SB v A Local Authority & Ors

An appellate court reviewing factual findings must recognise the trial judge’s substantial advantage from seeing and hearing witnesses and understanding the evidence as a whole. Intervention requires a plainly wrong conclusion, supported by palpable error or errors making it unsustainable. A challenge based merely on preferring one witness over another is insufficient. In child-protection proceedings, findings may be made on the balance of probabilities even where a criminal prosecution has failed or has not been pursued. The court must assess whether the findings were open to the judge and adequately reasoned; it is immaterial that the appellate court might have reached a different conclusion.

The appeal was brought by a father against factual findings made by Pauffley J in care proceedings concerning his daughter G. Following a 14-day hearing, the judge recorded findings that he had exposed himself to G, touched her sexually and raped her on more than one occasion. The appeal challenged the reliability of those findings, focusing on an alleged watertight alibi for one date, the physical opportunity for abuse in a small shared home, and alleged contamination and inconsistencies in G’s account. The central issue was whether the judge was plainly wrong or had failed adequately to explain her reasoning, including her treatment of G’s learning disability and sequencing difficulties.

Appeal dismissed unanimously. The court had announced that result at the conclusion of the hearing and gave reasons in this judgment.

1. The trial judge had seen and heard the witnesses, immersed herself in the evidence and acquired an advantage which an appellate court could not reproduce from the transcript. The applicable threshold was that the judge had been plainly wrong, involving palpable error or errors which made the conclusion unsustainable. It was insufficient merely to argue that she should have preferred one witness to another. The court applied the approach in G v G [1985] 1 WLR 647 and Clarke-Hunt v Newcombe (1982) 4 FLR 482.
2. A judge exercising powers under the Children Act 1989 could make findings on the balance of probabilities even where a jury had acquitted the person concerned or criminal proceedings had not been pursued. Criminal proceedings concern punishment and guilt, whereas the civil proceedings concerned child protection and whether events had occurred. The relevant question was whether the evidence as a whole warranted the findings.
3. The judge had directed herself in line with Re B [2008] UKHL35 and had given herself a Lucas direction. Her treatment of the alleged alibi was permissible. G’s learning disability included difficulty sequencing events, so an apparently precise reference to the previous day did not necessarily identify the actual date. The judge had detailed knowledge of G’s abilities, considered the expert evidence and explained why the alibi did not undermine the core account.
4. The judge was also entitled to find that there had been ample opportunity for abuse despite the size and arrangement of the family home. The different rooms, sleeping arrangements and television viewing provided a sufficient evidential basis. The findings were open to the judge and fully explained. Whether the appellate judges would have reached the same conclusion was immaterial.

1. High Court of Justice, Family Division: Pauffley J, following a 14-day fact-finding hearing on 1 July 2011, made findings that the father had exposed himself to G, touched her sexually and raped her on more than one occasion. Permission to appeal was refused.
2. Court of Appeal (Civil Division): Thorpe LJ refused permission on paper on 19 October 2011. Ward LJ granted permission at an oral hearing on 26 January 2012. The appeal was dismissed on 10 October 2012.