H, Re (Children: Findings of Fact)

An appellate court should interfere with factual findings only where there is an identifiable error or the decision cannot reasonably be explained or justified. The trial judge’s advantage in hearing evidence and viewing recorded child interviews must be respected. A judgment need not address every submission, but it should confront substantial evidence pointing against the conclusion reached. Sexual abuse may be proved without supportive medical evidence; a normal examination neither supports nor refutes an allegation, although the remaining evidence requires careful scrutiny. Evidence of domestic abuse may provide relevant context and affect the weight given to parental evidence, without directly proving sexual abuse of a different kind.

The father appealed findings made by Her Honour Judge Cove in care proceedings concerning four children. The judge found that he had sexually abused two children in 2019 and had committed domestic abuse, while rejecting or declining to prove several earlier allegations and allegations that the mother had witnessed the sexual abuse. The father challenged the evaluation of the children’s evidence, the treatment of alleged collusion and inconsistencies, the finding concerning pornography, and the finding that abuse of one child occurred on multiple occasions. The central issue was whether the judge’s acceptance of the children’s ABE interviews was unsustainable or inadequately reasoned on an appeal limited to factual findings.

1. Appeal dismissed. The principal issue was whether the children’s ABE accounts of sexual abuse in 2019 were sufficiently reliable to support findings on the balance of probabilities. That was a question of fact for the trial judge.
2. Appellate restraint. The court applied the principles in Piglowska v Piglowski [1999] 1 WLR 1360, Re B (a child) (Care Proceedings: Threshold Criteria) [2013] UKSC 33 and Henderson v Foxworth Investments Ltd [2014] UKSC 41. An appellate court should interfere only in a rare case involving an identifiable error, such as a material error of law, a finding without evidential basis, a misunderstanding or failure to consider relevant evidence, or a conclusion which cannot reasonably be explained or justified.
3. Assessment of evidence and reasons. The judge had heard the evidence over eleven days, viewed both ABE interviews repeatedly and observed the children’s gestures and non-verbal communication. That gave her a materially richer evidential basis than the appellate court. A judge need not answer every submission or mention every item of evidence, but substantial points which point away from the conclusion should be addressed. The judge’s failure expressly to explain how D knew that R had been digitally penetrated did not justify reversal because it formed part of a much wider evaluation of the interviews, the evidence of collusion and the parents’ credibility.
4. Medical evidence and context. There is no requirement for supportive medical evidence before sexual abuse can be found proved. Normal clinical findings neither support nor refute an allegation, but require the available evidence to be considered with particular care. The domestic abuse findings did not directly prove sexual abuse, but provided relevant context concerning fear, control and the reliability of the parents’ evidence.
5. Specific findings. The judge was entitled to interpret the ABE interview as linking the pornography allegation to the 2019 incidents. She was also entitled to find multiple occasions of abuse of R on the basis of the brief but clear evidence. Neither finding was altered.

1. Court of Appeal (Civil Division). Dismissed the father’s appeal against the factual findings.
2. Family Court at Medway. Her Honour Judge Cove conducted the fact-finding hearing in care proceedings and delivered judgment on 1 December 2020, making findings of sexual and domestic abuse and rejecting other allegations.