J-L (Children)

A fact-finding judge must keep findings within what the evidence can properly support. Concern about children’s exposure to an unsuitable home environment does not justify an express finding of sexual conduct where the underlying evidence is insufficient. On appeal, wording unsupported by the evidence may be struck out. Any replacement wording should be agreed by the parties or determined by the lower court, rather than reconstructed by the Court of Appeal without agreement.

The mother appealed from a finding made by HHJ Rawkins during ongoing care proceedings concerning her three daughters. The judge rejected the local authority’s allegations of direct sexual conduct by the mother, but made alternative findings that the children had witnessed inappropriate conduct, including explicit sexual conduct involving young persons or adults, and that the mother had failed to protect them.

The mother challenged the sexual-conduct wording. The local authority accepted that the judge had gone beyond what the evidence permitted. The central issue was whether that part of the alternative finding could properly stand.

1. The appeal was allowed. The Court of Appeal struck out the words from “including explicit sexual conduct” to “and/or adults” in the judge’s alternative finding.
2. Lord Justice McFarlane held that the judge had been entitled to remain concerned about the children’s circumstances and their exposure to adult behaviour while living in the mother’s home. However, the available evidence did not permit an express finding that the children had been exposed to and had witnessed sexual acts between young persons and adults. The judge had therefore gone further than the strength of the evidence allowed.
3. The Court of Appeal declined to insert substitute wording. In the absence of agreement, any words to fill the resulting gap were a matter for the parties and the lower court.
4. The case was to return to Blackburn County Court before HHJ Rawkins. The mother accepted that the section 31 threshold criteria were met and that HHJ Rawkins should continue hearing the proceedings.

Lord Justice Longmore agreed. The order was: appeal allowed.

• Court of Appeal (Civil Division): On appeal from Blackburn County Court, the appeal was allowed and the specified sexual-conduct wording was struck out: [2012] EWCA Civ 1832.
• Blackburn County Court: HHJ Rawkins made alternative findings during ongoing care proceedings concerning three children. The challenged wording formed part of those findings.