P (A Child), Re

In family fact-finding proceedings, a judge is not required to choose between detailed findings of particular acts and no finding at all. A limited general finding may be made where the evidence proves that lower-level allegation on the balance of probabilities, even though weaknesses prevent confident findings about the precise conduct. The judge must explain why the limited finding is justified and ensure it is not merely an expression of suspicion or an adverse conclusion built from evidence already rejected. On appeal, the finding should stand where the judgment is carefully structured, internally consistent, and the conclusion was open on the evidence and credibility assessments.

A local authority sought findings concerning alleged inappropriate sexual conduct by a father towards two young children. The children had already been placed in foster care after findings of physical abuse. Evidence from the foster carer's diary recorded statements by the younger child, who had been about three when removed from the father's care.

HHJ Masterman found sexually inappropriate behaviour involving the younger child, but could not identify with confidence conduct beyond sexually motivated touching. The father appealed from Newport County Court, arguing that the judge had been unable to make specific findings but had improperly used the same evidence to make a general finding. The central issue was whether that limited finding was legally and logically open on the evidence.

Lord Justice Thorpe delivered the judgment of the court. Lord Justice Etherton and Mr Justice Morgan agreed.

1. Appeal dismissed. The judge had not made a finding based on mere suspicion. His conclusion that sexually inappropriate behaviour had occurred was a distinct judicial finding.
2. The inability to make confident findings about particular acts did not prevent a finding at a lower level of generality. The judge was entitled to distinguish between evidence capable of establishing inappropriate sexual behaviour and evidence too weak to support precise findings about the conduct involved.
3. The first-instance reasoning was internally consistent. The judge had not rejected the evidential material and then revived it to support an adverse conclusion. Paragraphs 31 and 32 of the judgment explained why the specific allegations were not established with sufficient confidence while the lower-level allegation was proved.
4. The finding was open to the judge on the reliable account of the foster mother and the father's poor credibility. The court emphasised that the judge had carefully weighed evidence favourable and adverse to the father, including the danger of applying adult interpretations too literally to a young child's language.

The finding involving the younger child was therefore upheld and the appeal was dismissed.

• Court of Appeal (Civil Division): The appeal from Newport County Court was dismissed on 20 May 2010. [2010] EWCA Civ 672
• Newport County Court: HHJ Masterman delivered judgment after a two-day fact-finding hearing and found sexually inappropriate behaviour involving the younger child, without making confident findings about more specific conduct.