M-H (Children)

In children proceedings, a preliminary fact-finding judge may make a limited finding on the balance of probabilities even where wider allegations are unproved. The judge must distinguish supported facts from speculation and assess the evidence in its context. A finding is not impermissibly based on suspicion where its evidential basis is explained. In a split trial, the issues should be settled before the preliminary hearing and the resulting order should expressly determine each issue. In family appeals involving children, the lower court should consider whether urgency requires a shorter period for filing an appeal notice.

The father appealed from findings made by HHJ Horowitz QC in the Milton Keynes County Court concerning inappropriate sexual boundaries in relation to two children. The judge made limited findings, including that there had been some inappropriate touching of the younger child, and continued supervised contact while therapeutic work was pursued. The father argued that the judge had elevated suspicion into evidence and sought removal of the restrictions on contact. The Court of Appeal also considered the proper form of an order following a preliminary fact-finding hearing and the time for filing family appeal notices.

Permission to appeal was granted, but the appeal was dismissed. Lady Justice Smith agreed with Lord Justice Thorpe.

1. The contention that the judge had elevated suspicion into evidence was rejected. His conclusion concerning the younger child was cautious and limited. He rejected the more florid allegations where the evidential standard was not met. His finding of some inappropriate touching was nevertheless justified on the balance of probabilities by the child’s initial account, the context of the recent medically necessary circumcision, the disregard of appropriate boundaries concerning the elder child and the father’s habits.
2. The proposed therapeutic work and continued supervision reflected the limited nature of the findings and did not demonstrate any error in the fact-finding process. There was no sufficient basis for interfering with the order.
3. As a general practice in a split trial, the order directing the preliminary trial should settle the issues for determination. After hearing the evidence, the judge’s order should refer back to those issues and make an express finding on each. A clear record assists the parties, professionals involved in the case and any later investigation.
4. The absence of a substantive order embodying a preliminary finding does not prevent the Court of Appeal from entertaining and determining an appeal against that finding: Re V [2000] 1 WLR 790. The formal recording practice is therefore desirable but is not a technical precondition to an appeal.
5. The forthcoming amendment to the rules would permit the lower court to direct a period for filing an appeal notice that is longer or shorter than the general period. In children cases, the lower court should have regard to urgency and may direct a shorter period where appropriate.

Order: permission to appeal granted; appeal dismissed.

• Milton Keynes County Court — HHJ Horowitz QC gave judgment on 15 December 2005, making limited findings concerning inappropriate sexual boundaries and continuing supervised contact.
• Court of Appeal (Civil Division) — permission to appeal was granted and the consequential appeal was dismissed.