S (A Child: Findings of Fact)
| Jurisdiction | England & Wales |
| Judge | Lord Justice Peter Jackson,Lady Justice King,Lord Justice Lewison |
| Judgment Date | 31 March 2023 |
| Neutral Citation | [2023] EWCA Civ 346 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: CA-2023-000136 & CA-2023-000162 |
[2023] EWCA Civ 346
Lord Justice Lewison
Lady Justice King
and
Lord Justice Peter Jackson
Case No: CA-2023-000136 & CA-2023-000162
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE FAMILY COURT AT TRURO
HHJ Edward Richards
TR21C50014
Royal Courts of Justice
Strand, London, WC2A 2LL
Rawdon Crozier (instructed by Stephens Scown LLP) for the 1 st Appellant
William Higginson (instructed by Coodes Solicitors) for the Appellant Mother
Samuel Castlehouse (instructed by Cornwall Council) for the Respondent Local Authority
Charlie Barrass-Evans (instructed by Walters & Barbary Solicitors) for the Respondent Child by her Children's Guardian
Hearing date: 22 March 2023
Approved Judgment
This judgment was handed down remotely at 10.30am on 31 March 2023 by circulation to the parties or their representatives by e-mail and by release to the National Archives.
Overview
These appeals concern findings of fact made in care proceedings. The appellants are M and F2, the parents of C, a one-year-old girl. The findings concern K, who is M's daughter from her previous marriage with F1. The court found that K was sexually abused at the age of 5 or 6 by F2 and that M was aware of the abuse and failed to prevent or report it.
The background is that M and F1 married in 2013 and K was born in 2014. The marriage ended in 2018 and F1 then began to live with Ms Y, who has four children of her own. From March 2019, the arrangement was that K would spend the weekdays with M and the weekends with F1 and Ms Y. Relations between the two homes were acrimonious and in August 2019 M received a police caution for harassing F1 by text messages.
In March 2020, M began a relationship with F2. By June 2020, F2 was picking K up from school on occasions, and the school expressed concern to M about that. In August 2020, F1 called social services after seeing a red hand mark on K's bottom. Social services and the police made a joint visit, at which K made no allegations and spoke positively of F2. The police took no further action but in September 2020, after a social work assessment, K was made subject to a child protection plan under the category of neglect due to concern about parental conflict, exposure to M's declining mental health, and the unexplained mark. From that point on it was agreed that she would spend the weekdays with F1 and the weekends with M. In October 2020, F2 moved in with M.
In December 2020, F1 and Ms Y made reports to social services and the police that led to investigations and ultimately to these proceedings. Since then K has lived with F1 and Mrs Y.
When C was born in late 2021, the local authority brought proceedings and an interim care order was made. A psychological assessment concluded that M's cognitive functioning is in the borderline range. C and M were placed in a parent and child foster placement, which lasted until May 2022. Since then, C has been at home with M, with an order excluding F2 from the property.
Following a negative PAMS assessment by an independent social worker, the local authority's care plan has been for C to be adopted. A final hearing was originally listed for April 2022. However, the local authority then applied for an adjournment for there to be a fact-finding hearing to determine the level of risk posed by F2. That hearing did not take place until November 2022, when it lasted for five days, followed by written submissions.
The local authority's case was that F2 had sexually abused K on at least three occasions between March and December 2020 and that M knew and failed to protect and report. F2 and M each denied the allegations against them, and M took the position that she did not believe the allegations against F2 but awaited the court's judgment. The Children's Guardian adopted a neutral position. The judge, HHJ Edward Richards, handed down his judgment on 6 January 2023, making the findings sought by the local authority and listing a three-day final welfare hearing in June 2023. F2 and M each appealed; on 6 March 2023, I granted permission to appeal, and the appeals were heard on 22 March.
For the reasons that follow I have concluded that the appeals must be allowed. The evidence might have sustained findings against F2, but the judge's reasoning does not satisfactorily underpin his decision and the allegations against F2 must regrettably be retried. By contrast, the evidence was incapable of sustaining the findings against M and those allegations will therefore be dismissed, an outcome that Mr Castlehouse for the local authority realistically accepted was inevitable if M's appeal was allowed.
At the retrial of the allegations against F2 the court will reach its own conclusions and I will therefore only say what is necessary to explain why the appeals must succeed. The rehearing can probably be shortened because the court is unlikely to need to hear oral evidence from witnesses who gave what turned out to be uncontentious evidence. In particular, a number of witnesses from K's school spoke about what she had said to them after she had taken part in her first ABE interview. As the judge recorded at para. 120, it was not disputed that she said the things that they recorded. What matters is what if any weight should be given to those later statements, and that does not require the witnesses to be recalled. The essential points of their evidence might be summarised by the local authority and presented to the other parties in a notice to admit facts under FPR 2021 r. 22.15. Likewise, F2 eventually admitted, and the judge found at para. 71, that he had lied about an occasion when he was found hiding in M's garden. There has been no appeal from that finding and accordingly it could also form part of a notice to admit facts. It will then be a matter for the court to decide what relevance if any the lie and the underlying behaviour might have to the sexual abuse allegation.
The allegations against F2
The making of the child protection plan for K in September 2020 reflected a history of concern for her welfare that was charted in a chronology that was available to the judge. It is unnecessary to set out full details here, but these events formed the background for the allegations. For example:
1) K had been a premature baby and was reported to be at least 2 years behind her peers developmentally in most areas. The extent to which her delay was organic or environmental in origin is currently unclear.
2) There was a history of cross-allegations being made by F1 and M about their care of K.
3) When K was making a Father's Day card at school in June 2020, she drew a figure with a penis and then refused to talk about it.
4) There are also references stretching back to 2019 to K having had urinary infections or vaginal soreness/irritation, and on one of these occasions (6 October 2020) the GP directly asked her whether anyone had touched her. She said no, but later in the month the soreness was ongoing. Again, in December 2020, F1 twice took K to the GP with similar symptoms that were variously diagnosed as thrush or vulvo-vaginitis. On 21 December 2020, the GP consulted the Sexual Assault Referral Centre (SARC) and wrote to social services to request a strategy discussion.
The next day, 22 December 2020, K and Ms Y were in the bathroom. K, who had some history of constipation, was having difficulty going to the toilet. Ms Y's account was that K said “[F2] put his fingers in my bum hole”. F1's account was that he was outside the bathroom door and heard K say “it hurts like when [F2] does it”. Calls were then made to SARC, the NHS 111 number and the police. At trial, F2 pointed to the difference between the two accounts of what K had said and asked the judge to consider whether F1's report necessarily amounted to an allegation of sexual abuse.
On 23 December 2020, K underwent a medical examination. The physical findings were normal and neither confirmed nor refuted the possibility of digital penetration.
There was then a delay of some five weeks before the ABE interview process began, during which K remained with F1 and Ms Y. On 7 January 2021, M signed a written agreement to the effect that F2 would not be present in her home while K was there. On 8 January, after K had gone to stay with M, police visited and found F2 hiding in the garden. Since then, contact between K and M has taken place at a contact centre.
During the five-week period, there were several relevant occasions on which K was seen by professionals, including:
1) On 23 December 2020, social services and the police made a joint visit. Detective Constable S, the officer in the case, recorded that “K was asked about what she told Daddy about [F2]. She said he had put his finger in her bum.” It happened in the bathroom in Mummy's house and both her mother and F2 had been there. She said F2 was nice and was her favourite. By contrast, the social work record stated that “K was unable to repeat [the allegation] to the police and duty social worker at the time.”
2) On 11, 20 and 26 January 2021, K's social worker saw her at school. Nothing was directly said by K about F2.
3) On 22 January 2021, K told Ms D (safeguarding lead) that she had worries and secrets but could not tell them to her.
4) On 25 January 2021, K said to Ms V, a teacher at her school, that she was sad “because [F2] touches my private parts and I don't like it. I asked him to stop but he won't.”
5) On 27 January 2021, K said to Ms V: “I don't like [F2] poking me down here [pointing to her vaginal area] but I want to see mummy.”
These statements made by K to professionals were of potential significance because they were made after the initial reports but before the ABE interview process began.
The ABE process was led by DC S. She had been a child protection officer for...
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