M (A Child)

In appellate review of a family fact-finding judgment, the question is whether, read as a whole, the judgment identifies the evidence accepted, explains what is taken from it, states the resulting findings, and addresses the essence of the case and its key questions. A judge need not reproduce all the evidence or address every subsidiary submission expressly. A child may describe unfamiliar sexual abuse in childlike terms. Apparent differences between penetration and non-penetrative contact, including the use of “in” and “on”, are matters for evaluation and do not automatically prevent a finding. Omissions such as failing expressly to disbelieve the alleged perpetrator or to compare the finding with a criminal acquittal do not necessarily make the decision unsafe where the overall reasoning and evidence support the result.

Mr H appealed against a finding of fact made by Her Honour Judge Boye at the Central Family Court on 18 September 2017 in care proceedings concerning six children. The judge found that he had sexually abused K, a child connected with the family, by rubbing his penis against her bottom. The local authority had initially advanced penetration and non-penetrative abuse in the alternative.

The appeal challenged the adequacy of the judge’s reasoning. It was argued that K’s ABE interview amounted to a clear allegation of penetration, that the judge had substituted a different allegation based on the mother’s evidence, and that the judge had failed sufficiently to assess the evidence, the criminal proceedings, and other allegations. The central issue was whether the finding was open to the judge on the evidence and whether her reasons were sufficient.

1. Appeal dismissed. Lord Justice Peter Jackson gave the principal judgment, with Lord Justice Beatson and Lord Justice McFarlane agreeing.
2. The applicable standard for reviewing the adequacy of a fact-finding judgment was stated by Black LJ in Re Jane (A Child) (Care Proceedings: Adequacy of Judge’s Findings and Reasoning) [2013] EWCA Civ. 1685. A judgment need not reproduce all the evidence. It must sufficiently identify the evidence accepted, what is taken from it, the findings based on it, and the key questions addressed. The judgment in this case, although short and not closely analytical, withstood forensic scrutiny when read as a whole.
3. The judge was entitled to find that K was describing an unfamiliar sexually abusive event in childlike language. Her account contained context, detail, consistency and a convincing narrative. The apparent distinction between describing conduct as occurring “in” or “on” her bottom was not decisive. The judge was entitled to conclude that there was no serious discrepancy between K’s account and the account understood by her mother.
4. The adult evidence was relevant to whether K had been coached and whether family distress had contaminated her evidence. The judge rejected those possibilities and was entitled to accept evidence that Mr H had made admissions. Her decision not to make a finding on another allegation did not undermine her assessment of K in relation to the allegation proved.
5. It would have been preferable for the judge to state expressly that she did not believe Mr H and to explain why the criminal acquittal did not prevent the family-court finding. Those omissions were not significant. The criminal proceedings involved a different standard of proof and penetration was an essential ingredient of the rape charge. The judge had credible evidence sufficient to support her conclusion.

1. Court of Appeal (Civil Division) dismissed Mr H’s appeal against the fact-finding decision.
2. Central Family Court Her Honour Judge Boye made the relevant finding of fact on 18 September 2017 following a ten-day fact-finding hearing.