Y v W & Z (Rev 1)

In determining allegations of historic sexual abuse in private-law children proceedings, the court must decide each disputed fact on the balance of probabilities by evaluating the totality of the evidence. Evidence must not be assessed in separate compartments. Medical evidence may support a finding of abuse, but it should not predominate where it does not identify the perpetrator. The court should ordinarily address two questions: whether sexual abuse occurred and, if so, whether the evidence establishes the perpetrator’s identity. A finding that a witness has lied on one matter does not require rejection of all that witness’s evidence. Failure to prove an allegation does not, without more, establish that it was false.

The father applied for child arrangements and prohibited steps orders concerning Z. The mother sought child arrangements orders and permission to remove Z temporarily from the jurisdiction. During the proceedings, the court considered a historic allegation that, in 2000, the father had sexually abused X, the five-year-old daughter of a former partner. The allegation was relevant to the father’s applications concerning Z. The court heard evidence from the adults, considered X’s recorded interviews and records, and relied on undisputed expert evidence concerning gonorrhoea and hymenal injury. The central issue was whether the alleged abuse, and the father’s identity as perpetrator, were proved on the balance of probabilities.

1. Applicable approach. The burden lay on the party asserting each fact, and the standard was the balance of probabilities. In applying that standard, the court had to consider inherent probabilities where appropriate and evaluate all the evidence in its social, emotional, ethical and moral context. The evidence had to be assessed holistically, with each item considered in relation to the others: Re B [2008] UKHL 35; A County Council v A Mother, A Father, and X, Y and Z [2005] EWHC 31 Fam; Re T [2004] 2 FLR 838.
2. Where a child’s evidence was hearsay, the court had to account for the absence of cross-examination. Allegations of sexual abuse could be proved by a combination of direct, reported, expert medical and other evidence. Medical evidence compatible with abuse could not by itself identify the perpetrator and should not predominate: Re W (Children: Abuse Oral Evidence) [2010] 1 FLR 1485; Re IA (Allegations of Sexual Abuse) [2012] 2 FLR 837; Leeds City Council v YX and ZX (Assessment of Sexual Abuse) [2008] 2 FLR 869; Re Z (Minors: Child Abuse Evidence) [1989] 2 FLR 3.
3. The court adopted a two-stage inquiry: first, whether there was evidence of sexual abuse; and second, whether there was evidence identifying the perpetrator: Re H (A Minor); Re K (Minors) (Child Abuse: Evidence) [1989] 2 FLR 313 and Re H v R (Child: Sexual Abuse Standard of Proof) [1995] 1 FLR 643.
4. A conclusion that a witness had lied on one matter did not mean that all of the witness’s evidence was false. The court applied the approach in R v Lucas [1981] QB 720, taking account of the possible motives for lies. There was no intermediate finding that an event might have occurred: the fact was either proved or not proved. Failure to prove it did not, without more, establish falsity: Re M (Children) [2013] EWCA Civ 388.
5. Applying those principles, the court found that X had been penetratively sexually abused in or around November 1999, that the abuse caused the hymenal injury and gonorrhoea, and that the father was the perpetrator on the balance of probabilities. The court relied on the medical evidence, the father’s opportunity and unsupervised contact, X’s statements, and the father’s lies, while not relying on X’s later behavioural difficulties to identify the perpetrator. The court’s substantive findings were set out at paragraph 95.
6. The court also stressed the importance, in historic private-law abuse allegations, of early consideration of disclosure from local authorities and the police where the allegation may affect a child arrangements order, applying Re L (Contact: Domestic Violence), Re V (Contact: Domestic Violence), Re M (Contact: Domestic Violence) and Re H (Contact: Domestic Violence) [2000] FLR 134 and the relevant best-practice guidance.

First-instance determination of the factual allegations. No appellate history is stated in the judgment.