O (A Child : Judgment: Adequacy Of Reasons)

In a complex fact-finding hearing, the judge must give sufficient reasons to show how material evidence, credibility, opportunity, motive and inherent probabilities were evaluated. Evidence must be considered as a whole rather than in separate compartments.

A material omission or limited ambiguity should ordinarily be raised with the trial judge, who may provide additional reasons. That procedure is unsuitable where the omissions are so extensive that the basis of the decision cannot be discerned, or where the analysis is deficient in other fundamental respects. In such a case, what is missing is not an addition but the foundations of the decision, and an appeal and rehearing may be required.

The father appealed against findings by HH Judge Lea in the Family Court that he had sexually abused his young daughter and caused anal injuries through repeated penetration. The medical evidence established serious injuries but raised substantial questions about their timing and cause. The parties also disputed the reliability of statements attributed to the child, the parents’ credibility, their respective opportunities to cause the injuries and the significance of earlier allegations.

The judge found that the father was responsible and treated that conclusion as supporting findings of earlier grooming and abuse. The appeal concerned whether his reasons and evaluation of the totality of the evidence were adequate, and whether any deficiency should be addressed by inviting additional reasons or by ordering a rehearing.

1. Appeal allowed unanimously. The findings could not stand. This was not because they were necessarily wrong, but because the reasoning by which they were reached was insufficient and flawed. The matter was remitted for a rehearing before a different judge.

2. The judgment had three overlapping defects. It gave insufficient reasons, omitted material factors and evaluated the evidence in compartments rather than as a whole. The medical evidence suggested that the anal injury was highly unlikely to have been caused during the father’s last unsupervised contact. The judge had to explain why he nevertheless attributed it to the father. He also failed adequately to evaluate credibility, the reliability of statements attributed to the child, the parents’ respective opportunities and motivations, and the inherent probabilities.

3. The findings concerning the later injuries and the earlier allegations had to be reached through an overview of all the evidence. The principle in Re T [2004] EWCA Civ 558 required each item to be assessed in relation to the others. It was erroneous first to identify the perpetrator of the later injuries in isolation and then use that finding to support the earlier allegations.

4. The established procedure under English v Emery Reimbold and Strick Ltd [2002] EWCA Civ 605, the Re A Practice Note [2011] EWCA Civ 1205 and Family Procedure Rules 2010 Practice Direction 30A ordinarily requires advocates to raise material omissions with the trial judge. The judge should consider whether additional reasons can remedy the omission. The procedure must not become an opportunity to reargue the case.

5. Clarification is inappropriate where omissions make the basis of the decision impossible to discern or the analysis is otherwise fundamentally deficient. The gaps here concerned the central evidential issues and could not fairly be supplied as additions. As Peter Jackson LJ explained, the missing material amounted to foundations rather than amplification. The rehearing was to consider all matters afresh and the outcome of the appeal was not to influence its result.

1. Court of Appeal (Civil Division): The father’s appeal was allowed unanimously. The findings were set aside and the case was remitted for a rehearing before a different judge.

2. Family Court at Nottingham: HH Judge Lea found that the father had repeatedly penetrated and sexually abused the child. He refused permission to appeal. No neutral citation for that decision is stated.