S (A Child), Re

In family fact-finding, a judge may accept some parts of a witness’s evidence and reject others, provided the conclusions are tenable and the reasoning is cogent. Serious allegations must be assessed after full consideration of all material evidence, with relevant evidence expressly addressed and its weight explained. An appellate court ordinarily leaves primary factual findings undisturbed, intervening where the reasoning is flawed or the conclusion was not open to the judge. The balance-of-probabilities standard is unchanged by an event’s inherent likelihood, although likelihood informs whether the standard is met. Similar-fact material may be excluded as a case-management decision where late disclosure, absence of the proposed witness, fairness, delay and probative value justify that course. The finding concerning the alleged assault on the child was remitted; the sexual-assault findings stood.

Private law proceedings concerned arrangements for an eight-year-old child. The mother alleged that the father had behaved in a controlling and violent manner, sexually assaulted her, and assaulted the child. A deputy High Court judge found some non-sexual abuse proved but rejected the sexual allegations and the alleged assault on the child.

The mother appealed on four grounds, challenging the treatment of evidence concerning the child and the father’s former partners, the assessment of credibility and chronology, and the fairness of the hearing. The central issues were whether the fact-finding reasoning was adequate, whether the sexual findings were inconsistent or unsafe, and whether the judge had been entitled to exclude or disregard the similar-fact material.

1. Disposition. The appeal was allowed in relation to the finding that the father had not assaulted the child. That finding was set aside and the issue was remitted for rehearing, preferably before another Circuit judge and, if possible, as part of the welfare hearing. The remainder of the appeal was dismissed.
2. The allegation concerning the child was serious and had to be determined after full consideration of all material bearing upon it. Although the weight of evidence was for the trial judge, the judge had to show that relevant material had been considered and explain what was made of it. The reasons did not adequately address the child’s apparently spontaneous and graphic account reported by the family support worker, the father’s conditional caution for batteries against other children, or whether the findings of violence towards the mother assisted in assessing the allegation.
3. There was no irreconcilable inconsistency in accepting some evidence from each parent while rejecting other evidence. Such sifting is permissible where the conclusions are tenable and the overall reasoning is cogent. The judge had not overlooked the chronology of the mother’s sexual allegations: his reference to June 2013 concerned her first report to the police, while he had also recognised the earlier statement made in October 2011. The appellate restraint described in Re T-B-N [2016] EWCA Civ 1098 applied, and no sufficient flaw in the sexual findings was shown.
4. The standard of proof was not altered by the likelihood of the alleged event. However, assessing whether the balance of probabilities was satisfied necessarily involved considering how likely the event was to have occurred.
5. The judge’s refusal to permit reliance on the former partner’s disputed material was a case-management decision. The relaxation of hearsay rules under the Children (Admissibility of Hearsay Evidence) Order 1993 did not make reliance upon the material mandatory. Relevant considerations included late notice, the absence of the proposed witness, the need for an adjournment, fairness to the father, delay, and the material’s potential probative value compared with prejudice. The court did not need to examine further the wider criminal propensity authority.

• Court of Appeal (Civil Division): Allowed the appeal concerning the alleged assault on the child, set aside that finding and remitted the issue for rehearing before another judge. Dismissed the remainder of the appeal.
• Taunton District Registry, deputy High Court judge: On 7 March 2016, found three allegations of non-sexual abuse proved but rejected the sexual allegations and the alleged assault on the child. A later clarification was given and permission to appeal was refused.