C (Children), Re

In family fact-finding proceedings, a judge must confine findings to the allegations and issues properly before the court. An impermissible propensity finding based on unproven allegations does not necessarily invalidate a primary finding. The appellate court should examine the judgment and any clarifying discussion together to decide whether the error actually tainted that finding. Where the primary finding is clearly and independently based on the complainant’s evidence and credibility, the improper findings may be removed while the primary finding is upheld. Remittal is unnecessary where the error has caused no such injustice.

The local authority brought public law proceedings concerning alleged sexual abuse of children. By the fact-finding hearing, the only allegation pursued concerned L. The allegations concerning S had been withdrawn, and the allegation concerning D had fallen away when supporting evidence was unavailable.

The county court nevertheless treated the allegations concerning S and D as corroborative, found a propensity to commit sexual touching, and relied on that propensity in finding that the respondent had abused L. In a subsequent discussion, the judge clarified that he would still have found L’s evidence truthful, although he had been more confident with D in the equation. The respondent appealed, contending that the error had tainted the primary finding.

Lord Justice Thorpe delivered the leading judgment. Lord Justice Wilson and Lord Justice Lawrence Collins agreed.

1. The judge’s findings concerning propensity and the alleged conduct towards D could not be supported. Those matters were not issues for determination: the local authority had withdrawn or abandoned them and had made clear that it sought only a finding concerning L.
2. The appellate court considered the county court judgment together with the discussion following judgment. That material showed that the judge had assessed L’s evidence separately, with particular attention to her credibility, and had reached a clear and strong conclusion that the essence of her allegations was true.
3. The judge’s clarification indicated that, even without D’s evidence, he would have found L’s evidence truthful on a balance of probabilities. The additional confidence produced by D did not demonstrate that the primary finding had in fact been tainted by the impermissible reasoning.
4. The appropriate correction was to remove the finding of propensity and the associated finding concerning D. It would have been unprincipled and unhelpful to remit the case when the error had not undermined the finding concerning L. The seriousness of the consequences for the respondent did not outweigh the importance of protecting children from the risk of abuse.

The appeal was dismissed in the formal order. Wilson LJ described it as allowed to the limited extent identified by Thorpe LJ, with the balance dismissed. The primary finding concerning L therefore stood.

• Coventry County Court: His Honour Judge Hooper QC conducted a fact-finding hearing and found that the respondent had abused L, relying in part on allegations concerning S and D and making a propensity finding.
• Court of Appeal (Civil Division): The court removed the unsupported propensity and D findings but upheld the primary finding concerning L. The formal order was appeal dismissed.