W-C-T (Children)

An appellate court should rarely interfere with a trial judge’s primary findings of fact, especially where they depend on credibility assessments. Intervention is justified only where there was no evidence, the evidence was misunderstood, or no reasonable judge could have reached the conclusion. In fact-finding hearings concerning allegations of child sexual abuse, deficiencies in recording, investigation or ABE interviewing require careful consideration but do not automatically invalidate a finding. A judge may accept part of a witness’s evidence despite finding the witness dishonest, and may consider whether a lie sheds light on the underlying facts. The essential question is whether the judge meaningfully addressed the risks of coaching, contamination, pressure, suggestibility and investigative shortcomings. Where those matters were considered and the conclusion was properly open, the appellate court should not disturb it.

Care proceedings concerned four children and were preceded by the father’s application for contact. The Family Court at Coventry found that the father had inappropriately touched the eldest child, relying principally on statements made by the child in 2015 and 2016. The judge also found that the paternal grandmother had attempted to divert the allegation towards another man.

The father appealed against the finding of fact. He alleged inadequate analysis of the child’s statements, failures in the investigation and ABE interview, improper reliance on dishonest adult witnesses, and reversal of the burden of proof. The central issue was whether the findings were unsupported or unsafe such that the Court of Appeal should interfere.

Appeal dismissed. Peter Jackson LJ gave the judgment, with Moylan LJ and Baker LJ agreeing.

1. The appellate court applied the approach in In Re B (A Child) [2013] UKSC 33. Primary findings of fact, particularly findings based on the assessment of witnesses, should be disturbed only rarely. Intervention is confined to cases where there was no evidence, the evidence was misunderstood, or no reasonable judge could have reached the conclusion.
2. The trial judge was entitled to find that the child’s statements had been made and were truthful, notwithstanding their lack of detail and the child’s suggestibility and acquiescence. The judge had identified the relevant warning signs and assessed the evidence in the round. The conclusion was properly open to her.
3. A judge is not required to disregard all of a witness’s evidence merely because another part of the evidence is dishonest. It was open to the judge to conclude that the grandmother had lied to protect her son and that the circumstances of the lie nevertheless shed light on the truth of the child’s allegation.
4. The investigation and ABE interview contained significant deficiencies, including delay, repeated questioning, poor interview conditions, leading questions and limited free narrative. Such deficiencies require particular care and faithful adherence to the relevant guidance. They do not automatically render the evidence unusable or compromise a finding where the judge has engaged meaningfully with the risks of coaching, contamination and pressure.
5. Although the judge had taken a broad view of some investigative shortcomings, her credibility assessments and overall evaluation were not undermined. She had considered the evidence both supporting and opposing the local authority’s case, and had not reversed the burden of proof. The finding of fact was therefore left undisturbed.

• Court of Appeal (Civil Division): The appeal against the Family Court’s finding of fact was dismissed: [2019] EWCA Civ 845.
• Family Court sitting at Coventry: HHJ Watson made findings of fact recorded in an order dated 16 November 2018.