A-H (Children)

In a child sexual-abuse fact-finding appeal, the absence of ano-genital signs is neutral: it neither supports nor negates the allegation. In a physically mature child, tissue injury may heal, and the interval since the last alleged episode may mean that no signs are expected. A challenge that medical guidance was incompletely presented will not justify a fresh investigation or retrial where the point could have been addressed at trial, the report was available in sufficient time, and oral evidence dealt with the alleged omission. Parties must obtain relevant public guidance and put criticisms to the witness below. A claim of professional partiality raised for the first time on appeal is not a proper basis for appellate intervention.

The father and mother appealed from findings by Baker J in the Principal Registry Family Division. After a fact-finding hearing in February 2012, with judgments in March and April, the judge concluded that the eldest child, T, had been sexually abused by her stepfather on repeated occasions between the ages of 11 and 13.

The appeal focused on the evidence of Dr Smith, the paediatrician who examined T. The appellants argued that her report presented the relevant 2008 medical guidance selectively and failed to address research suggesting that repeated penetration would commonly leave physical signs. They contended that this impaired the conduct of the trial and required the investigation and fact-finding process to be undertaken again. The central issue was whether the medical evidence and the alleged procedural shortcomings justified appellate intervention.

The Court of Appeal dismissed the appeal. Lord Justice Thorpe gave the principal judgment, with which Lady Justice Rafferty and Lord Justice Kitchin agreed.

1. The appeal ultimately rested on criticism of Dr Smith’s report and evidence. The appellants relied on the omission of some material from the 2008 guidance of the Royal College of Paediatrics and Child Health, particularly research concerning repeated penile penetration and the likelihood of physical signs.
2. The alleged omission did not establish that the trial had miscarried. The report had been available to the appellants’ solicitors for nearly ten months. No application had been made for disclosure of the publicly available guidance or for further expert evidence. Although the relevant ground was added to the appeal late, the full oral evidence was available to the court and did not support a rehearing.
3. Dr Smith had conducted a thorough genital examination. Her oral evidence explained that, in a physically mature child, intercourse could occur without lasting physical signs. Any tissue damage could heal, and the period of several weeks since the last reported episode meant that no changes need be expected. The number of alleged occasions did not alter her opinion. The medical evidence therefore neither supported nor negated the allegation.
4. There was no sufficient basis to criticise Dr Smith’s professional impartiality. That criticism had not been put to her at trial. Nor was there any basis for ordering a fresh investigation or retrial. The court additionally described the initial report as an exemplary model, but that observation was not necessary to the disposition.

Order: appeal dismissed.

1. Court of Appeal (Civil Division): [2013] EWCA Civ 282 dismissed the father’s and mother’s appeal.
2. Principal Registry Family Division: Baker J conducted the fact-finding hearing in February 2012 and gave judgments in March and April 2012, finding that T had suffered sexual abuse by her stepfather.