S (A Child), Re

An appellate court should not interfere with first-instance factual findings where the judge was entitled to accept one witness’s evidence and reject another’s, particularly where credibility and demeanour were important. A finding that a parent failed to protect a child from the risk of sexual abuse may be understood, where the court has found no sexual abuse, as a failure to set proper sexual boundaries in response to the child’s sexualised behaviour. The assessment must proceed on that basis, together with any separate findings concerning drug misuse and neglect.

Care proceedings were brought by a local authority concerning a child whose behaviour had been persistently sexualised and whose father was alleged to have failed to protect her, neglected her and misused heroin. His Honour Judge Cliffe conducted a fact-finding hearing, found that the threshold under section 31 of the Children Act 1989 was met, but did not find that the child had been sexually abused.

The father sought permission to appeal against findings concerning sexualised behaviour, failure to protect, neglect and drug misuse. The central issue was whether the factual findings were properly open to the judge and whether the finding concerning failure to protect was inconsistent with the conclusion that no sexual abuse had been proved.

1. Application refused. There was no realistic prospect of successfully appealing the factual findings. The judge was entitled to rely on G.P.’s evidence, reject the father’s evidence and assess credibility in light of the oral evidence and the impression made by the witnesses at trial.
2. The rejection of the child’s allegations of sexual abuse did not prevent the judge from finding that she had displayed persistent and obsessive sexualised behaviour and that the father had responded inadequately to it. The repeated phrase that he had failed to protect her from the risk of sexual abuse was to be interpreted as meaning that he had failed to set proper sexual boundaries.
3. That interpretation avoided any contradiction between the finding that no sexual abuse had been proved and the finding concerning the father’s conduct. It was the basis on which the second, welfare stage of the proceedings was to proceed and should inform the assessment of the father’s capacity to care for the child.
4. The case was not confined to sexual boundaries. The assessment also had to address the judge’s findings concerning the father’s heroin use and the child’s neglect.
5. The Court agreed with Thorpe LJ’s written reasons refusing permission. The reasons and the judgment were directed to be released to the parties and the judge, subject to the existing restriction on disclosure or reporting.

• Court of Appeal (Civil Division): Refused the father’s application for permission to appeal against factual findings made in care proceedings.
• His Honour Judge Cliffe: Made findings of fact at the first limb of the care proceedings, held that the threshold under section 31 of the Children Act 1989 was met, and directed that the proceedings continue to the welfare stage.