I-A (Children), Re

In child-protection fact-finding proceedings involving serious abuse allegations, the judge must conduct and explain a detailed, conscientious assessment of all the evidence. That includes the accused parent’s evidence, the credibility and context of the child’s accounts, and any retractions or pattern of fabrication. The judge must address each material point and assess the evidence against the specific allegations. An addendum which merely summarises omitted evidence without critical analysis may not cure the defect. Where specific allegations are relied upon, they should ordinarily be put to the witness so that they can be answered in whole or part. A fundamental failure to perform that task makes the findings and resulting order unsustainable.

The local authority became involved after K, aged 12, alleged that her stepfather had sexually touched her. The allegations followed earlier allegations of violence and included accounts which were later retracted or found inconsistent.

Following a trial, Her Honour Judge Norrie gave judgment in the Brighton County Court on 15 July 2011, finding essentially for the local authority. The judgment did not address the evidence of the mother and stepfather. An “Afterword” issued in November 2011 summarised some of the stepfather’s evidence but did not critically analyse it or address the mother’s evidence. The stepfather appealed, challenging the adequacy of the fact-finding process and the treatment of K’s credibility and the specific allegations.

Disposition

1. The appeal was allowed. Thorpe LJ held that the trial judge’s findings and order, particularly paragraph j) of the schedule, were unsustainable and were set aside. Etherton LJ agreed in a separate judgment, and Lewison LJ agreed with both judgments.
2. Serious allegations of sexual abuse required a detailed and conscientious examination of all the evidence. That included the quality and context of K’s accounts, her credibility, possible reasons for invention, the significance of partial retractions, and the evidence of the stepfather. The need for care was reinforced because K had not been cross-examined and had a persistent history of fabricating or retracting important allegations. The approach was consistent with the practice approved in Re T (Contact: Alienation) [2003] 1 FLR 531, requiring crucial points apparently overlooked to be addressed.
3. The initial judgment failed to address the stepfather’s evidence at all. The Afterword did not cure that fundamental defect because it lacked critical analysis and omitted material matters, including evidence about the child’s brother’s ability to leave his cot, whether K slept on the downstairs sofa, and the reasons for changing from nightdresses to pyjamas. The judge also underplayed the significance of inconsistencies in K’s allegation concerning two boys.
4. Etherton LJ observed that, in a case requiring detailed assessment of each allegation, each specific allegation should be put to the witness so that it could be refuted wholly or partly or explained in greater detail. Thorpe LJ also identified a material error in the judge’s account of evidence concerning whether the stepfather had said he would not touch K again.
5. Once the judgment was set aside, the appellate court could not conclude that the burden of proof had been discharged. The findings and order were therefore set aside.

1. Court of Appeal (Civil Division): In I-A (Children), Re, [2012] EWCA Civ 582, the appeal from the Brighton County Court was allowed. The findings and order were set aside.
2. Brighton County Court: Her Honour Judge Norrie gave judgment on 15 July 2011, finding essentially for the local authority. An “Afterword” was issued in November 2011 after concerns were raised about omissions in the judgment.