D (Children)

In care proceedings, findings of direct sexual abuse must be based on careful, allegation-by-allegation analysis. A pervasive atmosphere of sexual misconduct within a household cannot supply missing cogency or consistency in evidence against a particular alleged perpetrator. Corroboration is not indispensable, but the evidence must be scrutinised for internal coherence and consistency. An appellate court may intervene where a trial judgment is logically inconsistent, fails to explain material evidential choices, or wrongly discounts relevant evidence. Contact should be remitted where changed circumstances mean that the appellate court cannot safely determine the children’s present best interests.

The father appealed from Leeds County Court proceedings in which the threshold under section 31 of the Children Act 1989 was found satisfied. Care orders were made for the four children, and the youngest child was freed for adoption. The judge’s schedule recorded findings including direct sexual abuse by the father. The father challenged most of those findings and sought defined monthly contact. He did not appeal the threshold finding, the care orders, the findings concerning the mother, or the adoption decision. The central issues were whether the findings against the father could safely stand and whether contact should be ordered by the Court of Appeal or reconsidered below.

1. Majority disposition. Ward LJ, with whom Sir William Aldous agreed, allowed the appeal. The majority held that it was unsafe to sustain findings that the father had directly sexually abused any of the children. The unappealed threshold finding, care orders, adoption order for T, and non-direct findings such as exposure to pornography and the parents’ sexual activity in the children’s presence were not disturbed.
2. Form of appeal and orders. The Court applied the principle in Lake v Lake [1955] P.337 that an appeal is against the formal order disposing of proceedings, rather than findings appearing only in the reasons. The same principle applied to County Court appeals under section 77 of the County Courts Act 1984. Where fact-finding and disposal occur at one hearing, a detailed schedule need not be attached to the order. Where fact-finding is preliminary, the issues should be framed and determined by an order capable of appeal. Transcripts should remain readily available, consistently with Re O and N; Re B [2003] UK HL 18; [2003] 1 FLR 1169.
3. Appellate review. Deference to the trial judge’s assessment of primary facts remains important. Intervention was nevertheless justified because the judgment was internally inconsistent, gave inadequate reasons for preferring one child’s account over another, and wrongly treated the police interviews as having no evidential value. The appellate court could draw its own inferences from the primary facts while applying the high standard of proof required in such a case.
4. Evidence. Each allegation of direct sexual harm required separate consideration. The general sexual dysfunction of the household could not replace reliable evidence of a particular act by the father. The term boogie, recorded by an untrained interviewer as equivalent to sex, did not establish sexual intercourse. The oral-sex allegation was unsupported by direct observation and contradicted by an immediate denial. The evidence concerning indecent touching and the slam-down game was also insufficiently cogent in the majority’s view.
5. Contact. The contact decision was set aside or discharged if an order had been drawn. It was remitted to Judge Cahill Q.C., because the Court of Appeal was not in a sufficient position, months after placement, to determine the children’s current best interests.
6. Minority reasoning. Clarke LJ agreed that the findings of intercourse and oral sex could not stand, but would have upheld findings of indecent touching and participation in the slam-down game. He considered that the trial judge was entitled to accept the children’s accounts and reject the father’s evidence. Sir William Aldous added nothing.

• Court of Appeal (Civil Division) — In [2005] EWCA Civ 825, the appeal was allowed. Findings of direct sexual abuse by the father were set aside, and contact was remitted for reconsideration.
• Leeds County Court — On 15 September 2004, Her Honour Judge Cahill Q.C. found the threshold under section 31 of the Children Act 1989 satisfied, made care orders, recorded findings in a schedule, and approved adoption arrangements for T.