W S & C (Children), Re [2005] EWCA Civ 1095

Case No B2/2004/2009

[2005] EWCA Civ 1095

IN THE SUPREME COURT OF JUDICATURE

IN THE COURT OF APPEAL (CIVIL DIVISION)

Venue ON APPEAL FROM MANCHESTER COUNTY COURT

(HER HONOUR JUDGE KUSHNER QC)

Venue Royal Courts of Justice

Date Tuesday, 1 March 2005

Strand

London, WC2A 2LL

B E F O R E:

LORD JUSTICE THORPE

LORD JUSTICE WALL

MRS JUSTICE BLACK

W S AND C (Children)

(Computer-Aided Transcript of the Stenograph Notes of

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Venue MRS SALLY BRADLEY QC and MISS KATHRYN KORAL (instructed by Messrs Rhys Vaughn, Manchester) appeared on behalf of the Appellant

MR RAJAN DELAL (instructed by Messrs Alfred Newton & Co, Stockport) appeared on behalf of the 3rd Respondent

MR STEPHEN COBB QC and MS HELEN MATUK (instructed by Stockport Metropolitan Borough Council) appeared on behalf of the Local Authority

J U D G M E N T

LORD JUSTICE THORPE:

Lord Justice Wall will give the first judgment.

LORD JUSTICE WALL:

[2]Mr RC appeals against findings of fact made by Her Honour Judge Kushner QC sitting in the Manchester County Court on 13 October 2004. The reserved judgment which the judge delivered on that day was the culmination of an eight-day hearing in care proceedings under Part IV of the Children Act 1989, which had commenced on 26 August 2004. The outcome was that the judge made interim care orders in relation to three children, SS, S2C and NC. At the date of the hearing before the judge, S, who was born on 30 November 1993, was rising 11; S2, who was born on 2 April 1997, was 7½; and N, who was born on 11 July 1998, was 6. The orders the judge made were expressed to last until 20 October 2004. She directed that the case was to be relisted before her on 20 October when further directions and time-tabling through to final hearing were to be given. The judge also directed that she should give consideration on 20 October to the finalisation of proceedings relating to a fourth child, CS, who was born on 20 October 1989 and was thus nearly 15.

[3]The care proceedings in which the judge made her findings were instituted by the Stockport Metropolitan Borough Council ("the local authority") in relation to all four children in February 2004. The judge had been conducting the first stage of what has become known as a "split hearing" in which, normally, findings of fact sufficient to meet the threshold criteria under section 31 of the Act are sought by a local authority. In the instant case the position is slightly different. At an early stage in the proceedings, the local authority had put in a statement entitled "Draft Threshold Criteria" setting out a wide range of allegations, including physical maltreatment of both C and S. We understand from counsel that both Mr C and BC conceded that the threshold criteria were satisfied. However, there were factual issues which they did not concede, and accordingly the split hearing was ordered by the judge on 26 February 2004 to determine three issues. Those issues were:(a) whether the children, C and SS, had suffered sexual abuse and, if so, when the abuse occurred and the nature of the abuse;

(b) whether RC is the perpertrator of the sexual abuse;

[4]The judge directed that the hearing should take place on 12 May for three days. For reasons we do not know the hearing did not start until the end of August and in this appeal, we are, accordingly, only concerned with the allegations of sexually inappropriate conduct by Mr C towards C and S.

[5]The mother of all four children is BC, who is not married to R but has taken his name. She was 32 at the date of the hearing. RC is the father of N and S2. He is now 49. The father of C and S was a man called DS, who was born in 1962 and who died in April 1999. The cause of his death at this early age does not emerge clearly from the papers, but it appears that he was a drug addict (as, for a time, was BC), and it was confirmed at the Bar this morning that his death at the age of 37 was drug-related.

[6]The reason C does not feature in the judge's order is that she is living with her maternal grandmother and step-grandfather, VW and JW under an interim residence order. The judge recorded that it was intended that she would live permanently with Mr and Mrs W. S is also currently not living at home; she is living with Mr and Mrs JS and SS. JS is BC's sister and S's maternal aunt. It is likely that S will continue to live with them for the indefinite future. The case, accordingly, centres around the future of S2 and N.

[7]The allegations of sexual misconduct against Mr C by C and S were first made in March 2003. Up until that point, all four children had been living in one household with their mother and Mr C, who was in the position of stepfather to the two older girls. Once the allegations had been made, Mr C left the home and has remained away ever since. This has enabled S2 and N to remain living with their mother. BC and the children want Mr C to return. The question is whether it is safe for him to do so, although there is also a concern as to whether B can cope with the children on her own.

[8]The chronology of the proceeding which I have outlined so far is, in my view, most unfortunate. Proceedings were instituted by the local authority in February 2004. The contested hearing relating to the factual issues identified began in August and concluded in October, when the judge made the orders I have described. We are told this morning that the final hearing had been fixed for 1 August 2005, but that that date had to be vacated because the listing of the appeal would not have given the parties sufficient time to make the assessment which will be necessary as a consequence of the outcome of this appeal. Instead, there is to be a directions hearing before the judge on 1 August and a final hearing later this year.

[9]I regard this time-tabling as most unfortunate. The delay has, however, undoubtedly been added to by the time it has taken this court to hear and determine the appeal. Judge Kushner refused Mr C permission to appeal on the ground that her findings were made in the exercise of a discretion after an eight-day hearing. Permission to appeal was initially refused on the papers by Ward LJ on 26 January 2005, but subsequently granted on oral renewal by Ward LJ and Wilson J on 17 March. Most unfortunately, the case now only reaches this court in late July 2005. The outcome is that by the time the case is finally heard by Judge Kushner, the best part of two years will have elapsed before the futures of S2 and N will be finally decided.

[10]The findings of fact specifically sought by the local authority are the following terms:

"1. For approximately 18 months prior to March 2003 RC sexually abused CS by touching her breasts on numerous occasions and making attempts to touch her genital area on occasions. The last occasion when sexual abuse took place was 13 March 2003. 2. In or around February/March 2003, prior to 17th March 2003, RC sexually abused SS by inserting a finger into her anus. The digital penetration caused injury to SS in that a medical examination conducted by Dr Raina Patel on 24th March 2003 concluded that there were two small anal splits in the 6 and 7 o'clock positions. 3. On one occasion prior to 17th March 2003, RC sexually abused SS by inserting a finger into her vagina. 4. During police interview on 31st March 2003, RC admitted that he deliberately touched C's breasts on two occasions."

[11]The judge found, in paragraph 105 of her judgment, that the allegations of sexual abuse made by C were "correct in their entirety". As to S, I propose at this point to read the entirety of the passage in which the judge made her findings, as they form the core of the assault which Mrs Sally Bradley QC on behalf of Mr C makes against the judge's findings. I start, therefore, at paragraph 106 of the judgment. After the judge has made her findings in relation to C, she said:

"106. S is a different matter, however. She is a child who has given various accounts of her alleged abuse. She has arguably varied between the description of digital penetration of her anus on the one hand, and of her vagina on the other. I find it less worrying in a child of her age, as I have said, than in someone older, since she may not be expected to recognise the difference at her stage of development, bearing in mind she is not a very bright girl anyway. 107. I am acutely aware that she made no admissions in her first memorandum interview but I am satisfied that whatever the truth, her mother did try to influence her on her way to pick her up at her aunty J's place of work on the day of her interview. The pause before the answer that she caused bleeding in her knickers herself, was also quite telling, as was the fidgetiness when the shortness of her nails was being discussed. 108. The fact remains that S readily divulged that RC had put his finger up her bum when in the Trafford Centre to her grandmother and to her mother. There may well have been a leading question from V [that is the grandmother] which initiated it. VW said she asked how blood got in her knickers. According to BC, S was asked 'Has he touched you as well?' Even assuming that B is right in her evidence, the response of S was common to the evidence of both of them. 109. That evidence was that, at first S said 'It doesn't matter', then when pressed by V, S said that RC had put his finger up her bum. I think that the detail rather than the compulsion of the allegation at this point, was significant. S didn't just accuse Mr C of causing the bleeding, but actually described the mechanism whereby it happened. She went into more detail and during the following week describing the scratch of his nail. She has, over time, described where it has taken place, where her mother was, where the other children were, what time of day it was, and even what was on television at the time. She has remained consistent in these details when making the allegation. She also was given ample opportunity to expand the allegations further in their gravity, but didn't. 110. The assessment of S2 by JS, tends to show her as the sort of child who assumes that things are her own fault rather than the responsibility of others. This also bolsters my view that despite all the manifest weaknesses in the evidence in relation to S's allegations, there is a cogent theme of truth running through her allegation. That she was instructed by Mr C not to tell of the abuse or that he would hit her, also rings true. Her mother believed her when she divulged that piece of information and so do I. 111. Finally, although this is not a major point, although the damage to S's anus is consistent with either constipation or with loose bowels, both of which S has suffered, I was not fully satisfied with the mother's evidence that these complaints continued up to the time of the allegations as B alleges. From the evidence it seems that the main period when S had bowel problems of constipation, diarrhoea and smearing was around the year 2001. 112. Although both V and J were aware of S's enuresis they say that they were unaware of any soiling or bowel problems, at least with them and at least in recent times. I do not think that the splits in the anus are adequately explained away by S's bowel complaints. However, I cannot be certain whether the indecent assault was towards S's anus or towards her vagina. 113. If I were asked to pin my colours to the mast, I would think that, on balance, it was digital penetration of the anus. But, as I have said, I cannot be sure, and, in fact, in the context of these proceedings, I do not think that is actually matters."

I shall, of course, return to these paragraphs but it seems to me that what the judge was saying in essence was (1) she was finding as a fact that Mr C had indeed indecently assaulted S; (2) that she could not be certain whether the assault had been anal or digital; (3) that on the balance of probabilities it was anal; and (4) that in the context of the proceedings, whether the assault was anal or vaginal did not particularly matter.

[12]Mrs Bradley submits, as I understand her, that these findings were not properly open to the judge and, in any event, the manner in which she expressed herself demonstrated that she had forgotten what I will for present purposes call the H and R direction she had given herself earlier in the judgment.

[13]As far as the background to the case is concerned there is no doubt at all that these children come from a wider family which is seriously dysfunctional if not chaotic. The judge set out the background in great detail, and I shall return to it in a moment. It is equally plain that the manner in which S's allegations in particular emerged has a number of unsatisfactory features. Mrs Bradley launched a particular attack on the reliability and good faith of Mrs W and JS. She took us to passages in the transcript which, she submitted, demonstrated Mrs W was a woman who rushed to judgment in matters of sexual abuse, and that both children had been profoundly influenced by her in the allegations which they made. She argued that, in particular in relation to S, the pressure on S to disclose abuse by Mr C had been, in effect, irresistible, and that accordingly no weight could be placed on S's assertions. Instead of searching for cogency, she argued that the judge had compiled and relied upon a selection of contaminated and unreliable evidence which she had then failed to analyse. By contrast, a proper application of the principles enunciated in the well-known leading speech for the majority by Lord Nicholls of Birkenhead in Re H and R (Child Sexual Abuse: Standard of Proof)

[1996] 1 AC 563

(HL) should have led the judge to the conclusion that the evidence came nowhere near attaining the degree of cogency necessary to satisfy the balance of probability standard of proof, given the seriousness and importance of the issues raised and their significance in the proceedings.

[14]For the local authority Mr Stephen Cobb QC, who like Mrs Bradley did not appear below, argued in his skeleton argument that it was open to the judge to make the findings which she did, provided that she proceeded with caution, recognised the imperfections in the evidence and directed herself properly as to the law.

[15]Before turning to the facts, therefore, I will look at the manner in which the judge directed herself as to the law. In paragraph 11 of her judgment, she said this:

"The test that I have to apply is the test that is set out in the House of Lords, case of Re: H and R [1996]. The standard of proof which has to be brought to my satisfaction is one, on the balance of probabilities. However, because of the seriousness of these allegations, to satisfy myself to this standard, I have to have reliable and cogent evidence. The more serious the allegation, the more satisfactory the evidence has to be to enable me to be satisfied to the correct standard."

[16]I did not understand Mrs Bradley to argue that this was an inadequate direction. Her complaint was simply that the judge did not follow it. I will return to this later.

[17]In order to put the argument in context, it is necessary to set out the facts, which I do by reference to the judge's judgment. This was, as I have already stated, a reserved judgment. A substantial portion of it was occupied with a description of the family and the individuals who had given evidence before the judge; and I remind myself that the judge had the inestimable advantage of seeing and hearing the protagonists over a period of eight days; I preface my observations of her analysis of the personalities by saying that there is nothing in it as far as I can see which is inappropriate or which is unjustified on the material she had before her.

[18]She described the family background as complicated and intricate. She gave a detailed description of the family, starting with Mrs W, and prefacing her description with the observation that as the account unfolds she regarded it as a classic example of history repeating itself from generation to generation within the family. She described in detail Mrs W's children by different relationships. When she came to describe the mother she recorded the mother's own assessment of her history, noting that she had been sexually abused by her adoptive father between the ages of eight and 14. This was abuse about which she had told her own mother, Mrs W. The police had been involved but apparently B had retracted and nothing occurred. Mr G, the adopted father, remained in the household and, it appeared, continued to abuse B. He did not leave the household until 1986 when B's sister J made a similar complaint. The judge commented that B had obviously been left with emotional scars from her abuse which affected her day to day life and also her relationship with mother.

[19]Mrs W met Mr W in 1987. By that time B was about 15. Mr and Mrs W 2 had a child, A, 15 at the date of the hearing before the judge, who had been diagnosed with attention deficit hyperactivity disorder. She was a particular friend of C's and she features later in the proceedings. B's troubled childhood, however, continued. She was sent away to boarding school. She had behavioural problems at boarding school and after leaving boarding school met Mr S who, as I have already indicated, was a drug addict and led her into taking drugs. Moreover, after her relationship with him began she had lived with his sister and brother-in-law in a household which was redolent with schedule 1 offenders and other wholly unattractive features. The judge described it as overcrowded, dirty, unhygienic and C being presented to the doctor at hospital with a plethora of injuries. In addition one of the children in the family, aged six, had indecently assaulted a girl of the same age.

[20]There was also on the judge's finding, not I think in dispute, domestic violence between B and Mr S and frequent separations and reconciliations. Their final separation took place in March 1996 when C was six and S was three. C went to live with her grandmother, Mrs W. S stayed with her mother. In 1999, as I have already indicated, Mr S died. By this time B had taken up with Mr C and the judge records, positively as far as Mr C is concerned, that he assisted the mother to resist drugs and alcohol and to remain drug-free.

[21]S2 was born in 1997 and the family moved into a house. Their difficulties, however, continued. B took an overdose, engaged in shoplifting and there were difficulties in her relationship with Mr C. There was a separation. However the judge appears to have regarded Mr C as the more domesticated of the couple who did a lot of the cooking and was able to discipline the children. B, the judge found, was clearly dependant on Mr C, but there were substantial downsides to the relationship.

[22]The judge concluded, therefore, in this part of the judgment that the relationship between all the members of the extended family was punctuated by occasional arguments and fallings out, sometimes for trivial reasons. There were many gulfs and rifts, although Mrs W, the judge found, had done her best to support all her children, including B.

The judge directed herself in this context in these terms in paragraph 45 of the judgment:

"Looking at this background, I am aware that I have to be especially careful in respect of various matters. So far as the children, C and S are concerned, I have to be aware of the fact that they have been brought up in homes where poor parenting has been the rule rather than the exception. Secondly, when they were in the S/G household, it was easily possible, especially in C's case, that they were exposed to some form of sexual abuse there. They may therefore be accustomed to sexual conduct and be able to describe it in the way that other children would not be able to do. 46. Both C and S have the background and the history whereby they may have some justifiable resentment against their mother and Mr C and they certainly do now since the allegations have emerged."

She went on to say that it is a consistent view throughout the papers and the oral evidence that S had been physically and emotionally abused over a number of years, and, what is more, S was first made aware for the first time that Mr C was not her real father just before her second memorandum interview in May 1993.

[24]As far as Mrs W was concerned,

the judge directed herself as follows:

"So far as the grandmother is concerned I have to be acutely watchful because she may be hyper-sensitive to allegations or suggestions of abuse. Her previous failings towards her own children in this regard may make her less than objective and more likely to assume abuse towards her grandchildren. However, even though she was by no means a good or even adequate parent to her own children, she has, I bear in mind, always reported allegations of abuse to the authorities although ultimately that has not enabled her to protect them properly."

She then gave a pen picture of other members of the family, starting with J:

"54. I think that JS is a fairly hard-headed woman who understands the dynamics of this complicated family very well. She was prepared to acknowledge when her own mother was shrill or loud in her remarks in front of the children. She also knows well the personalities of the children themselves. 55. The children repeated their allegations to her in the week before the medical examinations and the first memorandum interviews. J has no doubt in her mind that the girls were telling the truth."

Of the mother, she said:

"B is and always has been a very vulnerable woman. She has suffered abuse of every kind at the hands of those who were responsible for her care. As a result she has clung to unsuitable partners, irrespective of the abuse at their hands. This has applied to DS and it applies equally to RC. He has assaulted her on at least two and probably three occasions, although the pair of them tried to minimise this and B now understates the nastiness of his personality when he has taken a drink."

As far as Mr C is concerned, she said:

"61. My impression of RC in this case is an impression of a basically weak man who establishes control over his family through domestic tyranny and bullying. He has undermined the self-confidence of B, for example by calling her fat, to which she was very sensitive and on occasion through domestic violence. He has undermined the self-confidence of C and especially of S, who has never received any encouragement from him or indeed from B."

[25]In my judgment, pausing as I do here before going on to relate the facts relevant to this application, it is very clear to me that the judge has taken considerable care in assessing the personalities of the family and the complexities of the background. There is, as I find, nothing in those assessments which could properly be the subject of criticism. They demonstrate the enormous advantage which the judge had of hearing the parties give evidence.

[26]The judge then turned to the allegations themselves. As a prelude to them was an incident in February 2003 when C noticed some blood in knickers which S had put out to be washed. She showed them to her mother. B asked S what happened. S said she did not know, then she said she picked a spot, something which, according to J, she had a tendency to do. There was then a discussion with Mr C and also with Mrs W. Mrs W's evidence was that the description of the blood in the knickers was much more substantial than that which had been given by B to Mr C. She raised the question of whether or not S may have been sexually interfered with. She was roundly criticised for having done that by Mrs Bradley, who took us to a passage in the transcript in which Mrs W was cross-examined about this particular incident. Her evidence was that she did not think the blood related to the menarche. She was asked:

"How old was S at the time"? She replied: "

Nine. I said I thought it was very unlikely because S hasn't even started to develop yet. I asked her where this blood was and she told me it was at the back, the front and the two sides of the knickers. She then said that she had a spot on her bum and I said that it had to be a big spot to cause that much blood. That is when I asked had she been sexually abused."

[27]In my judgment, given the history and the background of this family, the discovery of a substantial quantity of blood in a nine year old's knickers is a perfectly reasonable pretext for Mrs W to raise the question of sexual abuse. I have to say I am not impressed with Mrs Bradley's point that this demonstrates a willingness, and indeed an enthusiasm, on Mrs W's part to find sexual abuse had taken place.

[28]On 16 March 2003 Mr and Mrs W had gone to the Trafford Centre outside Manchester with B, all four of their children and with A, their own daughter. As I indicated earlier A and C were firm friends. The judge found that at some point A and C returned to the shop where the grandmother and the mother were. C was very upset. A told the grandmother, Mrs W, who was in a different part of the shop from B, that C had been indecently assaulted by RC. This was then confirmed by C to her grandmother. The allegation described involved Mr C touching her breasts and trying, though unsuccessfully, to touch her private parts, all the contact being over her clothing.

[29]The grandmother and the girls then went over to join B and to go outside the shop. They returned to the car. Mrs W took the opportunity to take S aside and asked her how she had got blood in her knickers, and S replied that Mr C had put his finger up her bum. This was said in front of B. The whole family then returned to the car, went to J's house and B telephoned the police.

[30]The judge records that the journey home was fraught. V and B were upset. B was also very angry, and C and S were naturally upset. We were again referred to a passage in the transcript where the detail of this journey was described. Mrs W then asked C right out in front of the others whether she had been touched by Mr C with his penis. C said that she had not been so touched. The judge described this as "a classic example of V charging at things like a bull at a gate without thought of the effect on the children."

[31]The children were then left with J. Mr and Mrs W took B back home, where she confronted Mr C with the allegations. He admitted that he had touched C's breasts twice by accident in the course of play, but denied any attempt to touch C's private parts. He denied any indecent assault on S at all. The police then arrived and Mr C agreed to leave. As I stated earlier he has not returned since.

[32]The police asked that the children, C and S, should not be asked any questions before they were interviewed. The judge accepted an assurance from J and Mr S that there had been no such questioning. However, she found that during that week both girls did repeat their allegations to their aunt. S in particular had said that her father had put his finger up her bottom, he had a sharp nail which hurt her, and this information was duly passed on to the police.

[33]S was medically examined by a Dr Patel and, as appears from the passage I have already read from the judge's judgment, Dr Patel was of the view that the state of her anus was consistent with digital penetration, but also of diarrhoea or constipation, both of which S had suffered from at some stage.

[34]BC later told her sister J that the police officer had told her that it was all fabrication with regard to C. Indeed BC continued to maintain that this was the case even when confronted with the memorandum interviews. The judge rejected the suggestion that the police officer would say anything of the kind, especially at this point. Her explanation was that the mother for her own purposes had been drawing on her own memory as to the response of the police when her own sexual abuse had been investigated.

[35]C gave a memorandum interview on 25 March, as did S. They were accompanied by their mother and aunt to the interview. There was an issue of fact which had some significance because the judge found that, contrary to B's evidence, she had in fact collected S from school and indeed had sought to influence her, having half an hour with her before the interview commenced, in which she had (as the judge found) made it clear to S that she did not wish S to make any allegation against Mr C.

[36]C's interview is very clear. She repeats the allegations. Indeed it is a feature of C's case (which the judge commented on) that her allegations have throughout been entirely consistent; they have never been elaborated; they have never become exaggerated; the same form of abuse is alleged throughout and the interview records that very clearly.

[37]S, however, did not make any allegations at all. The judge described the interview. On the way back from the interview it appeared that J and B had an argument because J accused B of influencing S not to make any disclosure, and the judge took the view that that indeed is what had occurred.

[38]Mr C was interviewed by the police on 31 March. He admitted touching C's breasts on two occasions in play, although the judge commented that his account differed from what he had told his wife since he had conceded that they had been deliberate acts although with no indecent motive.

[39]In April and May the judge recorded that there was increasing concern with S's sexually inappropriate behaviour. B had asked her mother Mrs W to come round and assist with the children as they were not responding, and it was at this point that Mrs W discovered that C had told S that Mr C was not in fact her natural father. This is something which, according to BC, S was very upset about, although Mrs C did not so describe it. In any event, the judge commented that at the prompting of the grandmother, S once again repeated the explanation for the bleeding, namely that Mr C had put his finger up her bum. S said that she had not disclosed that at the memorandum of interview because Mr C had threatened to hit her.

[40]The judge obviously examined that disclosure with critical care since the exchange was not conducted in a neutral atmosphere and S was obviously, as the judge found, both upset and frightened. In any event the result was a second memorandum interview in which this time she did confirm that Mr C had put his finger up her front bottom and made her bleed. She was therefore examined again by Dr Patel, this time with concentration on the vagina, and there was no evidence of hymenal trauma although there could have been digital penetration according to the doctor.

[41]The judge commented that on looking at the transcript of the interview, the emergence of whereabouts on her body S was assaulted was less than clear, but she commented - although where the evidence came from I am not entirely sure - that it was well known that children of a young age, and S was only nine and not a very bright nine at that, had difficulty in distinguishing the different areas of their private parts. However that was not a matter that was investigated by the officer.

[42]The only other relevant point in relation to disclosure comes through the Ws' daughter, A, who is effectively the same age as C. In August the mother informed social workers, the judge records, that C had allegedly admitted to A that she, C, had lied about the allegation. When asked about it A said it was not C who had retracted, but S. A was therefore interviewed by way of video recording on 1 September 2003 and in that interview she confirmed that S had admitted she had lied about the allegations a couple of weeks before. However A also said on the previous day S reaffirmed the allegation against the father and said that she had lied when she had denied it. The retraction had emerged, the judge found, when S was upset following an argument with her sister, C. The confirmation of the allegation the day before had followed another occasion when S was upset after misbehaving. As a result of what A said in her interview, the prosecuting authorities felt the evidence against Mr C was significantly undermined and therefore proposed proceedings against him in the criminal courts were discontinued on 15 September 2003.

[43]A plays a part in these proceedings in this way. Mr Cobb's skeleton argument revealed that at the pre-hearing review the local authority made it clear that due to the various difficulties A had and the harm which giving evidence was likely to cause her she was not going to be called to give evidence, and they would not, therefore, be relying on her evidence. She was duly not called. However, in paragraph 101 to 102 of the judgment

the judge refers to A in these terms:

"101. I find it very difficult to be certain about the accuracy or truthfulness of A's account on this matter. On the one hand she is a troubled young woman who sometimes tells lies, according to members of her family. She is supposed to have made false allegations against her own father, then retracting them subsequently. 102. She was roundly dismissed as a liar by V when she initially approached the topic of any retraction by S. However, her account on the video recording had the ring of truth about it, if only in the rather spontaneous and dare I say it, muddled way it came out."

Mrs Bradley complains about these paragraphs. It had been agreed that A would not be called and that the local authority would not be relying on A's evidence. Mr C's advisers had plainly wanted her at court to deal with the question of S's retraction, although Mrs Bradley added that she was an important witness also to what happened at the Trafford Centre. However, if no reliance was to be placed on her evidence, Mrs Bradley is, I think, entitled to complain about paragraphs 101 to 103 of the judgment which I have just read; in particular paragraph 103, which appears to place some weight and some reliance on what A had said in the memorandum interview. Were this paragraph to be critical in the judge's evaluation overall, or were it to be compounded by any other substantial errors, I would have concern about her conclusions. Taken in isolation, however, it is, I think, a slip but not a great deal more.

[44]Before coming to the judge's conclusions and her analysis, I pause to consider Mrs Bradley's argument in relation to H and R.

[45]What are the duties of a judge conducting a finding of fact hearing in proceedings under Part IV of the Children Act? It is, I think, important that this court should not put any further gloss on Lord Nicholls' well-known speech in H and R, or attempt to re-state what he said in different words. The function of the judge in every case is to apply the guidance given by the speech to the facts of the individual case. Although the words are very familiar I propose to read out one paragraph from Lord Nicholls' speech:

"Although the result is much the same, this does not mean that where a serious allegation is in issue the standard of proof required is higher. It means only that the inherent probability or improbability of an event is itself a matter to be taken into account when weighing the probabilities and deciding whether, on balance, the event occurred. The more improbable the event, the stronger must be the evidence that it did occur before, on the balance of probability, its occurrence will be established. Ungoed-Thomas J expressed this neatly in In reDellow's Will Trusts [1964] 1 WLR 451, 455: 'The more serious the allegation the more cogent is the evidence required to overcome the unlikelihood of what is alleged and thus to prove it.'"

[46]Anybody who has tried a care case involving allegations of sexual abuse, as all three members of this court have done, knows that the factual matrix from which the allegations arise is frequently very complex. Perpetrators rarely tell the truth about what they have done, and the child victim may retract and then retract the retraction. Other lay witness evidence may be partisan or unreliable. Furthermore, the circumstances in which the allegations emerge, and the manner in which they are investigated may well both be unsatisfactory. Medical evidence relating to a child's injuries is frequently either equivocal or non-existent.

[47]I did not understand Mrs Bradley to dissent from the proposition that none of these factors, taken either collectively or individually, necessarily means that the judge is precluded from making a positive finding of sexual abuse applying the Re H and R criteria, although, of course, they may do. What they do mean is that the judicial fact-finding exercise has to be carried out with particular rigour, and at the end of the process the judge, if positive findings are to be made, must be in a position to explain why the evidence he or she has heard is sufficient to satisfy the Re H and R test. Self-evidently, this process will involve the judge making findings as to the credibility of individual witnesses, as well as identifying and balancing the factors in the particular case which both tend to support and to contradict the reliability of the allegations made. Provided this exercise is carried out rigorously, it will be a matter for the individual judge in the individual case to reach a conclusion, and it will only be if this court detects a clear error in the analysis, or the process by which it has been carried out, that this court will be able to intervene. These observations apply, I think, particularly to the findings the judge made in relation to C. In paragraph 103, she said:

"I now turn to my conclusions and findings about these allegations. Firstly, dealing with C. She has always been consistent in her allegations, which have been admitted by Mr C so far as grabbing her breasts are concerned. Although there may be many reasons why C should fabricate allegations against her step-father, and she certainly has the maturity to do so, in fact, she is acknowledge by Mr C to be telling the truth, at least in part. Further, she has not sought, in my view, to overstate matters. She has only said that Mr C tried but did not succeed to touch her further, only managing to touch her on her inner thigh. She denied any further and more serious impropriety when it was easily open for her to do so. 104. According to A, C had been complaining for some time to her about RC's behaviour, but was keeping it secret waiting to see whether the conduct towards her would stop of its own accord. That also has the ring of truth about it. Further, she has expressed her anger that her mother would prefer to believe Mr C rather than herself. 105. My view is that the allegations of sexual abuse made by C are correct in their entirety."

[48]Although paragraph 104 contains a reference to and an apparent reliance on A, the judge could equally have placed reliance of C's police interview in which C describes Mr C's behaviour in some detail.

[49]Speaking for myself, I am quite satisfied that the judge was entitled to make the findings that she did in relation to C; that the material to enable her to do so was cogent and that the judge's reasoning and conclusions plainly satisfy the Re H and R test.

[50]By contrast, paragraph 113 of the judge's judgment (which I have read earlier) is, in my view, unfortunately expressed, and could, as my Lord, Thorpe LJ pointed out in argument, have been omitted in its entirety. However, it needs to be pointed out that it came at the end of an extended passage in which the judge had identified the factors for and against, which weighed with her in reaching the conclusion that S had indeed been the subject of an assault. I am therefore unable, speaking for myself, to condemn paragraph 113 in the round terms used by Mrs Bradley because the critical finding she was making was that S had been the victim of an indecent assault by Mr C. In my judgment, that finding was open to her applying the Re H and R test. She then expressed an uncertainty as to whether or not the assault was anal or vaginal, but concludes that in the context of proceedings (and by this I take her to mean the other allegations against Mr C of physical chastisement and his abuse, as found, of C and S) whether the assault was vaginal or anal did not matter. Speaking for myself, and whilst I would have preferred it if the judge had adhered to the language of Re H and R, I cannot say that paragraph 113 is so objectionable as to undermine the judge's findings about S overall and to vitiate her overall thought process. As I said, the finding of fact which the judge made, and which in my judgment she was entitled to make, was that Mr C had indecently assaulted S by digital penetration. That finding, I repeat, was, in my view, open to her on the Re H andR test.

[51]It follows, in my judgment, that Mrs Bradley's sustained and spirited attack on the judgment fails. I would accordingly dismiss this appeal.