K (Children)

In private-law Children Act proceedings, a judge should not prematurely terminate a fact-finding hearing merely because a child’s account is inconsistently recorded, the evidence is difficult to evaluate, or a positive finding may be hard to make under the high standard of proof. Where the child’s evidence raises core concerns requiring investigation, the judge must hear the essential evidence and evaluate the wider issues, including the parents’ credibility. Procedural failures and differences in adults’ recollections may affect the weight of the evidence, but do not necessarily remove the need for judicial determination.

The appeal arose from private-law proceedings concerning the arrangements and responsibilities for three children after their parents’ separation. The central issue concerned whether the parties’ five-year-old daughter, E, had been exposed to inappropriate sexual behaviour by her father.

At Portsmouth County Court, Judge Marshall accepted a submission made after the evidence of the jointly instructed expert, Dr Weir. Although the expert considered inappropriate sexual experiences equally possible and equally possible not to have occurred, the judge concluded that the child’s initial disclosure and later interview were too inconsistent and unclear to justify continuing the fact-finding hearing. She vacated the remaining days listed for oral evidence.

The mother appealed. The Court of Appeal considered whether the judge had been entitled to stop the hearing at that stage, without hearing the school assistant and both parents, in circumstances where the child’s accounts contained identifiable core concerns.

1. Appeal allowed and case remitted. The Court of Appeal held that Judge Marshall had been premature in aborting the fact-finding fixture.
2. The absence of a contemporaneous record of the child’s first words, later recording deficiencies and differences in the adults’ recollections made the evidence unsatisfactory. They did not, however, negate the core concerns arising from the child’s words to the school assistant, the police and the memorandum interview.
3. The distinction drawn between the child saying that her father did rude things “to me” or “with it” was not, on the facts, a sufficient reason to stop the investigation. Either formulation suggested inappropriate exposure of a child to adult sexuality and required judicial determination.
4. The child’s statement that she was playing did not itself create a further difficulty. Considered with her description of emotional distress, it could suggest a defensive reaction rather than disprove the alleged experience.
5. Although the Court of Appeal recognised the trial judge’s wide discretion and the difficulty of making a positive finding under the high probative standards referred to in Re B (Minors) (Sexual Abuse: Standard of Proof) [2008] UKHL 35, it held that it was crucial, at a minimum, to hear the school assistant and both parents. The judge also needed to evaluate the parents in relation to the central allegation and the wider issues.
6. The parties were expected to agree a reduced programme for the remitted determination, limiting the essential evidence and reducing the time estimate.

• Court of Appeal (Civil Division): appeal allowed and the case remitted to the judge.
• Portsmouth County Court: Judge Marshall stopped the fact-finding hearing after the expert’s evidence and vacated the remaining days for oral evidence.