M (A Child)

On an appeal from a family-court finding of fact, the question is whether the judge was entitled to reach the finding on the evidence, applying the appropriate standard of forensic scrutiny. A judgment need not reproduce all the evidence. It must identify the evidence accepted, the conclusions drawn from it, and the findings based on those conclusions. A child’s account may be accepted despite imperfect interviewing or childlike language where the judge assesses the account as truthful, consistent and supported by telling detail. Omissions in analysis do not necessarily make a finding unsafe if, read as a whole, the reasoning adequately addresses the central issues.

The appeal arose from a ten-day fact-finding hearing in care proceedings involving six children. Her Honour Judge Boye found that Mr H had sexually abused K, a child aged nine when the allegations arose, by rubbing his penis against her bottom. The judge rejected an allegation of anal penetration, notwithstanding language used by K during an ABE interview which could be understood in that way.

Mr H argued that the judge had substituted the mother’s account for K’s own allegation, failed to analyse the evidence adequately, and made an unsafe finding. The Local Authority supported the finding. The central issue was whether the judge’s reasons and evidential assessment were sufficient to sustain the finding.

1. Appeal dismissed. The judge was entitled to find that K was describing seriously abusive behaviour in a childlike way and that her account was true. The ABE interview was poorly conducted, but K’s disclosures contained a context, detailed descriptions, a convincing narrative and descriptions of feelings and sensations. The judge was entitled to assess whether the apparent discrepancy between K’s account and the account understood by the adults was real, and concluded that it was not ([32]).
2. The appellate standard was that stated by Black LJ in Re Jane (A Child) (Care Proceedings: Adequacy of Judge’s Findings and Reasoning) [2013] EWCA Civ 1685: a judge need not reproduce all the evidence, provided the judgment identifies the evidence accepted, what is taken from it, and the findings based upon it. The judgment must, taken as a whole, engage with the essence of the case and answer the key questions ([31]-[32]).
3. The adult evidence was material to whether there had been coaching or contamination. The judge addressed those risks and declined to make a separate finding where contamination was a concern. The absence of an explicit assessment of Mr H’s credibility, a cross-check against the criminal acquittal, and a wider assessment of K did not undermine the result. Those matters could have been dealt with more expressly, but the judgment remained sufficient when read as a whole ([34]-[38]).
4. The criminal acquittal did not determine the family-court finding. Penetration was an ingredient of the criminal charge, and the criminal and family proceedings applied different standards of proof. The finding was supported by credible evidence from K, adults who had not contaminated her account, and admissions made by Mr H ([37], [39]). Lord Justice Beatson and Lord Justice McFarlane agreed ([40]-[41]).

• Court of Appeal (Civil Division) — [2017] EWCA Civ 2445: appeal dismissed; the family-court finding of fact was upheld.
• Central Family Court — Her Honour Judge Boye made the finding of fact after a ten-day hearing on 18 September 2017. The lower-court decision’s citation is not stated in the judgment.