by Dr. Baker in his report to be moving towards the possibility that Natasha was giving a true account of abuse. The mother however, both in her written and oral evidence, was loyal to the father and said she did not believe the allegations. This evidence of the mother reinforced the concern of the social workers and the guardian ad litem that the mother's attitude precluded her being able to protect the children if the father returned home. The doctors, social workers and the guardian ad litem considered all three children, not only Natasha, to be at risk.


The first issue is whether the Judge's findings of sexual abuse perpetrated by the father on Natasha can be upheld. The Judge found the father to be an unconvincing witness and he held:

"In the result, I have come to the conclusion on the totality of the admissible evidence that I am satisfied that there has been some inappropriate contact between the respective private parts of Natasha and her father, but I am not satisfied of any detail. In particular, I am not satisfied that he ever had an erection or ejaculated in her presence. In this sense only and only to this extent, I am satisfied that Natasha has been sexually abused by her father."


In a discreet submission, Miss Parker QC, on behalf of the father, outlined her argument that the Judge had erred in the standard of proof that he applied to these serious issues. She accepted however that had he applied the correct test, she could not seek to go behind his findings. Further, if the appeal by the local authority did not succeed and care orders were not imposed, she would not wish to continue to proceed on her cross-appeal. Having read her helpful and comprehensive skeleton argument, without hearing full oral argument, in my view she is very wise. I cannot see how the Judge's approach to his task could be faulted nor his findings. Consequently it is not necessary on appeal to set out the evidence leading to those findings. The Judge found that the section 31 threshold was reached with each child, although there was some hesitation in relation to Stephen and Jacqueline.


The main issue of substance in this appeal is the attack upon the exercise of his discretion. The Judge was faced with an extremely difficult and worrying decision, and one which he was, in seeing and hearing the witnesses, better qualified than the court of appeal to make. Miss Budden for the local authority is well aware that this court will not interfere with the exercise of the Judge's discretion unless he was plainly wrong. She has made a number of points in criticism of the Judge's decision to refuse to make care orders and make a residence order in favour of the father. The Judge considered the degree of risk to each child.

"The next issue is: what are the risks to each child on that basis? So far as Natasha is concerned, there must, I supposed, be a risk of repetition. These proceedings will, of course, draw the attention of both of them to the dangers, but sexual activity of this kind can, it is said, be addictive.

I find it very difficult to see that there is any real risk either to Stephen or Jacqueline. It is said that sexual abusers are not gender or age specific, but I am not sure that on my limited finding that this approach is anything more than academic. I accept, however, that there is some small risk to each child."


He then found that the threshold was reached.


He expressed his views of Dr. Baker, Dr. Nichols, and in respect of Dr. Nichols who took the view that more harm was caused by the father's removal than was caused by anything done by the father to Natasha. The Judge...

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3 cases
  • Re M and R (Child Abuse: Evidence)
    • United Kingdom
    • Court of Appeal (Civil Division)
    • 21 May 1996
    ...seems to us that the obiter remarks were made per incuriam. 78Two further decisions of the Court of Appeal have followed that authority ( Re FS (Minors) unreported 7th April 1995 (with dicta as to "usurping the function of the judge"), and Re N (a Minor) unreported 14th March 1996). Unfortu......
  • Eastern Health Board v M.K.; Re M., S. and W
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    • Supreme Court
    • 29 January 1999
    ...Cases mentioned in this report:- Ares v. Venner [1970] S.C.R. 608. Cullen v. Clarke [1963] I.R. 368. Re F.S. (Child Abuse: Evidence) [1996] 2 F.L.R. 158. Re G. No. 2 (A Minor) (Child Abuse: Evidence) [1988] 1 F.L.R. 314. G. v. An Bord Uchtála [1980] I.R. 32; (1978) 113 I.L.T.R. 25. H. v H. ......
  • Eastern Health Board v MK and MK
    • Ireland
    • Supreme Court
    • 29 January 1999
    ...2 RSC 531 SUGDEN V LORD SAINT LEONARDS 1876 1 PD 241 MYERS V DPP 1965 AC 1001 ARES V VENNER 1970 SER 608 S (F) (CHILD ABUSE EVIDENCE) 1996 2 FLR 158 Synopsis Evidence Wardship proceedings; hearsay evidence; allegations of sexual abuse against father; allegations made initially to speech th......

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