K (Children), Re

An appellate court will rarely interfere with a trial judge’s findings of primary fact. Intervention is justified only where the finding is unsupported by evidence, rests on a misunderstanding of the evidence, or is one that no reasonable judge could have reached. In disputed child-abuse allegations, there is no fixed evidential formula. The court must test the whole body of evidence and construct a sound chain of reasoning. Hearsay evidence from a child may suffice if it is carefully scrutinised and found reliable. Defects in a subsequent investigation do not necessarily undermine an allegation made before that investigation. The quality of the evidence, rather than its volume, is decisive. An appellate court may sever a peripheral finding that is too uncertain to be safely made, while dismissing the appeal against the central findings.

Following a four-day fact-finding hearing in care proceedings, Her Honour Judge Edwards found that the appellant father had physically and sexually abused his six-year-old daughter and that the family circumstances had caused or risked significant harm to the children. The father did not challenge the physical-harm findings but appealed the finding of sexual harm. He argued that the allegation rested on a single hearsay account, was not repeated, followed a defective investigation, and was contradicted by later accounts. He also challenged a finding that he had been sexually aroused during contact. The central issue was whether the evidence entitled the trial judge to find the sexual-abuse allegation proved and whether the contact-centre finding was sustainable.

1. Appeal dismissed in substance. The appeal was dismissed, but finding 8, concerning the father’s alleged sexual arousal during contact, was deleted because the evidence was too uncertain. That finding was peripheral and did not affect the central outcome.
2. The Court applied the stringent appellate approach stated in In re B (a child) [2013] UKSC 33 at [53]. An appellate court will rarely reverse a trial judge’s primary findings, particularly where the judge has seen and heard the witnesses. Intervention is confined to cases where there was no supporting evidence, the evidence was misunderstood, or no reasonable judge could have reached the conclusion.
3. The trial judge gave herself an appropriate legal direction and carefully addressed the risks associated with child evidence, hearsay, non-standard questioning and the defective investigation. Those defects did not undermine the central allegation because it had been made before the investigation began. The judge was entitled to accept Ms K as a truthful and reliable witness, notwithstanding variations between her accounts.
4. There is no rule requiring medical or direct physical evidence, or prescribing the volume of evidence needed to prove a disputed allegation. The court must evaluate all the evidence, test it thoroughly, and form a coherent chain of reasoning. A child’s initial account may be sufficient where its detail and reliability justify that conclusion. The relevant question was why the child made the allegation. The judge was entitled to reject the proposed alternative explanations and to treat the father’s lies and credibility as strengthening, rather than weakening, the inference that the allegation was true.
5. The central findings of sexual abuse and grooming were therefore open to the trial judge and were not shown to fall within the exceptional circumstances warranting appellate interference. The case was returned to the trial judge for any necessary welfare decisions.

• Court of Appeal (Civil Division): Appeal from the fact-finding decision of Her Honour Judge Edwards in care proceedings. The Court dismissed the appeal against the central sexual-abuse finding but directed deletion of finding 8.
• Cardiff Civil and Family Justice Centre: After a four-day fact-finding hearing, Her Honour Judge Edwards gave judgment on 6 November 2018 and found physical and sexual harm by the father, together with significant or threatened emotional harm to the children.