J, P and Q (Care proceedings), Re

Criminal-law concepts and jury directions do not transfer automatically to family fact-finding hearings. Delay, missing evidence and a person’s character remain part of the evidential picture, but the judge need not give formal criminal directions on delay or good character. The absence of relevant convictions may be relevant to risk or propensity without attracting the criminal-law good-character direction.

An appellate court should not interfere with factual findings or evaluative judgments unless compelled by a clear error or justification. A judgment need not mention every item of evidence or submission. Failure to prove an alleged abuse does not erase the risk created by a carer’s response to allegations. A serious finding that a parent failed to protect must be fully supported by evidence.

These were two appeals against findings made by HH Judge Thain in care proceedings concerning three sisters. The first appellant, F, was the father of two of the children. The second appellant was their mother.

The Family Court found that F had sexually abused B, a former partner’s daughter, in 2008, and had sexually motivated his conduct in shaving J and Y. It rejected the principal allegations that F had raped or sexually touched J. It also found that the mother had failed to respond protectively, had undermined J’s allegations and had obstructed sibling contact.

F challenged the treatment of delay, missing evidence, B’s evidence, his character and the finding of sexual motivation. The mother challenged the findings concerning risk, protection and contact. The central issues were whether the judgment was sustainable and whether the findings were sufficiently supported by the evidence.

Both appeals were dismissed unanimously. Baker LJ gave the lead judgment, with Warby and Coulson LJJ agreeing.

1. Reasons and clarification. The first-instance judgment was clear and comprehensive. A trial judge need not rehearse every item of evidence or submission, provided the reasons identify the crucial issues and show the basis of the decision. The approach accorded with Fage UK Ltd v Chobani UK Ltd [2014] EWCA Civ 5. In complex care proceedings, omissions from the narrative do not by themselves show that evidence was overlooked. A request for clarification is permissible where genuine lack of clarity exists, but must not be used to reargue the case or invite a review of findings.
2. Criminal principles. The approach in Re R (Children) (Import of Criminal Principles in Family Proceedings) [2018] EWCA Civ 198 applies to criminal evidential and procedural directions. R v PS [2013] EWCA Crim 992 concerns directions in criminal trials. In family proceedings, delay, faded memories and unavailable evidence form part of the evidential picture, but no formal criminal direction on delay is required. Character evidence, including the absence of relevant convictions, may be relevant to risk or propensity, but no formal criminal good-character direction is required.
3. F’s appeal. The judge had considered the possible effects of delay and missing evidence. Missing evidence did not prevent her deciding the case on the evidence available, which was sufficient to satisfy the balance of probabilities. She was entitled to accept the combination of B’s ABE interview, her later statement and her oral evidence. Her troubled mental-health history was treated as consistent with abuse, not as substantial additional corroboration. The judge properly dealt with character evidence. Her inaccurate description of parts of Y’s account did not undermine the finding of sexual motivation, which rested on the totality of the evidence.
4. The mother’s appeal. The warning in Re L-W (Children) [2019] EWCA Civ 159 that a failure-to-protect finding must be fully supported by evidence was applied. The absence of findings on J’s principal allegations did not eliminate the risk arising when those allegations were made. Given the findings about B, the shaving incidents and the mother’s active undermining of J, the judge was entitled to find that the children were at risk. The findings about obstructing contact and ostracising J were also open to her on the evidence.

• Court of Appeal (Civil Division) In [2024] EWCA Civ 22, both appeals were dismissed.
• Family Court at East London HH Judge Thain determined the fact-finding issues in case ZE22C00055 and delivered judgment on 11 April 2023.