PR v JES & Anor

An appellate court reviewing fact-finding in allegations of child sexual abuse must exercise substantial restraint. It may intervene where clear and substantial errors in the evaluation of evidence are identified. In a complex case involving a young child, the judge must analyse the development and context of the allegations, the circumstances in which they emerged, the child’s consistency and behaviour, the reliability of reporting adults, and any corroboration. A later account cannot be assessed in isolation or simply added to an earlier evidential picture. The central facts alleged should be clearly identified and determined. Overloaded schedules which mix facts with evidence may distract from that task.

The father appealed findings made by HHJ Meston QC that he had sexually abused his daughter. An earlier fact-finding judgment had rejected the allegations, but the enquiry was reopened after the child made further disclosures in 2017. At the rehearing, the judge relied substantially on the child’s accounts to a family-centre worker and in an ABE interview, together with his revised assessment of the parents’ credibility. The appeal alleged that the judge had failed to apply the required caution, had compartmentalised the later evidence, had failed to determine important earlier events, and had wrongly assessed credibility. The central issue was whether the judgment demonstrated a sufficiently rigorous and contextual analysis of the evidence.

1. Appeal allowed. The appeal was governed by FPR 30.12(3). An appellate court should not retry disputed facts or substitute its own evaluation merely because another conclusion is possible. Intervention is justified where clear and substantial errors in the fact-finding process or analysis are shown.
2. In allegations of sexual abuse by a young child, the court must take special care in evaluating reliability. The degree of analysis required depends on the factual and procedural complexity of the case. Relevant matters include the number and sequence of interviews, the child’s age and suggestibility, the reliability of reporting adults, the climate in which disclosures arose, possible adult influence, consistency over time, the child’s behaviour, and independent corroboration.
3. The judge’s analysis of the April and May 2017 allegations was materially incomplete. The later accounts were not sufficiently assessed against the earlier absence of complaint, the mother’s involvement, the way the disclosures were elicited, the non-compliant questioning and re-enactment process at the family centre, the subsequent familiarisation process, or the possibility of innocent creation. The conclusion that the child was describing a painful reality therefore placed undue weight on the later evidence.
4. The judge also failed expressly to determine what occurred on 15 November and 13 December 2015. Those were central anchor points in the allegations and had featured prominently in the earlier reasons. The absence of findings on them prevented a proper comparison between the earlier and later conclusions.
5. Fact-finding schedules should identify the central facts for determination. Schedules which are overloaded, imprecise, or which mix facts with supporting evidence may obscure the real issues.
6. The appeal was remitted for a fresh hearing. All matters relating to the sexual-abuse allegations, including credibility, were at large. The appellate court declined to determine that the later evidence was incapable of supporting findings.

• High Court (Family Division): HHJ Meston QC made findings of sexual abuse on 11 July 2018. Permission to appeal was refused on 13 July 2018.
• High Court (Family Division): Mrs Justice Knowles granted permission to appeal on 13 August 2018.
• High Court (Family Division): the appeal was allowed and the matter remitted for a fresh hearing before a judge of High Court level.