Court of Appeal allows appeal by father against abuse findings over insufficient reasoning, failure by judge to take into account material factors

The Court of Appeal has allowed an appeal by a father over a Family Court judge’s finding that he had abused his daughter, with the matter remitted to be reheard by a different judge.

In O (A Child: Judgment: Adequacy Of Reasons) [2021] EWCA Civ 149 the girl, O, was born in January 2016. By then the parents had already separated, on the mother’s case because of domestic abuse. O lived with her mother and had some contact with the father.

In November 2018 the mother stopped contact alleging that O had made comments and gestures which indicated that she had been sexually abused. The father denied the allegations and himself reported the matter to the police.

The local authority instigated an assessment under s.47 of the Children Act alongside the police investigation. They concluded that O showed no signs of anxiety or distress when talking about her father, that some of the information provided by the mother had been contradictory, and that there was "very little evidence to suggest that O is experiencing sexual abuse in [the father's] care".

The father applied for contact and this was held at the local contact centre on an interim basis. Following a further hearing, contact moved into the community. Between 11 May and 27 July the father saw O on 11 occasions in a variety of locations.

According to the mother’s evidence, she found in May 2019 what she believed to be a pubic hair on O’s buttocks. On 27 July the father took O swimming. According to the mother, six days later she noticed blood on the toilet paper after wiping O’s bottom. At a subsequent appointment with a GP, the mother made various allegations, including about what O had told her.

The matter was then referred to the local children’s sexual assault service and O was examined by a paediatric forensic physician, who concluded that O had signs indicative of penetrative anal abuse.

In the days following the examination, there were several conversations between O and her mother in which, according to the mother, O made further allegations about her father hurting her.

An Achieving Best Evidence interview was held on 30 August 2019. It was common ground that no material statements were made by O during this interview. The forensic physician, Dr McLeod, examined O for a second time.

The local authority started care proceedings. Before its application was filed a further hearing in private law proceedings took place at which the court made an interim child arrangements order providing for O to live with her paternal grandmother, with each parent to have contact the following weekend supervised by the grandmother.

At a hearing a few days later an interim care order was made under s.38 on the basis of a care plan for O to remain living with her grandmother, with contact thereafter to be supervised by the local authority.

The mother made a further allegation that she had found liquid while wiping O’s bottom which she suspected to be semen. Analysis of the tissue revealed that the liquid had come solely from O’s body. The police, who had arrested the father following the mother’s allegation, took no further action.

After an eight-day fact-finding hearing, HHJ Lea made findings in the terms sought by the local authority and the mother. These included that O had suffered various injuries on 5 August 2019, including anal laceration, and these were perpetrated by the father. The judge also concluded that the father had behaved in a sexually inappropriate way towards O on various other occasions.

The father appealed on these grounds:

(1) The finding that the father was responsible for the anal laceration seen on 5 August 2019 was wrong and contrary to the medical evidence and lay evidence which appeared to be accepted by the court.

(2) If the Court of Appeal accepted this finding was erroneous the findings made in respect of any earlier assaults were fatally undermined.

(3) HHJ Lea placed too much weight without proper analysis on the father's limited opportunity to cause the injuries.

(4) The judge failed to properly analyse the evidence and make key findings about the credibility and reliability of the parents.

(5) The judge placed weight on statements allegedly made by O without first reaching a conclusion about the reliability and credibility of the mother who was reporting the same.

(6) The judge placed reliance on statements allegedly made by O without giving proper consideration to the factors in the evidence that detracted from the weight that he could attach to those statements.

Allowing the appeal, Lord Justice Baker said he recognised the very great pressure under which the judge, and all his colleagues in the Family Court, had been working during the past eleven months.

“The volume of children's cases coming to court was increasing before the Covid-19 pandemic struck and the well-known difficulties faced by courts since the first national lockdown in March 2020 have greatly added to the delays and other pressures. The judge himself alluded to the pressure of work when explaining the delay in handing down the judgment in this case. Drafting a judgment in a complex case always presents challenges even for an experienced judge. It is a demanding task to draw the threads together when various aspects of the evidence point in different directions. The problems are compounded where, as is almost invariably the case in the family court, no time is allocated for judgment writing,” he said.

“In the circumstances, it was with considerable regret that I reached the conclusion that the judge's findings cannot stand, not because they are necessarily wrong but because of the way in which he arrived at his conclusions.”

Lord Justice Baker said that it seemed to him that there were three overlapping problems with the judgment:

1. The reasoning was, in a number of respects, insufficient.
2. In reaching his ultimate conclusion, HHJ Lea failed to take into account some material factors.
3. The judge looked at the evidence in compartments and did not have regard to each piece of evidence in the context of the totality of the evidence before reaching his conclusions.

Lord Justice Baker said HHJ Lea had started his analysis by considering the medical evidence about the injuries found in August 2019.

“He dealt with this complex evidence relatively briefly, noting that there had been ‘no dispute’ about what was seen during the examinations on 5 August and 4 September. Whilst it was correct that there was no challenge to Dr McLeod's reports of what she saw, the interpretation of her observations was more difficult and could only be completed in the context of all the other evidence. The judge's summary of the medical evidence is substantially correct, although he did not mention the evidence given by Dr McLeod and Dr Crawford [who provided the court with an expert report] that the laceration or abrasion could have been caused by a fingernail.”

There were, however, more troubling aspects of the treatment of the medical evidence, Lord Justice Baker said.

“I accept [counsel for the father’s] submissions that in his final analysis in paragraphs 52 to 55 of the judgment the judge failed to address the fact that the medical evidence indicated that the anal laceration was inflicted after 27 July 2019, the last occasion on which O had unsupervised contact with her father. In his summary of the medical evidence in paragraph 42 of his judgment, the judge noted that it would have been "very surprising" if the laceration or abrasion was caused on 27 July for there to be no further bleeding until 2 August and that if that was the case then the bleeding on 2 August would have to be triggered by something such as the passing of a hard stool,” Lord Justice Baker said..

“As the mother's account was that there had been no such occurrence, that aspect of the medical evidence pointed to the laceration being inflicted while O was in the mother's care. Given the local authority's closing submission (presented in the context of its alternative submissions as to the perpetrator of the abuse) that it was 'highly unlikely' that the laceration was caused by the father, it was incumbent on the judge to explain in his final analysis why he reached a contrary conclusion.”

The Court of Appeal judge noted that having summarised the medical evidence, HHJ Lea then referred, under the heading "The wider canvas", to the antipathy between the parents, including the mother's longstanding opposition to the father's contact. “He then set out in some detail the evidence about O's alleged statements in 2018 and August 2019, noting a number of factors which undermined the reliability of that evidence. Once again, having identified these points, the judge did not bring them back into consideration when conducting his final analysis.”

Lord Justice Baker said: “After considering but dismissing the evidence about the ABE interview, the judge then made some very brief observations about the parents' evidence before embarking on his final analysis, starting with the identification of the perpetrator of the injuries found in August 2019.”

The Court of Appeal judge said there were “several striking features” about this passage in the judgment:

1. It was notably brief.
2. Although the judge noted that counsel for the local authority had put forward extensive arguments in support of both alternative findings as to the perpetrator and that counsel for the father had made what the judge described as "comprehensive and detailed submissions" as a result of which the judge was able to "see a clear basis for the findings" she was seeking, he gave no explanation of his reasons for rejecting those arguments and submissions.
3. On the specific issue of the anal laceration, the judge did not explain why he was reaching a conclusion contrary to the aspects of the medical evidence which led the local authority to submit that it was "highly unlikely" that the laceration was caused by the father.
4. The judge did not refer to the extensive evidence given by the father, in two statements in these proceedings and oral evidence, supported by evidence from other members of his family, about the contact visits between May and July 2019 in which he sought to demonstrate that he did not have the opportunity to commit acts of sexual abuse on the number of occasions that would have been required to inflict the injuries on the scale identified by the medical evidence. In closing written submissions, the father's counsel identified all the evidence about the contact visits and made a series of relevant and pertinent submissions. She accepted that the father had taken O to the toilet during the contact visits, but she submitted that it was implausible that the father could have taken advantage of such occasions to penetrate the child anally without O showing any signs of distress to members of the paternal family who were present on the visits. The judge listed the occasions on which contact took place during that period but did not analyse the father's evidence about them or the submissions made on his behalf about this aspect of the case.
5. It was submitted to the judge and to the Court of Appeal that the mother's conversations with the child between 5 and 30 August 2019, in particular a conversation on 24 August, were an attempt to coach the child as to what she should say in the ABE interview. The judge made no findings about this issue, nor about the incident in November 2019 when the mother wrongly alleged that liquid found on toilet tissue after wiping O's bottom consisted of semen.

Lord Justice Baker said: “Taken together, these errors and omissions undermine the reliability of the judge's conclusion that the father had inflicted the injuries identified during Dr McLeod's examinations of O on 5 August and 4 September 2019.

The Court of Appeal judge also said that in reaching his findings in a certain way HHJ Lea was not complying with the principle emphasised in Re T, that "a judge in these difficult cases must have regard to the relevance of each piece of evidence to other evidence and to exercise an overview of the totality of the evidence".

Lord Justice Baker said: “In the present case, the judge wrongly reached a finding as to the perpetrator of the August 2019 injuries in isolation from the evidence about the November 2018 allegations. He should have considered all the evidence about the 2018 and 2019 incidents together before making any of his findings. The evidence about the 2018 allegations was relevant to his findings as to the perpetrator of the 2019 injuries as well as to the veracity of the 2018 allegations.

“Furthermore, the reasoning at this point in the judgment is again far too insubstantial. Having set out at some length earlier in the judgment an exposition and analysis of the evidence about the 2018 allegations, in which he had drawn attention to several factors which undermined their credibility – the mother's contradictory statements, the implausibility about some of the language allegedly used by the child, the fact that O's statements had on occasions been made in response to direct questions by the mother, the evidence about O's untruthfulness at nursery, and the mother's evident anxiety which, in the local authority's view, she projected onto O – the judge failed to assess the weight to be attached to these matters when conducting his ultimate analysis. Similarly, having reminded himself of the need for caution when assessing allegations of abuse that arise in the context of private law proceedings, and having noted the mother's longstanding opposition to contact, he failed to weigh those matters in the balance when reaching his conclusion that the 2018 allegations were true.”

For these reasons, Lord Justice Baker concluded that the judge's analysis was insufficient and flawed.

He also rejected submissions from counsel for the local authority and the mother that, in the event that the Court of Appeal reached that conclusion, the remedy would be to ask the judge to clarify the reasons for his decision.

“In my view, that would be the wrong course to take in this case," he said, adding that this case fell into the category of cases where the deficiencies in the judge's reasoning were on a scale which could not fairly be remedied by a request for clarification.

Agreeing, Lord Justice Peter Jackson said it was regrettable that there must be a rehearing, but it fortunately seemed unlikely that the medical evidence would need to be reheard.

He said “this was and remains a difficult case” and that the question was “not whether O had been assaulted, but when, by whom and why”.

“On the evidence, the answer was the mother, the father, or one of them. Any one of these grave findings has huge repercussions for O's future, but unfortunately, the judgment does not contain the solid reasoning needed to underpin the finding arrived at by the Judge. He relied on statements by O, as reported by the mother, without adequately assessing the reliability of either the mother or of O; he did not weigh the relative opportunities of each parent to cause this unusual injury, or their possible motivations; he made findings of earlier grooming and abuse without assessing whether there was dependable evidence to support them; he relied on the father's demeanour in interview and in evidence without explaining how his reaction to a false allegation of such extreme seriousness might be expected to differ from his reaction to a true allegation,” Lord Justice Peter Jackson said.

“Nor did the judgment address the inherent probabilities, or in this case improbabilities, of either parent having assaulted O in circumstances where it seems that one of them must have done.”