W (Children)

In an application challenging fact-finding decisions in care proceedings, the appellate court will not interfere merely because the first-instance judge could have given fuller reasons, or because evidence was hearsay and had not been tested directly. The question is whether the findings were reasonably open on the evidence as a whole, with proper regard to evidential limitations. A judge may accept limited parts of a child’s account while rejecting more serious allegations by the same child, provided the evaluation is careful and critical. Possible contamination, delay in complaint and the absence of direct cross-examination affect weight but do not create an automatic bar to findings. A reasons challenge should identify specific material said to have been overlooked.

During care proceedings brought by Neath and Port Talbot County Council concerning A and C, the Swansea County Court held a six-day fact-finding hearing. On 8 January 2008, Her Honour Judge Parry found that the grandfather had indecently touched S in 1999 or 2000 and had engaged in two indecent incidents involving A in August 2006. She rejected or failed to prove the more serious allegations, including allegations concerning E, S and C.

The grandfather sought permission to appeal against the adverse findings. He challenged the treatment of hearsay evidence, possible contamination between the children’s accounts, delay in complaint, his limited opportunity to cross-examine A, and the judge’s treatment of his own evidence. The central issue was whether the findings were open to the judge on the evidence.

Lord Justice Wilson gave the principal reasons. Lord Justice Thorpe and Mr Justice Charles agreed, with Charles J adding observations on the treatment of the grandfather’s evidence. Permission to appeal was refused.

1. The judge had undertaken a careful and critical evaluation of the allegations. Her analysis of the requisite standard of proof, informed by Lord Nicholls’s classic passage in Re H (Minors) (Sexual Abuse: Standard of Proof) [1996] AC 563 at 596, was not open to criticism.
2. The absence of direct cross-examination of A in the care proceedings did not prevent reliance on her hearsay evidence. The judge had recognised the resulting limitation and had the benefit of the transcript of A’s evidence and cross-examination in the criminal proceedings. Her account was clear, specific, substantially consistent and sufficiently detailed to support the findings. The approach reflected the guidance discussed in LM v Medway Council [2007] 1 FLR 1698.
3. The judge was entitled to take account of possible contamination between the children, delay in complaint and inconsistencies in the way an allegation was first reported. Those matters had been identified and weighed. They did not require rejection of A’s evidence, particularly since the allegations accepted were comparatively limited.
4. The judge was entitled to accept the limited finding concerning S while rejecting his more serious allegations. The earlier complaint, the surrounding evidence, the grandfather’s subsequent loss of unsupervised babysitting and A’s evidence provided a sufficient evidential basis.
5. Although fuller treatment of the grandfather’s evidence would have been preferable, no specific material said to have been overlooked was identified. A fair reading of the judgment supported the inference that the judge regarded his denial of A’s allegations as unconvincing.

The proposed appeal had no arguable foundation. The application was refused.

• Court of Appeal (Civil Division): On 22 April 2008, permission to appeal from the Swansea County Court’s fact-finding decision was refused.
• Swansea County Court: On 8 January 2008, Her Honour Judge Parry made findings of indecent touching against the grandfather concerning S and findings concerning two incidents involving A, while rejecting or not proving other allegations.