B And Y, Re

Appellate courts should not interfere with first-instance findings of fact or evidential evaluations unless the conclusion was one the judge could not reasonably reach. In child fact-finding cases, inconsistencies, retractions and allegations against different caregivers must be assessed in the context of the evidence as a whole. Exaggeration of some allegations does not necessarily determine the truth of others. An ABE interview must be assessed holistically. Isolated departures from interview guidance do not necessarily undermine reliability. The sexual character of touching may be inferred from the child’s account and the totality of the evidence, even where other corroborative features are absent.

A father appealed against a Family Court finding that he had touched his daughter in a sexually inappropriate way. The judge had also found that the mother had used unreasonable chastisement, but had not known of the father’s conduct. A final care order was made for the children, with a plan for rehabilitation with their mother and supervised contact with their father.

The appeal challenged the judge’s treatment of inconsistencies and partial retractions in the child’s accounts, the absence of evidence from the child’s schoolfriend and the schoolfriend’s parents, departures from ABE interview guidance, and the conclusion that the touching was sexual.

The appeal was dismissed. Baker LJ gave the principal judgment. Asplin LJ and Peter Jackson LJ agreed.

1. The appeal was fundamentally an attack on the trial judge’s assessment of evidence. The Court of Appeal does not interfere with findings of fact or evaluations, including the weight given to individual items of evidence, unless the conclusion was one which the judge could not reasonably have reached.
2. The judge had carefully considered the child’s differing accounts and later retractions. His acceptance that some allegations against the mother had been exaggerated did not logically require rejection of the allegations against the father. The allegations against each parent had to be evaluated separately, although in the context of the evidence as a whole. The burden of proof remained on the local authority.
3. The absence of direct evidence about the child’s earlier conversations required consideration of the risk that her account had been contaminated or influenced. The judge was plainly aware of that issue. Although his explanation for discounting it was incomplete, that shortcoming did not show that he had failed to consider the issue or invalidate his findings.
4. The ABE guidance was detailed and good practice required the child to be asked what happened, rather than simply to repeat an earlier account. The interviewer’s departures from that guidance, including the way the truth-and-lies issue was addressed, were isolated. Reading the interview as a whole, the child had not been misled and understood the importance of telling the truth. The judge was entitled to assess the interview holistically, against the wider evidence, and to conclude that the inconsistencies were not significant or material enough to undermine credibility.
5. Having considered the child’s language in the interview and the totality of the evidence, the judge was entitled to conclude that the touching was sexually inappropriate. His failure to refer expressly to every contrary consideration did not undermine the reasoning.

The final care order and the associated care and contact arrangements therefore stood.

• Court of Appeal (Civil Division) — [2020] EWCA Civ 767. The appeal against the fact-finding decision was dismissed.
• Family Court at Manchester — HH Judge Allweis found, on the balance of probabilities, that the father had touched B in a sexually inappropriate way and made a final care order for B and Y.