K-K (Children), Re

In an appeal against family fact-findings, the appellate court must not interfere with primary factual conclusions merely because it might have assessed the evidence differently. Intervention requires a plainly wrong or rationally insupportable decision. The trial judge may assess the credibility of all relevant witnesses, including parties against whom findings are sought; doing so does not reverse the burden of proof, which remains on the local authority. Repeated retractions must be evaluated in their wider context, including family reactions and pressure. Failures to follow good practice or ABE guidance in interviewing and recording a child do not automatically prevent findings of abuse where the evidence as a whole justifies them. Inconsistencies are matters for evaluation and are not necessarily fatal.

The appeal arose from a fact-finding judgment of the Family Court sitting at Barnet in ongoing care proceedings concerning a child and her siblings. The judge found that the child’s stepfather had sexually abused her and that her mother had failed to protect her and had responded inadequately to the allegations. The stepfather appealed against the findings. The mother made a late application for permission to appeal against the findings concerning her. The central issues were whether the judge had sufficiently assessed unreliable interviewing and recording practices, the child’s repeated retractions and inconsistencies, the credibility of the parents, and whether the burden of proof had been reversed.

Macur LJ gave the judgment of the court, with Underhill LJ and Singh LJ agreeing. The court dismissed KK’s appeal and refused NK permission to appeal.

1. The applicable approach was that stated in Volpi & Anor v Volpi [2022] EWCA Civ 464. An appellate court must not interfere with primary factual findings unless the decision is plainly wrong. It must ordinarily assume that the trial judge considered the whole evidence. A judgment need not mention every item of evidence or present a perfectly balanced account, and it should not be subjected to narrow textual analysis. The findings below were rationally supportable and the judge was entitled to reach them.

2. The judge’s adverse assessments of NK’s and KK’s credibility did not shift the burden of proof. That burden remained on the local authority throughout. The judge was entitled to consider the parents’ evidence as part of the wider assessment of the credibility and reliability of the child’s disclosures and retractions.

3. The child’s repeated retractions had to be assessed in context. The judge was entitled to consider the parents’ reactions, the child’s separation from family members, the punishment of shaving her head, and the pressure or influence arising from those circumstances. Drawing common-sense inferences from the evidence was not impermissible speculation.

4. The court recognised serious deficiencies in the questioning, recording and investigation of the allegations, including failures to follow ABE guidance. However, as explained in Re S (A Child) (Findings of Fact) [2023] EWCA Civ 346, non-compliance with such guidance does not prevent findings of abuse where the evidence as a whole justifies them. The judge was entitled to regard some professional evidence as reliable and to rely on corroborating evidence from the child’s earlier disclosures and the parents’ own accounts.

5. Differences in the child’s accounts, including the later allegation of digital penetration, were matters for the trial judge’s overall evaluation. They were not necessarily self-contradictory or fatal to the findings. The judge’s imprecision in explaining how one inconsistency had been taken into account did not undermine the overall reasoning.

1. Court of Appeal (Civil Division): On 10 September 2024, the court dismissed KK’s appeal and refused NK permission to appeal. The judgment is reported at [2024] EWCA Civ 1025.
2. Family Court sitting at Barnet: Her Honour Judge McKinnell made findings of fact on 15 April 2024 that KK had sexually abused the child and that NK had failed to protect her.