T (A Child), Re

Appellate restraint does not prevent intervention where a first-instance judge’s reasoning fails to engage adequately with material evidence or contains a material logical gap. In allegations of child sexual abuse, the evidence must be assessed both separately and as a whole. This includes the child’s account, the timing and evolution of symptoms, medical evidence, known medical conditions, and the limitations or disagreements in expert opinion. A judge must not describe medical evidence as clear when it is materially equivocal. Significant counter-indications must be addressed rigorously because the credibility of an account may depend on how it fits the medical and chronological evidence.

The father appealed from a factual finding made by His Honour Judge Lancaster in the Family Court sitting at Carlisle on 7 May 2014. The judge found that, during staying contact, the father had caused an injury to his five-year-old daughter’s vulva by rubbing it sexually.

The appeal concerned the adequacy of the judge’s evaluation of the medical evidence, the timing and development of the child’s symptoms, the evidence of itching and scratching, and the child’s account. The medical evidence established that the child had lichen sclerosis et atrophicus, which explained most of the physical signs, but there was disagreement and uncertainty about the cause of a separate abrasion. The central issue was whether the finding of sexual abuse was safely open to the judge on the evidence.

1. Appeal allowed. The factual findings were set aside and the matter was remitted for fresh findings of fact before another judge. A directions hearing was directed to take place as soon as possible.
2. Lady Justice Black emphasised that the Court of Appeal should ordinarily respect a trial judge’s assessment of witness credibility. It could not interfere merely because it might have evaluated the evidence differently. The exclusion of evidence from the mother’s former partner was a case-management decision within the judge’s discretion and did not justify intervention.
3. However, the judge had overstated the clarity of the medical evidence. The doctors had not definitively excluded scratching as the cause of the abrasion. Their oral evidence recognised that such an injury could result from scratching, although it might be unusual, and there was a material divergence between their views about whether the abrasion could have been caused by a child’s fingernail.
4. In a case of this kind, the whole evidential picture had to be considered together and separately. Relevant matters included the child’s account, the medical evidence and its limitations, the evidence that she had been itching and scratching, and the evolution of her symptoms after contact. Particular attention was required for the gap between the child’s return from contact without reported soreness and the later appearance of symptoms. The first-instance reasoning on timing was too attenuated and left open the possibility that the judge had reasoned backwards from the assumed presence of an injury.
5. The defect was material. The finding did not rest on the child’s account alone, and the credibility of that account depended on its consistency with the medical evidence and the chronology. The Court of Appeal did not conclude that a finding of sexual abuse was impossible, but the existing reasoning could not safely support it.
6. The court also observed that paediatric advice about how a child with lichen sclerosis et atrophicus might respond, including whether scratching could produce such a lesion, would have been of the greatest assistance and might have been indispensable. Lord Justice Floyd and Lord Justice Vos agreed with Lady Justice Black.

• Court of Appeal (Civil Division): Appeal from the Family Court was allowed. The factual findings were set aside and the matter was remitted for fresh findings before another judge.
• Family Court sitting at Carlisle: His Honour Judge Lancaster made the challenged factual finding on 7 May 2014 in private law proceedings concerning the child.