W (A Child)

An appellate court should not interfere with a family judge’s findings of fact where the judge has heard the principal witnesses, considered the relevant circumstantial evidence and reached clear conclusions on credibility and reliability. A private-law fact-finding determination is not equivalent to a criminal conviction. Its significance in future professional assessments may be explained by reference to contrary police or specialist evidence. Nevertheless, the determination remains binding between the parties for future litigation and must not be re-opened or reinvestigated. Future work should focus on the child’s relationship with the parent and may require expert assessment of the underlying family difficulties.

The father appealed from a fact-finding decision of the Oxford County Court concerning allegations that he had sexually touched his daughter and her half-brother. The judge accepted the mother’s evidence, rejected the father’s account, and relied substantially on the evidence of a paediatrician concerning the daughter’s anxiety.

The father challenged the consistency and reliability of the children’s disclosures, the weight given to the paediatric evidence, and the judge’s credibility findings following a short period of oral evidence. The appeal also raised the practical consequences of the findings for future contact and parenting. The central issue was whether the judge’s conclusions were legally or evidentially unsafe so as to justify appellate intervention.

Appeal dismissed. Thorpe LJ delivered the substantive judgment; Thomas LJ and Coleridge J agreed.

1. The criticisms of the fact-finding judge were unfounded. The judge had heard the mother and father, considered the relevant circumstantial matters, assessed the paediatric evidence and reached firm conclusions on credibility. The appellate court’s task did not permit it to interfere merely because the appellant could identify inconsistencies or evidence capable of supporting another conclusion.
2. The judge was entitled, and required, to consider Dr Robertson’s experienced assessment that the child displayed anxiety or fear at the highest level encountered by the doctor. The absence of physical signs did not prevent the judge from giving weight to that evidence.
3. The finding in private-law proceedings was materially different from a conviction following a criminal trial before a jury. It was possible that another judge might have reached a different conclusion. In later professional discussions, the father could draw attention to the contrary views of the police and the specialist service involved with the child.
4. Future proceedings should concentrate on the parent’s relationship with the daughter and on the underlying dysfunction in the family. Expert assessment of the root cause was required. Any expert undertaking that work would have to take account of the existing fact-finding conclusion, which was not open to challenge or reinvestigation in future litigation between the parties.
5. The appeal was dismissed. The court expressed the hope that the finding would not unduly overshadow the father’s future relationship with his daughter or his prospects as a parent.

1. Court of Appeal (Civil Division): The appeal was dismissed, as reported at [2007] EWCA Civ 523.
2. Oxford County Court: His Honour Judge Compston made adverse findings against the father concerning sexual touching of the children and initially expressed a view that supervised contact might be restored.