H (A Child), Re

An appellate court should interfere with a trial judge’s findings of fact based on oral evidence only in exceptional circumstances. The trial judge’s evaluation of witnesses and balancing of conflicting evidence ordinarily falls within the permissible range, particularly where the judge heard the witnesses. Defects in children’s ABE interviews do not automatically make the evidence unusable. A judge may rely on a cogent core of evidence where the process, viewed as a whole, is not devoid of reliable material. That approach does not reverse the burden of proof in a quasi-inquisitorial fact-finding process. Where penetration is uncertain, the order should record that no finding of penetration is made.

The appeal concerned findings of fact made by Peter Jackson J on 1 March 2013 against A, a young man living in the maternal grandmother’s household. The findings were relevant to whether a baby, B, could safely be cared for by the maternal grandmother or should be placed for adoption. The judge approved the local authority’s care plan for adoption and made a placement order.

A sought permission to appeal, arguing that the judge had wrongly relied on seriously flawed ABE interviews of three cousins and that the resulting findings were unsafe. A separate jurisdictional issue concerning an intervenor’s ability to appeal findings of fact was not decided. The central issue was whether the interview defects required the findings to be set aside.

1. Permission and disposition. Permission to appeal was refused and the appeal was dismissed. The court corrected the order so that it did not record any finding that significant penetration had occurred.
2. ABE interviews and fact-finding. The interviews contained serious defects, including leading questions, inadequate preparation, lack of free recall and possible contamination from earlier discussions. Those defects did not necessarily make the evidence wholly unreliable. The trial judge was entitled to identify a cogent core of truth, assess it against the evidence as a whole, and rely on it unless the entire interview process was so flawed that no reliable material emerged.
3. Appellate restraint. An appeal court is not the fact-finding tribunal. It should interfere with findings based on oral testimony only in exceptional circumstances. The trial judge had the significant advantage of hearing the witnesses and was entitled to balance the competing evidence. The conclusion was not outside the permissible range for a fact-finder.
4. Burden of proof. The judge’s ability to reject aspects of a witness’s account while relying on other evidence did not reverse the burden of proof. The exercise remained one of determining what findings could properly be made in a binary, quasi-inquisitorial fact-finding process.
5. Penetration finding. The statement that it was unclear whether there had been significant penetration could not stand as a finding on that issue. As a matter of law, it had to be understood and recorded as meaning that no finding of penetration was made.

• Court of Appeal (Civil Division): Permission to appeal was refused and the appeal was dismissed. The order was corrected to remove any finding of significant penetration.
• Lancaster County Court: On 1 March 2013, Peter Jackson J made findings against A, approved a care plan for adoption and made a placement order concerning B.