O (Description of Sexual Abuse), Re

In care proceedings, ‘sexual abuse’ is a statutory form of ill-treatment within the definition of harm in the Children Act 1989. It is not confined to physical contact. On appropriate facts, a parent’s negligent and unintended exposure of a developmentally immature child to online pornography, adult sexual images or sexual activity can constitute non-contact sexual abuse, even without intention to abuse or direct encouragement of the child’s conduct. Guidance definitions from the DfE and NSPCC are useful but non-binding, non-exhaustive and not legal definitions. Judges should explain the underlying conduct and assess whether a label assists understanding, but possible misunderstanding does not bar use of the statutory term. A finding within the substance of the pleaded case did not create procedural unfairness.

Following an eight-day final hearing in the Family Court at Worthing, Her Honour Judge Earley made findings concerning the parents’ care of O, including that both parents had exposed her to inappropriate adult sexual material and that this amounted to sexual abuse. The child was placed with her maternal grandparents under a Special Guardianship Order. The parents did not challenge the factual findings, the section 31 threshold on other grounds, or the ultimate outcome.

The mother appealed the description of negligent and unintended exposure to pornography and other sexual material as sexual abuse. She also alleged procedural unfairness because the judge referred to the NSPCC definition after circulating the draft judgment. The central issues were whether non-contact sexual abuse required intention or positive action by an adult, and whether the finding fell outside the case advanced by the local authority.

1. Appeal dismissed. The Court of Appeal unanimously upheld the finding that O had been sexually abused. The appeal did not challenge the underlying facts or the final welfare outcome.
2. Under section 31(9) of the Children Act 1989, sexual abuse is a specified form of ill-treatment within the broader statutory concept of harm. The statutory category includes non-contact abuse. It does not require proof that an adult intended abuse or directly encouraged the child’s sexual conduct. On the facts found, the parents’ negligent enabling of O’s access to pornography, adult sexual images and sexual activity properly amounted to sexual abuse. The threshold fact-finding process is the gateway to the welfare decision, as explained in Re U (A Child) (Dept for Education and Skills Intervening) [2005] Fam 134 and Re R [2018] EWCA Civ 198.
3. The DfE and NSPCC definitions were useful in distinguishing contact and non-contact abuse, but they were not legal definitions, were not binding on the court, and were not exhaustive. Their general opening descriptions did not sit comfortably with some examples of non-contact abuse. The court therefore had to apply the statutory language to the established facts.
4. The caution in Re R [2018] EWCA Civ 198, A v B [2023] EWCA Civ 360 and Re H-N and Others (children) [2021] EWCA Civ 448 concerned the risks of using generic or criminal labels without explaining the underlying conduct. That caution did not prevent use of the statutory expression sexual abuse. Judges should describe the facts, consider whether a generic label assists understanding, and avoid over-analysis.
5. The procedural fairness ground failed. The finding of non-contact sexual abuse fell within the substance of the local authority’s proposed findings and was not radically different from the case advanced. The principles in Re G & B (Fact-Finding Hearing) [2009] EWCA Civ 10 did not require a further hearing. Referring to the NSPCC material when clarifying the draft judgment did not amount to procedural error.

1. Court of Appeal (Civil Division): The appeal from the Family Court at Worthing was dismissed unanimously.
2. Family Court at Worthing: After an eight-day contested final hearing, Her Honour Judge Earley made findings that the parents’ exposure of O to inappropriate adult sexual material amounted to sexual abuse and made a final placement order for O to live with her maternal grandparents under a Special Guardianship Order.