P (A Child), Re [2010] EWCA Civ 672

Case No B4/2010/0557[2010] EWCA Civ 672
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM NEWPORT County Court
HIS HONOUR JUDGE MASTERMAN
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate Thursday 20th May 2010
Before
LORD JUSTICE THORPELORD JUSTICE ETHERTONMR JUSTICE MORGAN
In the matter of P (A child)
(DAR Transcript of
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Ms Frances Judd QC and Miss Judi Evans (instructed by Gartsides) appeared on behalf of the Appellant.
Robin Tolson QC and Owen Thomas (instructed by John W Davies and Partners) appeared on behalf of the Respondent.
Judgment
[1]HHJ Masterman in the Newport County Court delivered a judgment on 28 January which was reserved following a two-day hearing of the local authority's application for findings of fact in relation to two little girls, D, six, and E, three. It is unnecessary to recite in any detail the background, save to say that the little girls are the children of RP and LJ. LJ disqualified herself from the care of these two little girls and has taken no part in subsequent litigation. RP was the chosen carer when LJ failed. However, he too in turn failed when there was an investigation of injuries suffered by the children, leading to a finding by the same judge that they had suffered physical abuse at the hands of their father.[2]They were then placed in foster care and it was in that household that the girls, and particularly E, began to say worrying things suggestive of inappropriate sexual activity by the father prior to their removal to foster care. The local authority sought a finding from a judge. In a sense it was a superfluous exercise in that the findings of physical abuse were in themselves sufficient to demand alternative care for the two little girls. But the local authority were entitled to fortify their case and it was clearly sensible for HHJ Masterman to continue to try out issues in relation to these little girls.[3]So the starting point is the schedule prepared by the local authority identifying the additional findings that the judge was being invited to make. The findings were settled by counsel and extend to some four pages. The first seven paragraphs are essentially the selection of the highlights from the foster mother's diary of events during the period of her care. Paragraph 8 of the schedule I omit, since it is in a different category and relates to the behaviour of the younger child during the subsequent period of foster care. So it is paragraphs 1 to 7, followed by paragraph 9, that are crucial: for, having set out the very specific findings that the local authority sought, there then was paragraph 9, which is in very general terms. It reads:
"In the circumstance it is probable that the second respondent has behaved towards and touched [E] and/or [D] in an inappropriate sexual manner."
[4]So, turning now to the judgment, we see that

the judge in paragraph 7 analyses the local authority's schedule as follows:

"The Schedule, as it seems to me, raised two issues. The first is: are the diary entries fairly and accurately recorded? The second is: if so, what is their significance?"
[5]He then answers the first question commending the reliability of the evidence of the foster parent. He then records: “9. The second question the far more difficult question and is now the key issue in the case. By way of background there is evidence that [E] has been at ease when having supervised contact to her father and certainly there has been no sexualised behaviour in his company, that there are no reports of anything untoward occurring when she attends Nursery which she has done since the summer of 2009, in one or two of the recorded events what she says is contradicted by [D] and in one case she attributes ‘soreness’ to her father when she had not in fact seen him for some time. One must add to this that any references she makes to her father's behaviour must relate to when she was living with him: she was removed from him when 3 years and 3 months old and there is a question mark over the accuracy of the memory of a child of that age recalling events many months previously. 10. All this means that a court attempting to interpret what [E] has said must, as Miss Judi Evans, Counsel for [the father], rightly emphasised, tread very carefully, always remembering that [the father] does not have to prove his innocence but that it is for the Local Authority to establish the truth of the facts alleged on the balance of probabilities as underlined by Re B [2008] 2 FLR 141. The Local Authority invites the court, if this test is met, to conclude at the very least that some inappropriate sexual behaviour involving [E] has taken place, even if detailed findings cannot be made." The judgment continues with an investigation of each of the incidents drawn from the foster carer's diary, the incidents that comprise paragraphs 1 to 7 of the schedule.[6]He then, in paragraphs 26 and 27, considers aspects that are both positive and negative for the father in steadfast denial of any inappropriate behaviour. In surveying the negative the judge, in relation to the father's explanations for missed contact, said:
"This came over as a lame and, frankly, untruthful explanation. It is a shame that [the father] still attempts to justify his behaviour with transparent lies, just as he did during the hearing in July. It leaves me, once more, unable to place confidence in his evidence."
[7]The judge in paragraph 29 summarised the submissions that were advanced by Miss Evans in support of her case that no finding should be made against the father at all. Ms Judd QC, who appears this morning for the father, makes no criticism of that summary and does not suggest that the judge overlooked anything urged by Miss Evans on his behalf.[8]In paragraph 30 the judge then put into the other scale the factors that went for a positive finding and again that paragraph is not criticised. So the crucial paragraphs analysed by Ms Judd are paragraphs 31 and 32:
“31. Some of what [E] says may have an innocent explanation. Evidence of her apparently ‘masturbating’ would have no probative value on its own. Equally, evidence of her ‘trying to wee like Daddy’ should not be held against [the father]. I accept that [the father] would have several innocent reasons for touching [E] in the vaginal area. He has proffered explanations for some of what has been described. But why would [E] allege not only that her father had ‘played’ with her vagina but that he ‘touched’ her vagina ‘with his bum’ which in this context must surely mean his penis ‘and it hurt’ if that is quite untrue? Why would she say her father had ‘licked’ her vagina, and put his fingers in her vagina, if he had not? Even more worryingly, where has she got this concept of Daddy’s ‘bum’ (I presume penis) ‘coming out oh his house to say hello [E] I love you’? The obvious adult interpretation is that this is her father with an erection. These are descriptions that would be alien to a child of this age who had not been exposed to inappropriate sexual activity. 32. To ignore this evidence and say that it amounts to nothing probative would, in my judgment, be shutting one’s eyes to the obvious. On the other hand to make specific findings that certain sexually abusive behaviour took place, given the weaknesses in the evidence to which I have already referred, runs the risk of applying an adult interpretation too literally. I find myself driven to the middle ground of being persuaded that [the father] has been guilty of sexually inappropriate behaviour involving [E] without being able to say with any confidence that it was more than sexually motivated touching. I therefore find paragraphs 9 and 10 of the ‘Additional Findings’, but only insofar as they relate to [E], proved.”
[9]Having delivered that judgment on 28 January, the judge himself granted leave to appeal saying that the case was unique in his experience in the reliance on the hearsay evidence of such a young child. However, the skeleton presented by Miss Evans does not contend, and Ms Judd does not contend orally, that it was not open to the judge to make a positive finding when the only evidence was the hearsay evidence of a three year old. Ms Judd says that it would be rash to say never, but there may be exceptional cases where it is open to the judge to make findings on such fragile evidence.[10]The way the case is put in the skeleton is thus (the opening sentence at paragraph 19):
"Having analysed each piece of evidence, and rejected it as not meeting the requisite standard of proof, it was plainly wrong to go on in making a finding of sexual abuse in general terms that amounted to no more than a suspicion that sexual abuse had occurred."
[11]Ms Judd, who has argued her case this morning very eloquently, puts it somewhat differently. She says here HHJ Masterman was unable to make any specific finding on the evidence that had been advanced by the local authority, but on that very same evidence went on to make a generalised finding. That is plainly impermissible. If the evidence was not good enough to warrant any specific finding the judge could not then, on precisely the same evidence, damn the father in generalised terms.[12]Mr Tolson defends the judge, saying that in effect the judge was sensible to be cautious in relation to specific findings that in many instances required the interpretation of baby language into adult terms.[13]The conclusion that I reach is that the judgment of HHJ Masterman is a very carefully structured judgment that explains why he was not prepared to go all the way with the local authority to the acceptance of the specific, but was satisfied that the lower case had been proved. There is no foundation for the suggestion that this was a mere expression of judicial suspicion. Paragraph 31 is quite specific in recording a judicial finding. That finding was, in my judgment, clearly open to him on the reliable account of the foster mother and the low credibility rating of the father. I do not consider that the judge has, as it were, first rejected evidence and then resurrected the evidence to explain an adverse conclusion. In my opinion paragraphs 31 and 32 read together are not contradictory, and simply and effectively explain why he was not prepared to go beyond the lower case advanced by the local authority. So I would dismiss this appeal.[14]I agree.[15]I also agree.

Order

Appeal dismissed