M (Children: Findings of Fact)

On an appeal from findings of fact, the appellate court should not reassess the weight of evidence merely because another evaluation is possible. A trial judge who has carefully analysed recorded interviews may attach substantial weight to accounts given by very young children, while taking account of age, delay and questioning method. The absence of an explanation for a young child’s injury does not reverse the burden of proof. It may nevertheless be a significant factor where an explanation would ordinarily be expected, considered with the other evidence. Closed questions are not inherently objectionable in interviews with very young children. Findings that are clearly open on the evidence will not be disturbed.

The Family Court at Cardiff, presided over by Her Honour Judge Edwards, found the care threshold crossed in eleven respects and made a care order concerning three girls. The father appealed against findings that he had sexually abused C by injuring her genital area and physically abused B by slapping her bottom and genital area.

The appeal challenged the treatment of medical evidence, supervision evidence, the absence of an account of accidental injury, the burden of proof, and the weight given to ABE interviews involving very young children. The central issue was whether the findings were legally or evidentially unsafe.

1. Disposition. The appeal was dismissed. The findings were clearly open to the Family Court on the evidence. The local authority was to ensure that the Family Court’s order was corrected under the slip rule because it inaccurately stated that the father had bitten C’s vagina.
2. Nature of the finding. The trial judge had found that C made a cogent and credible allegation that her father hurt her vagina with his teeth. She had not found that he had bitten her. The appeal argument based on a finding of biting therefore proceeded on a mistaken premise.
3. Supervision and opportunity. Although the judgment contained limited analysis of the significance of supervision for the timing of the injury, the absence of any account of an accident remained significant. The medical examination on 12 October suggested that the injury had not then occurred, and the totality of the evidence entitled the judge to find that the father had the opportunity to cause it.
4. Absence of an injury history. The absence of an account from a carer was treated as one factor among others. Following the approach stated in Re BR (Proof of Facts) [2015] EWFC 41, that consideration did not reverse the burden of proof or create a hard and fast rule requiring a carer invariably to explain a child’s injury.
5. ABE interviews. The judge had watched the interviews and considered the children’s ages, the delay, the questioning and the reasons for caution. Arguments about the weight of the interviews were pre-eminently matters for the trial judge. Closed questions were not in themselves objectionable with very young children under the ABE Guidance of January 2022 at E.3.5. The interviews could properly bear considerable weight.

1. Court of Appeal (Civil Division). The father’s appeal against two findings of fact was dismissed: [2024] EWCA Civ 1290.
2. Family Court at Cardiff. Her Honour Judge Edwards delivered judgment on 8 July 2024, found the threshold crossed in eleven respects and made a care order.