KW v ST

In an appeal against a finding of sexual abuse in family proceedings, the appellate court must assess the reliability of the finding as a whole. Physical findings which are merely consistent with abuse are not probative without more. The court must carefully evaluate the circumstances in which a very young child’s account emerged, including leading or suggestive questioning, ambiguity in the child’s terminology, unreliable pre-interview material and the absence of a disclosure during an appropriately conducted ABE interview. The burden of proof remains on the party alleging abuse; a respondent’s acceptance that medical findings exist does not prove their cause. Where cumulative errors or omissions create a real risk that a grave finding is unreliable, the finding should be set aside and the matter reheard.

The parents had separated and their daughter, born in August 2015, had regular staying contact with her father. After a weekend with him shortly after her third birthday, the mother reported statements which she understood as alleging sexual interference. A medical examination identified vaginal lacerations said to be consistent with, but not probative of, abuse. The child later made potentially relevant remarks during an unrecorded pre-interview session, but made no disclosure during the recorded ABE interview.

A circuit judge found that the father had, on one occasion, poked his finger into the child’s vagina. The father appealed, challenging the reliability of that finding. The central issue was whether the judge’s evaluation of the evidence could safely support a grave finding of sexual abuse.

1. Appeal allowed. The finding of fact made on 14 June 2019 was set aside. The matter was remitted for a complete rehearing before a different judge.
2. The appellate court identified no single decisive error. The cumulative effect of several matters created a firm and substantial concern that the finding was unreliable. The medical examination DVD had not been produced or independently assessed, although the medical evidence had been treated as critical, apparently decisive, to the original conclusion. The doctor’s findings were only consistent with an abusive act and were not probative of one.
3. The initial account followed a highly suggestive observation by the mother linking contact with the father to diarrhoea and soreness. The judge had treated the leading element as limited and had failed adequately to consider the suggestive nature of the opening observation.
4. The child’s terminology was ambiguous. The evidence suggested that she used different words for the anus and vagina, making it unsafe to infer what body part was meant in the first conversation. Statements made during confusing role play in the pre-interview session could not safely bear substantial weight.
5. The judge was entitled to recognise that the absence of a disclosure during an ABE interview was not decisive. It was nevertheless wrong to treat that absence as neutral. The child had been given an opportunity, through appropriate open-ended questioning, to disclose what had happened, and the absence of any such disclosure was a factor against the allegation, although not conclusive.
6. The judge’s reasoning did not adequately address the inconsistency between the child’s reported assertion that the conduct occurred repeatedly and the finding that it occurred only once. Nor did it sufficiently weigh the father’s sustained denials, particularly as there was no indication that he was regarded as an untruthful witness.
7. There was a risk that the reasoning reversed the burden of proof by treating the father’s acceptance that the medical findings existed as material support for the allegation. Acceptance of the existence of injuries did not establish their cause.
8. Findings of sexual abuse based fundamentally on the words of a child only shortly after her third birthday are exceptional, though not impossible. The rehearing was therefore directed to take place before a High Court judge. The direction was case-specific and did not support the routine transfer of such cases to the High Court.

• High Court (Family Division): On 2 December 2019, the appeal was allowed. The circuit judge’s finding dated 14 June 2019 was set aside and the case was remitted for a fresh hearing before a different judge.
• Family Court: On 14 June 2019, a circuit judge found that the father had sexually abused the child on one occasion.