JFM v Neath Port Talbot Borough Council & Ors

In an appeal against findings of fact in care proceedings, there is no single prescribed method for assessing allegations of sexual abuse. The court must weigh all the evidence, applying the ordinary burden and standard of proof. Evidence obtained under Achieving Best Evidence guidance must be assessed for reliability, including weaknesses in the interviewing process.

An appellate court must give great weight to the trial judge’s assessment of witnesses and evidence. It reviews rather than retries the case. It must not substitute its own view merely because it might have assessed the evidence differently. A judge may accept some parts of a child’s account and reject others.

The appellant challenged findings made by Her Honour Judge Parry in consolidated care proceedings concerning three children. The county court found that the threshold criteria under section 31 of the Children Act 1989 were satisfied. It found, among other matters, that the appellant had sexually abused one child and caused physical and emotional harm to the children.

The challenge focused principally on the reliability of the child’s accounts, the conduct of her video interviews, alleged contamination of her evidence, the treatment of contradictory evidence, and the adequacy of the judge’s reasoning. Permission to appeal was granted, followed by the substantive appeal. The central issue was whether the findings were properly open to the trial judge on the evidence.

1. Appeal dismissed. The judge was entitled to find that the threshold criteria under section 31 of the Children Act 1989 were satisfied in relation to all three children.
2. There is no particular or prescribed method for deciding allegations of sexual abuse. The court must weigh the evidence as a whole, applying the burden and standard of proof identified in Re H (Minors) (sexual abuse: standard of proof) [1996] AC 563. The purpose of the Achieving Best Evidence guidance is to assist in obtaining reliable evidence, not to impose disciplinary rules. The judge must assess the evidence, including its weaknesses, on the facts of the case.
3. The trial judge was entitled to accept the foster carer’s recordings as accurate while assessing separately whether the child’s allegations were true. A child’s inability to provide a complete narrative does not itself make the account unreliable. The judge could accept the core allegation while rejecting other allegations that did not meet the requisite standard. The finding that several family members had been touched on the same occasion therefore did not require rejection of the finding that the child herself had been touched.
4. The judge had recognised inconsistencies in the child’s accounts and was entitled to rely on identified features supporting reliability, including accuracy on unrelated matters, age-appropriate language, consistency on the core allegations, lack of elaboration, an unprompted reference to secrecy, and corroborative material concerning the blanket incident. The judge was also entitled to reject the alleged contamination by the child’s brother as a factual issue.
5. The judge’s misquotation of Re W (Care: Threshold Criteria) [2007] EWCA Civ 102 did not amount to a misdirection. The judge’s own direction showed that she understood that physical assaults had to be assessed in the context of the whole family situation and that the statutory threshold depended on significant harm and likely future harm.
6. It would have been preferable for the judge expressly to assess the appellant’s credibility on the sexual-abuse issue, but that omission was not fatal. Nor was a detailed credibility analysis of other family witnesses required on the facts. The court also observed that expert evidence was not necessary to assess the child’s credibility in the video interviews.
7. Thorpe LJ agreed with Wall LJ’s reasons.

• Court of Appeal (Civil Division) — Permission to appeal was granted, but the appeal was dismissed. The court upheld the county court’s findings that the threshold criteria under section 31 of the Children Act 1989 were satisfied.
• Swansea County Court — Her Honour Judge Parry found the threshold criteria satisfied in relation to all three children and refused permission to appeal.