M & L (Children)

In fact-finding proceedings involving serious allegations, the judge must assess the evidence as a whole against the civil standard. A respondent’s denials may initially appear sufficient to leave a doubt, but later findings that the respondent lied on other matters may properly alter the assessment of those denials. Such dishonesty may be used to evaluate the credibility of rival accounts, rather than as corroboration. The Court of Appeal left undecided whether an adult’s preference for oral sex could assist in proving forced sexual acts upon a child. The proposed appeal was not arguable and permission was refused.

The local authority applied for care orders concerning three girls. At the first stage of a split trial, the county court found that the father had sexually abused E, then aged between five and eight, and made or continued interim care orders. The father sought permission to appeal against those findings, arguing that the evidence was insufficient and that the judge’s reasoning was flawed.

The Court of Appeal considered whether the judge had been entitled to assess E’s evidence together with the father’s denials, his credibility in relation to allegations of violence against the mother, and other evidence concerning his sexual conduct. The central issue was whether the evidence as a whole justified the findings to the civil standard.

1. Permission refused. The application was dismissed unanimously. Lord Justice Wilson gave the principal judgment, with Lord Justice Holman and Mr Justice Ward agreeing.
2. The county court judge had initially considered E’s recorded interviews and live evidence, together with the father’s denials, and had found that this evidence alone left a doubt. Lord Justice Wilson construed the judgment as including the father’s evidence directly relating to E’s allegations. The judge was entitled to revisit the issue after considering the evidence as a whole.
3. The judge had made findings that the father had lied under oath about several serious matters involving violence and sexual violence towards the mother. Those findings were not used as corroboration of E’s account. They were used to assess the credibility of the rival accounts and the reliability of the father’s denials. Once his credibility had been destroyed, the denials no longer had the force which they appeared to have when considered at face value. The findings against him were therefore capable of satisfying the civil standard identified in Re H and others (Minors) (Sexual abuse: Standard of Proof) [1996] AC 563.
4. The enquiry whether material was probative required a process which an entirely rational, objective and fair-minded person might follow, as stated in O’Brien v The Chief Constable of South Wales Police [2005] 2 AC 534. It was unnecessary to decide whether the father’s preference for oral sex with an adult woman was probative of forcing a child to perform oral sex. That controversial issue was left for a future case in which it could not be avoided. The evidence concerning a sexual kiss given to a 16-year-old schoolgirl, if probative at all, would have carried very little weight.
5. Mr Justice Ward added that the judge’s conclusion showed that he rejected the father’s evidence generally, including his denial of the abuse. The application for permission to appeal was refused.

• Court of Appeal (Civil Division): Permission to appeal was refused and the application was dismissed.
• Kingston-upon-Hull County Court: His Honour Judge Barber found that the father had sexually abused E and made or continued interim care orders concerning the three children.