B (Children)

An appellate court should not interfere with a trial judge’s assessment of a witness where the judge considered the witness’s alleged psychological difficulties, observed the witness giving evidence and gave reasons for finding the witness reliable. Hearsay is admissible in family proceedings, but its provenance and weight must be assessed. Double hearsay may safely be relied on where there is no apparent motive to fabricate and it is consistent with other evidence. Findings must remain anchored in the evidence. A finding based on records which do not support the asserted consistency, and on reasoning which does not logically support the conclusion, is unsafe. The Court of Appeal therefore removed one finding concerning physical handling while preserving the remainder of the fact-finding decision.

Family proceedings concerned arrangements for two children following the end of their parents’ relationship. A fact-finding hearing before His Honour Judge Levey examined allegations by the mother and her teenage daughter, M, concerning sexualised behaviour, physical handling and related conduct. The father appealed findings accepted by the judge. Permission was granted on two grounds: failure to account properly for M’s possible psychological difficulties, and improper treatment of corroborative evidence, including hearsay. During argument, the father also challenged the finding concerning an incident on 7 November 2011. Findings concerning the condition of the former home and harassment were not challenged. The central issues were whether the credibility assessment and treatment of corroborative evidence were open to the judge, and whether the finding about the 7 November incident was safe.

1. Disposition. The appeal was dismissed, subject to removal of the finding concerning the 7 November incident and clarification that two other matters were not to be treated as corroborative evidence or as demonstrating improper attitudes.
2. The judge was entitled to accept M as a reliable witness. He had expressly considered the evidence concerning her behaviour and possible psychological difficulties, had seen and heard her give evidence and had given reasons for rejecting the father’s account. No material fresh evidence showed that her psychological condition was more serious than the material before the judge suggested. The appellate court therefore had no proper basis for interfering with that credibility assessment.
3. Hearsay evidence was admissible in family proceedings under the Children (Admissibility of Hearsay Evidence) Order 1993. Its provenance and weight required careful assessment. By analogy with section 4 of the Civil Evidence Act 1995, relevant considerations included whether the maker had a motive to misrepresent. The judge was entitled to rely on the babysitter evidence, which was in effect double hearsay, because there was no apparent motive to fabricate and it was consistent with the father’s conduct on other occasions. The father’s admissions were also admissible as admissions against interest.
4. The findings about the thong incident and the personal letter from a student could not properly be treated as corroboration or as evidence of the concerns recorded in the schedule. Those matters were either not established or did not amount to improper conduct of the relevant kind.
5. The finding about the 7 November incident was unsafe. The police record did not support the asserted consistency relied on by the judge and was more consistent with the father’s account. The medical record also did not reproduce M’s later account, and the reasoning concerning the backpack did not logically support the finding. The entry was therefore removed. The possible significance of the father’s own account remained for the welfare hearing.

1. Court of Appeal (Civil Division) — In [2014] EWCA Civ 1623, the court dismissed the appeal subject to removing one factual finding and clarifying the scope of two other matters.
2. Portsmouth Family Court — His Honour Judge Levey conducted a fact-finding hearing and recorded findings concerning allegations made by the mother and M in a schedule to his order.