K and D (Children: Sexual Abuse Findings), Re [2025] EWCA Civ 263

[2025] EWCA Civ 263Case No CA-2024-002665
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE FAMILY COURT AT EAST LONDON
HH Judge Reardon
ZE23C50473
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 18 March 2025
Before
LORD JUSTICE BAKERLORD JUSTICE JEREMY BAKERMR JUSTICE COBB
K AND D (CHILDREN: SEXUAL ABUSE FINDINGS)
Hearing Hearing date : 4 February 2025
Malek Wan Daud (instructed by Edwards Duthie Shamash) for the Appellant
Amanda Jepson (instructed by Local Authority Solicitor) for the First Respondent
Tracey McLevy (instructed by Duncan Lewis Solicitors) for the Second Respondent
Carol Simpson (instructed by LJC Solicitors) for the Third and Forth Respondents (by their children’s guardian)
Kate Hudson (instructed by Matwala Vyas LLP) for the Fifth Respondent
Approved JudgmentThis judgment was handed down remotely at 10.30am on 18 March 2025 by circulation to the parties or their representatives by e-mail and by release to the National Archives.
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[1]This is an appeal against findings of sexual abuse made in care proceedings concerning two girls – K, now aged 9, and D, now aged 7.[2]The appellant, hereafter referred to as “F”, is D’s father. The man who is believed to be K’s father has never met her. His whereabouts are unknown and he has played no part in the proceedings, brought by the local authority, the first respondent. The girls’ mother, the second respondent, is currently in a relationship with another man, hereafter called “X”, who was an intervenor in the proceedings and is the fifth respondent to this appeal. X’s father, hereafter called “Y”, was also an intervenor in the proceedings, but in the event he neither attended nor was represented at the hearing before the judge and has taken no part in this appeal.

Background

[3]The relationship between the mother and F started in 2015. At that point, the mother was pregnant and gave birth to K later that year. In 2017, she gave birth to D. After concerns were raised about the risk to the children as a result of the mother’s mental health difficulties and allegations of domestic abuse, the family was referred to the local social services in the South of England who carried out two child and family assessments.[4]In 2020, the mother separated from F and after making allegations of domestic abuse was granted a non-molestation order against F for a period of six months. In the same year, she started a relationship with X. By September 2021, the mother and the two children were living with X at his grandfather's home in the London area. In October 2021, the children were made subject to a child in need plan by the London local authority because of concerns about the mother’s mental health, neglect of the children’s needs, and X’s history of aggression, following earlier care proceedings concerning his own children.[5]Meanwhile, the non-molestation order against F had expired, and the mother arranged for his contact with the girls to resume. By the autumn of 2021, F was visiting the children at X’s home and staying overnight on alternate weekends, on some occasions sleeping on a mattress in the children’s bedroom.[6]Following further social work assessments in the first part of 2023, the local authority concluded that neither F nor X should be left alone with the children, who in May 2023 were made subject to child protection plans. Despite that conclusion, F’s overnight contact continued. X’s father, Y, also stayed overnight on occasions.[7]In July 2023, D’s school reported that she had been seen touching herself in the genital area on a number of occasions. In September, the school reported that K had been upset and complained of pain and itching in the genital area and that a yellow bruise had been seen at the top of her thigh. The local authority decided that the children should undergo sexual abuse medical examinations. The mother signed a safety plan under which she and the children moved to alternative accommodation and neither F nor X would have face-to-face contact with the children. But the accommodation arrangements broke down and the mother and children returned to X’s house.[8]At the first medical examination of K on 28 September, the examining paediatrician recorded the following abnormal findings, as summarised later by the judge:(1) mild perianal venous congestion (“PVC”);(2) dynamic anal dilatation (“DAD”);(3) a linear brown/ reddish mark at the 6-7 o'clock position, suggestive of a laceration;(4) an irregularity at the 4-5 o’clock position, also suggestive of a healed laceration;(5) labial fusion, which the examining doctor described as a common condition which would not raise concerns in most cases. The examinations of D revealed no signs of possible abuse.[9]Following the first examination, the mother agreed to the children being accommodated by the local authority under s.20 of the Children Act 1989 and they moved into foster placements. They have not returned to the mother’s care since that date.[10]At a second examination of K on 18 October, the same abnormal findings were recorded. As K suffers from a chromosomal abnormality, the paediatrician sought a specialist genetics opinion as to whether this might have any relevance to the findings. The specialist responded that he was unaware of anal dilatation being an associated phenotypic feature of K’s chromosomal abnormality, although as her condition was rare it was “theoretically possible”.[11]On 2 November 2023, the local authority started care proceedings in respect of the girls. On 23 November, they were made subject to interim care orders.[12]A consultant paediatrician, Dr Jamieson Carter, was jointly instructed to provide an expert report in the proceedings. In his written report, he reached the following conclusion:
“3.1 After careful consideration my opinion, based on the current published medical evidence and RCPCH guidance for paediatricians undertaking CSA examinations, is that it is not possible to be sure with any certainty whether K and D have been sexually abused. K has one physical sign, dynamic anal dilatation (DAD) that is significant and unusual and is associated with CSA (anal abuse in particular) in the absence of stool in the rectum/anal canal and PVC, another possible physical sign of CSA/anal abuse. 3.2 PVC is a physical sign seen in both sexually abused and non-sexually abused children. 3.3 K also had partial labial fusion which is seen in abused and non-abused girls, and the RCPCH states that there is insufficient evidence to determine the significance of labial fusion in relation to CSA. 3.4 On the balance of probability K’s physical signs indicates she may be a victim of CSA and therefore all attempts should be made to corroborate this. Although unlikely, it is not possible to exclude that her ano-genital signs may be associated with her genetic syndrome.”
[13]In his comprehensive report, Dr Carter made a number of additional relevant observations, which included the following, as later summarised by the judge:(1) Research into anal findings in cases of suspected child sexual abuse is limited and there are considerable differences of opinion in respect of how such findings should be interpreted.(2) Anal abuse may often leave no physical signs at all.(3) Possible alternative causes of DAD include chronic or severe constipation of which there was no evidence in K’s case. Similarly, there was no evidence of any neurological abnormality. It was therefore unlikely that there was any medical explanation for the findings.[14]After the children were received into care, the foster carer noted several incidents on which the local authority later relied in support of its case that the children had been abused. On one occasion, D was seen to put her hand between K’s buttocks in the bath. On another occasion, D had tickled the foster carer’s grandchild between the legs. On a third occasion, K had attempted to pull down D's underwear. Later that day, D had wiggled her naked bottom in K’s face.[15]During the proceedings, the local authority allocated social worker saw the children on a number of occasions. Neither child made any allegation, or said anything to suggest, that they had been sexually abused. Both children, however, made it clear to the social worker and to the foster carer that their experiences in the family home had not been happy. Their negative feelings were centred around X. K told the social worker that she did not want to go back to the mother’s house. In contrast, the children expressed positive views about F and looked forward to their contact with him. They described him as having been closely involved in their care and spoke of him sharing a bath with D and sleeping in K’s bed.[16]During the proceedings, parenting assessments concluded that the children should not be returned to their mother and X. The mother’s contact with the children was gradually reduced. F has not taken up contact since March 2024.[17]In the final version of the threshold document, the findings sought by the local authority were categorised under three headings – sexual abuse, exposure to domestic abuse between the mother and X, and neglect. For the purposes of this appeal, it is only necessary to consider the findings relating to sexual abuse which were particularised as follows:(1) K has been sexually abused whilst in her mother’s care. It is more likely than not that the abuse was anal.(2) The perpetrator of the abuse was: (i) the children’s mother or (ii) F or (iii) X or (iv) Y.(3) At the time of being sexually abused, K would have experienced pain and distress and would have shown ongoing signs of pain, discomfort and distress.(4) D is likely to have suffered sexual harm in her mother’s care as a result of the sexual abuse of K. The threshold document summarised the evidence relied on, namely Dr Carter’s report and the observations of the girls’ behaviour by school staff and in the foster placement. Through his solicitors, F’s responses to the findings sought were included in the final version of the threshold schedule.[18]In July 2024, X was made subject to a stalking protection order as a result of threats to and intimidation of the allocated social worker. At the issues resolution hearing in that month, the mother accepted that the girls should not return to her care and indicated that she would not oppose care orders on the basis of the local authority care plans that the girls remain in their current foster placement. Despite those concessions, the local authority indicated that it wished to proceed to a final hearing at which it would seek the findings set out in the threshold document. After the hearing in July, however, F stopped giving instructions to his solicitors who were unable to make contact with him. He did not attend the pre-trial review in August 2024 or the final hearing in September 2024.[19]At the start of the final hearing, F’s solicitors informed the judge that they considered that they had sufficient instructions on the allegations of sexual abuse to challenge the evidence presented by the local authority. The judge therefore directed that they should remain on the record. At the hearing, oral evidence was given by Dr Carter, two members of the school staff, two social workers, the mother, and X. Counsel instructed on behalf of F cross-examined the witnesses and made submissions on his behalf. After a hearing over six days, judgment was reserved and delivered on 25 October 2024.[20]In her introduction at the start of the judgment,

the judge recorded that:

“… the outcome is not in dispute in terms of the children's living arrangements and the orders which will underpin them. It is agreed by both the mother and the father [F] that the children should remain in long term foster care.”
She also recorded that, at the conclusion of the evidence, the local authority no longer sought a finding that the mother was a possible perpetrator of sexual abuse, but sought a finding against her of failure to protect. She also recorded that F had not attended the hearing and explained the part taken by his legal representatives on his behalf. She also recorded that, although Y had been served with the bundle of evidence, he had not attended nor been represented at the hearing.[21]The judge then summarised the background in greater detail than the summary set out above. She then gave a very detailed exposition of the relevant legal principles. She set out a careful analysis of the medical evidence given by the examining clinician and the expert paediatric evidence given by Dr Carter. After citing extensively from Dr Carter’s report, she added points arising from his oral evidence:
“…in all cases of possible child sexual abuse, the medical evidence is only one part of the jigsaw. On three occasions in his report he said that it was not possible to say with certainty, or so that he was sure, that sexual abuse had “definitely” occurred. He emphasised that it would be necessary for the court to look at the full picture before making a finding. The physical signs should be considered alongside other possible indicators of sexual abuse such as changes in behaviour, including sexualized behaviour, and it would be important to ensure that the children were given an opportunity to provide an account of any abuse they might have experienced. Dr Carter identified some reported presentation and behaviours on the part of the girls which he considered were possible indicators of child sexual abuse, but observed that each of these could also have an alternative explanation.”
[22]The judge then set out in some detail the evidence given by school staff as to the behaviour of the two girls and the evidence of the social workers, including direct work which the allocated social worker, Ms S, had carried out with the girls, and reports provided by their foster carer. She referred to the harassment of the allocated social worker, Ms S, by X. She noted:
“98. Despite opportunities provided by Ms S in what I am satisfied was sensitive and child-led direct work undertaken over the space of several months, neither K or D has spoken to Ms S, or indeed to anyone else, about any behaviour by any person towards them which might be characterised as sexual abuse. 99. I have not lost sight of that fact, but in considering the weight I should give to it I must also remind myself that many children and indeed adults, even when in a safe environment and provided with the opportunity, do not speak about their experiences of sexual abuse.”
[23]The judge then set out the evidence of the lay parties. She found that the mother had not told deliberate lies, but on a number of issues her evidence had been vague and she had “struggled to give a coherent account of events over the relevant period and particularly to explain the choices she made at that time”. The judge then referred to a matter which the mother had mentioned for the first time during her evidence:
“It emerged during the course of the mother’s evidence that for about the first 18 months of her cohabitation with X a friend of his … was staying in the home and sleeping each night in the couple’s bedroom. The mother had not mentioned this unusual arrangement before and did not seem to think that, although clearly not comfortable with it, she would have had any grounds to object.”
The judge then recorded that, at the end of the evidence, the local authority had decided that the mother should not remain on the list of potential perpetrators of sexual abuse. She observed that, having heard the mother’s evidence, she considered that had been the right decision.[24]Turning to X, the judge noted that he had a significant history of trauma, having been abused as a child, and subsequently diagnosed with a series of personality disorders. She observed, however, that he was “… an intelligent and articulate man who has clearly worked hard to come to terms with his past and to understand the reasons why he reacts as he does to figures in authority, particularly social workers who he blames (as a class) for having failed to protect him from abuse as a child.” She then made the following observation about X’s evidence:
“X reacted with visceral horror to the suggestion that he might have sexually abused K. Like the mother, he has expressed scepticism about the allegations of sexual abuse and, although on occasions during his evidence he drew attention to behaviours of the father [F] which he thought were inappropriate, such as wiping the children’s bottoms when they were capable of doing that themselves, he also said that he did not think the father [F] was someone who would sexually abuse a child.”
[25]The judge recorded that in his written statement F had mentioned finding photographs of the girls’ naked bottoms on an iPad used by the children. Neither the mother nor X had referred to this in their statements but both accepted in oral evidence that the pictures had been found. The judge observed that it was troubling that neither the mother nor X mentioned this to the local authority, either at the time or later in September after the concerns about sexual abuse became acute.[26]Having summarised the evidence, the judge set out her conclusions, first, on the issue whether the children had been sexually abused. “117. In considering this allegation I have tried to maintain an overview of the evidence and to consider alternative explanations. I have done my best to guard against confirmation bias: that is, the interpretation of evidence, for example behaviours that may be either sexualised or innocent, in a certain way to make it fit with other pieces of evidence.118. I have concluded that the local authority has discharged the burden of proof and that it is more likely than not that direct sexual abuse of K, by way of anal touching or penetration, has taken place. I make this finding for the following reasons.119. First, the medical evidence is, at the very least, quite strongly suggestive of anal abuse. I acknowledge that the court must always be alert to the possibility of an unknown cause, and also remind myself of the caution urged by Dr Carter in basing firm conclusions on a research base which may not be completely secure. Nevertheless, Dr Carter describes the findings of K’s two medical examinations, in particular the DAD, as significant and unusual. There is no obvious alternative explanation for this finding. A neurological condition has been excluded. An association with K’s chromosomal abnormality cannot be ruled out but appears unlikely. There is no convincing evidence that K was suffering from constipation, certainly not to the extent that Dr Carter suggests would be required to cause DAD, that is “chronic or severe”.120. The other physical signs observed in the medical examinations, particularly the PVC and the possible healed lacerations observed by [the examining doctor], would carry little weight if present in isolation but are capable of supporting a finding based primarily on other evidence.121. Secondly, the children’s presentation and behaviours over the relevant period were, in my view, highly unusual. Between them K and D have demonstrated a number of different presentations which are recognised as indicators of possible sexual abuse. These include genital touching; sexualised play, which in my judgement goes beyond sort of exploration normally seen in children of this age; genital pain and discomfort, in the absence of infection or another medical cause; and toileting difficulties and incontinence. I fully accept that each of these presentations could, taken individually, have an innocent explanation. However cumulatively they build up a compelling picture.”[27]The judge noted that the children’s unhappy experience in the family home could not safely be attributed to sexual abuse, although she found that the environment in which the children were living was one in which there was considerable scope for sexual abuse to occur. She continued:
“123. I have taken into account the evidence pointing the other way. The main factor pointing away from a finding is that there has been no report made by either child despite several opportunities for them to do so. The direct work undertaken by Ms S was appropriate and sensitive and, at least until she was removed from the case in April 2024, she had built up the children’s trust. I think it likely that they do feel safe in foster care, particularly as I assume they have now been told that they will not be returning to live with their mother and X. In those circumstances the absence of any allegation of sexual abuse is relevant and carries weight. It may, however, be explained by the fact that, as is well known, victims of sexual abuse often do not speak about what has happened to them, because of fear of their abuser, feelings of shame or because, as is often the case for children, they simply do not have the words. 124. I therefore make the finding sought by the local authority. I also make the finding, which I do not think can be realistically disputed, that D also has suffered sexual harm. D’s behaviours support a finding that she has been exposed in some way to the abuse perpetrated against K, either as a direct witness or because K, as a result of her own experiences, has engaged in sexualised behaviour together with D or in her presence.”
[28]The judge then turned to the identification of the perpetrator of the abuse. She noted that it emerged during the evidence that friends of X had stayed in the home so the possibility of an unknown perpetrator existed although, in the judge’s view, it was remote. She noted that both X and F had the opportunity to groom and abuse the girls and that the mother was “not undertaking the close monitoring and supervision that the local authority expected”. She found (paragraph 129):
“F, who spent many months sleeping in the children’s bedroom, had an ideal opportunity to perpetrate sexual abuse unobserved, and at times when K would have been sleepy and therefore vulnerable.”
She recorded that F had not slept in their room during his visits in September 2023 but noted that the medical evidence did not enable her to date when the abuse had occurred, that K’s pain and discomfort, which had been observed at school that month, could have been present during the summer holidays when the children had not been seen by professionals.[29]The judge noted that D’s behaviours which had been consistent with abuse had started before Y met the girls. She added that “in reality Y’s opportunity to perpetrate abuse was very limited”. She then considered the significance of the girls’ negative opinions of X (paragraph 133):
“I have considered what weight to give to the fact that both children, on the whole, have expressed negative views about X and have spoken about the father [F], in contrast, in broadly positive terms. The picture is complicated by the fact that the children’s negative memories are clearly centred around the volatile relationship between their mother and X, and X’s anger and aggression which they experienced as frightening. In those circumstances I do not consider that the children’s negative views about X are capable of supporting a finding against him of sexual abuse. Similarly, I do not consider that the positive views which the children have expressed about F carry significant weight in this context. In circumstances where they were living in fear of X’s aggressive outbursts it would be natural for them to see F as a protective factor who would remove them from danger, usually by taking them to their room when X’s anger was out of control.”
[30]The judge then considered “the role of inferences in the fact-finding exercise”. She concluded that it “would not be appropriate” to draw an adverse inference against Y for his failure to participate in the proceedings, on the basis that this was “explicable” as there were no benefits to him from participating and no clear risks from not. She contrasted this with F’s position in terms which lie at the heart of this appeal and which should therefore be quoted in full:
“136. F’s position is very different. This is a father who in 2020 was concerned enough about the safety of his daughter and stepdaughter to make a referral to the local authority. Thereafter, once the non-molestation order expired and the mother permitted him to have contact, he travelled regularly … to visit them. It is difficult to reconcile that level of commitment with F’s actions in these proceedings. Initially he instructed solicitors and filed two witness statements but then decided, at the point when it became clear that there would be a contested hearing at which the court would be asked to make findings on the allegations of sexual abuse, to cease contact with his solicitors and to disengage from the proceedings. I note that F also ceased attending contact in February 2024, at the point when Dr Carter’s report was filed. 137. By acting in this way F has deprived himself of regular contact with the children, which the local authority were offering. He has also put himself at grave risk of findings being made which will significantly jeopardise his chances of resuming contact in the future. Finally he has detached himself from a process which has been set up to establish the truth about whether his daughter and stepdaughter have suffered serious sexual harm. 138. I agree with the local authority that it is difficult to think of other explanations for F’s behaviour other than that he is unwilling to expose himself to challenge in cross-examination, because he knows that he has no truthful answer to give to the allegations against him. 139. Reviewing the evidence against each of the potential perpetrators, I have concluded that it is more likely than not that the perpetrator of the sexual abuse suffered by K was F. The fact that he had multiple opportunities to perpetrate abuse, together with the strong inference drawn from his refusal to attend this hearing and expose himself to cross-examination, together provide sufficient evidence for a finding on the balance of probabilities.”
[31]Next, the judge made a finding that, from July 2023 onwards, the mother failed to protect K from being sexually abused. Finally, she set out her reasons for approving the local authority care plan for both children to remain in long-term fostering. Neither of those matters are the subject of this appeal and it is unnecessary to recite the judge’s reasoning for these decisions.

The appeal

[32]On 28 November 2024, F’s solicitors filed a notice of appeal against the finding that he had sexually abused K. Permission to appeal was granted on 13 November 2024.[33]In section 5 of the appeal notice, under the heading “Other information required for the appeal”, the appellant’s solicitors wrote:
“The appellant wishes to appeal the findings made against [him] in respect of the sexual abuse. Grounds to appeal attached. The appellant did not attend the Final Hearing as his anxiety was heightened, he was being abused by the mother and X. He was frightened of X as he says he knows how violent X can get, he had also lost his job, had no access to his phone or emails. An inquiry agent was instructed to locate the appellant given he was lying low in fear of X.”
[34]Attached to the appeal notice was a document headed “Applications”. It started by stating:
“The Appellant’s application is twofold. An application that the findings made by HHJ Reardon on 25.10.24 is set aside pursuant to r. 27.5 FPR 2010. Namely that the findings were made in his absence for the reasons set out in the attached witness statement. Further and alternatively, An application for permission to appeal the decision/findings of HHJ Reardon dated 25.10.24 out of time….”
[35]Before the appeal hearing, it was unclear from the skeleton argument filed on F’s behalf how the argument on the first application was framed. In the event, at the start of the hearing, Mr Wan Daud on behalf of F informed us that he would not be pursuing an application to this Court under FPR rule 27.5 but rather would simply be pursuing the appeal. Nevertheless, the point took up considerable time in this Court’s preparation for the hearing, and as this issue has apparently not arisen before on an appeal in a family case it may be helpful to set out briefly the legal position. 36. FPR 2010 rule 27.5, headed “Application to set aside judgment or order following failure to attend”, provides:
“(1) Where a party does not attend a hearing or directions appointment and the court gives judgment or makes an order against him, the party who failed to attend may apply for the judgment or order to be set aside. (2) An application under paragraph (1) must be supported by evidence. (3) Where an application is made under paragraph (1), the court may grant the application only if the applicant – (a) acted promptly on finding out that the court had exercised its power to enter judgment or make an order against the applicant; (b) had a good reason for not attending the hearing or directions appointment; and (c) has a reasonable prospect of success at the hearing or directions appointment.” (a) acted promptly on finding out that the court had exercised its power to enter judgment or make an order against the applicant; (b) had a good reason for not attending the hearing or directions appointment; and (c) has a reasonable prospect of success at the hearing or directions appointment.”
[37]Rule 27.5 was a new provision in family proceedings introduced in the 2010 Rules. There is, so far as I am aware, no reported case in which it has been considered. It is modelled on the equivalent provision in the Civil Procedure Rules – CPR rule 39.3. Although neither rule says so expressly, both rules plainly envisage that the application to set aside should be made to the judge who delivered the judgment or made the order.[38]The problem of how the provisions in CPR rule 39.3 are to be applied when a party also wishes to appeal against the judgment or order on other grounds was considered by this Court in Bank of Scotland v Pereira and others [2011] EWCACiv 241. The observations of Lord Neuberger MR at paragraphs 35 to 47 are plainly applicable to FPR rule 27.5.[39]At paragraphs 35-36, Lord Neuberger MR said:
“35. CPR 39.3 exists essentially to ensure that a defendant has an opportunity to present her case to a judge. If she had no good reason for not attending the trial, she has had the opportunity to appear and did not take it. If she fails to apply to set aside the order promptly, she has also lost the opportunity afforded to her by the rules to set aside the original judgment, and present her case at a rehearing. If she fails to persuade the judge at the CPR 39.3 hearing that she would have an arguable case at a rehearing, setting aside the original judgment would be pointless – and anyway she has had the opportunity to put her case to a judge, namely the judge hearing the CPR 39.3 application. 36. While the purpose of CPR 39.3 is thus readily apparent, the relationship between a defendant's application under CPR 39.3 to set aside an order, and any attempt to appeal against the order is more difficult. Experience and common sense suggest that it may well be impossible to lay down rules in that connection which would cover every case. However, I consider that there are six points which can at least act as guidelines, and would apply in the great majority of cases.”
[40]Lord Neuberger proceeded to set out six points, of which three – the first, second and sixth – are relevant to the present case:
“37. First, where the defendant is seeking a new trial on the ground that she did not attend the trial, then, even though she may have other possible grounds of appeal, she should normally proceed under CPR 39.3, provided she reasonably believes that she can satisfy the three requirements of CPR 39.3. The fact that she wishes to raise other arguments for attacking the trial judge's decision should not preclude her proceeding under CPR 39.3, because that is the specific provision which applies if she did not appear at the trial (and gives her a potential right to a new trial) as Jack J pointed out. Further, if she has a retrial, the other arguments which she wishes to raise could be raised at the retrial (and they may be considered by the judge who hears her CPR 39.3 application)….If a defendant seeks to appeal without first making a CPR 39.3 application, when she could have made such an application, the appellate court could still entertain her appeal, although particularly following our judgments in this case, it will normally require unusual facts before it should do so. 38. Secondly, if the defendant concludes that she cannot establish that she had a good reason for not attending the trial and/or that she made her CPR 39.3 application promptly, it would obviously be silly for her to make a CPR 39.3 application. In such a case, she can nonetheless seek to appeal against the trial judge's decision in the same way as any other defendant. I do not see why the rights of appeal of an unsuccessful defendant should be any different in principle depending on whether the judgment was given in her presence or her absence. If the trial judge made an appealable decision, either in his final judgment or during the hearing, the defendant's ability to challenge the decision by way of an appeal under CPR 52 should in principle be the same. CPR 39.3 is, in that sense, merely an additional potential course given to a defendant who, with good reason, was unable to attend the trial. 39. It is important to emphasise the words "in principle" in the previous paragraph. In practice, a defendant who has not attended the trial may face greater difficulties in pursuing an appeal than one who has…. … 47. Sixthly, if the defendant makes no CPR 39.3 application, but appeals the trial judge's decision and seeks to put in new evidence or an order for a retrial, …. as it will not have been determined whether the three requirements of CPR 39.3.5 have been satisfied, the appellate court may have to make that decision for itself, unless it decides that the defendant should first have applied under CPR 39.3 to set aside the trial judge's order (in which case the appellate court may nonetheless decide the issue itself, remit the issue to the court below as a CPR 39.3 application, or make some other appropriate order).”
[41]On reading the parties’ skeleton arguments on the present appeal, I was uncertain as to how we would be asked to deal with this issue. Although no application to file fresh evidence had been made to this Court, the appeal bundle included a statement signed by F setting out his explanation for his failure to attend the fact-finding hearing. The skeleton arguments had not cited Bank of Scotland v Pereira nor addressed the issues about the relationship between an application to set aside an order under FPR rule 27.5 and a proposed appeal against the order. Before the hearing, we drew the parties’ attention to the authority and indicated that we would like their submissions to address(a) the appropriate procedure for seeking to set aside for non-attendance under FPR rule 27.5 and(b) the application of the principles in Bank of Scotland plc v Pereira in the family jurisdiction. In the event, as already noted, at the start of the hearing, Mr Wan Daud on behalf of F informed us that he would not be pursuing an application to this Court under FPR rule 27.5 but rather would simply be pursuing the appeal.[42]In my view this was the right course. Applications under CPR rule 39.3 and under FPR rule 27.5 should be made to the trial judge, not to the appellate court. Where a party is seeking a new fact-finding hearing in care proceedings on the grounds that they did not attend the hearing, they should apply to the trial judge under FPR rule 27.5, provided they reasonably believe that they can satisfy the three requirements of the rule. They should take this course even though they may have other grounds for challenging the findings on appeal, for the reasons explained by Lord Neuberger in Bank of Scotland plc v Pereira at paragraph 37.[43]I now turn to the substantive appeal against Judge Reardon’s findings.[44]In summary, the grounds of appeal appended to the appeal notice were as follows:(1) The judge erred in her decision making when she found that K had been sexually abuse. She found that the medical evidence was strongly suggestive of anal abuse. This finding was contrary to the medical evidence.(2) The judge found that D had suffered sexual harm. There is no evidence to support such a finding.(3) The judge found that D witnessed sex abuse, or that K has engaged in sexualised behaviour together with D. There is no evidence to support this finding.(4) Further, the judge based a finding that F was the sole perpetrator of sexual abuse on K on an inference of his non-engagement in contact, and non-engagement and attendance at the final hearing. F was not aware that the judge might make such a finding. Such a finding without warning to him is a breach of his Article 6 rights. In making the finding, the judge failed to take into account that the threshold criteria had been conceded, and the welfare outcome agreed by F prior to the hearing.(5) The judge wrongly relied on a finding that that F had ceased to attend contact at the point when the expert’s report was filed. In fact, the report was filed after F had stopped attending contact.[45]F’s appeal was opposed by the local authority and the children’s guardian. It was supported by X on grounds 1 to 3 but opposed on grounds 4 and 5. The mother was neutral as to the outcome.[46]Under the first ground, it was asserted that the judge had made fundamental errors in the analysis of the evidence. No allegations or disclosures of sexual abuse have been made. The children have had ample opportunity to make any such disclosure to their foster carer, social worker or school, all of whom they have good relationships with. The fact that the children have not said anything to anyone was not given proper and adequate weight by the judge. In support of the finding that abuse had occurred, the judge erroneously relied on isolated instances of K’s behaviour which lacked the specificity or consistency required to support such a serious finding. The individual examples of behaviour cited by the judge could each have had an innocent explanation and there was no justification for the judge’s conclusion that they were indicative of abuse.[47]It was further submitted that the judge had wrongly interpreted the evidence of Dr Carter, who had been clear in both oral evidence and his report that no diagnosis or finding of sexual abuse could be based on medical examination findings alone, which, he stressed, was only one part of the jigsaw.[48]I do not accept any of these criticisms. The judge’s assessment of the evidence on this issue was conspicuously thorough and fairly balanced. Her analysis of Dr Carter’s evidence was detailed, comprehensive and accurate and there is nothing to support the submission that she misinterpreted any part of it. She acknowledged that “the court must always be alert to the possibility of an unknown cause”. She correctly summarised Dr Carter’s opinion that the findings of K’s two medical examinations were “significant and unusual”, in particular the finding of DAD for which there was “no obvious alternative explanation”. Her conclusion that the medical evidence was “at the very least, quite strongly suggestive of anal abuse” is a fair and accurate summary of Dr Carter’s opinion. She recited his evidence that “the medical evidence is only one part of the jigsaw”, that “it was not possible to say with certainty … that sexual abuse had ‘definitely’ occurred”, and that “it would be necessary for the court to look at the full picture before making a finding”. She followed his advice that “the physical signs should be considered alongside other possible indicators of sexual abuse such as changes in behaviour”. She concluded in this case that the children’s behaviour and presentation had been “highly unusual”. When considering this evidence, she carefully warned herself of the need to guard against confirmation bias. Whilst accepting that, taken individually, each presentation could have an innocent explanation, she found that “cumulatively they build up a compelling picture.”[49]The judge gave equally careful consideration to the fact that neither child had made any allegation of abuse. She described this as “the main factor pointing away from a finding” that abuse had occurred. She acknowledged that the absence of any allegation was “relevant and carried weight”. She reminded herself, however, that, for various reasons, victims of abuse often do not speak about what has happened.[50]Faced with such a rigorous and thorough analysis by a trial judge, it would be wholly wrong for this Court to interfere with her conclusion that K had been sexually abused. The assessment of evidence, and the apportionment of weight to be attached to each piece of evidence, are matters for the judge at first instance. An appeal court will not interfere with findings of fact by trial judges unless there is a very clear justification for doing so. Manifestly there is no such justification in this case.[51]The second and third grounds can fairly be considered together. It was submitted on behalf of F that the judge had improperly interpreted D’s minor and ambiguous behaviours as indicative of sexual abuse, despite the absence of corroborating evidence. D has made no allegations of abuse and there is no medical evidence to support such a finding. There was also no evidence to support a finding that D witnessed sexual abuse and the evidence of possible sexualised behaviour between the girls was confined to two ambiguous occasions witnessed by the foster carer. This was an insufficient basis on which to conclude that D had suffered sexual harm or that D witnessed sex abuse, or that K has engaged in sexualised behaviour together with D.[52]It is true that this evidence of possibly sexualised behaviour is less extensive than often found in similar cases. But the judge’s conclusions about D were expressed in careful and measured terms. She did not find that D had been sexually abused, but rather that she had “suffered sexual harm” through being “exposed in some way to the abuse perpetrated against K” in one of three ways(i) as a direct witness of the abuse,(ii) because K has engaged in sexualised behaviour with D or(iii) because K has engaged in sexualised behaviour in her presence. On the totality of the evidence, she was entitled to reach those conclusions. The warning given to appellate courts not to interfere with findings of fact by trial judges unless compelled to do so “applies not only to findings of primary fact, but also to the evaluation of those facts and to inferences to be drawn from them” (per Lewison LJ in Fage UK Ltd v Chobani UK Ltd [2014] EWCA Civ 5 at paragraph 114). There is no basis for this Court interfering with the judge’s findings concerning D.[53]Under the fourth ground, it was submitted that there was no or no proper evidence to support the finding that F was the perpetrator of the sexual abuse which the judge concluded K had suffered. A crucial factor in the judge’s finding was the inference drawn by the judge from F’s failure to attend the hearing, which Mr Wan Daud described as erroneous. No warnings had ever been given to F that if he failed to attend a hearing that he could be found to be the perpetrator of sexual abuse. Without such a warning, it was unfair and unjust for such a finding to be made.[54]In the light of these submissions, we asked to see the threshold document, which had not been included in the appeal bundles. As is often the case, the document had been through several iterations, but in each version F was identified as a possible perpetrator of sexual abuse. In the final version as summarised above, the local authority sought findings that K had been sexually abused and that the perpetrator was one of four named people, including F. In his response to the proposed findings, F stated (through his solicitors) that he “denie[d] any allegations in respect of the alleged sexual abuse” and that he “denie[d] being the perpetrator”. It follows that F knew, or ought to have known, that at the final hearing it would be open to the court having heard the evidence to find that K had been sexually abused and that he was the perpetrator. There was no need for any warning to be given that these findings could be made in his absence. In those circumstances, it was neither unfair nor unjust for such findings to be made, provided the judge was entitled to make them on the totality of the evidence.[55]Mr Wan Daud put forward several arguments in support of his case that the judge was not entitled to make a finding that F was the perpetrator. First, he submitted that the timing of the opportunity F had to abuse K did not coincide with the timing of the behaviours and presentations on which the judge relied in finding that abuse had occurred. In particular, some of those presentations had occurred during a gap in F’s contact over several weeks in the summer of 2023. Secondly, he submitted that there was no proper basis for differentiating between F and Y when considering whether to draw any inference from their failure to attend the hearing. A finding that Y had abused K would have had consequences for his own contact with family members. Thirdly, he submitted that, when considering the possible explanations for F’s non-attendance, the judge failed to give any or any adequate weight to other possible explanations, including the fact that the welfare outcome for the girls had been agreed many months before.[56]It should be noted that, in making submissions to this Court about the possible explanations for F’s non-attendance, Mr Wan Daud did not seek to rely on the recent statement signed by F as fresh evidence in support of the appeal. Accordingly, this Court was not required to address the matters raised by Lord Neuberger as his sixth point at paragraph 47 of his judgment in Bank of Scotland v Pereira. It was Mr Wan Daud’s submission that the judge had been wrong to draw the inference on the basis of the evidence and information before her.[57]The judge’s analysis of the identity of the perpetrator was as careful and thorough as the rest of her judgment. She expressly considered the opportunities each of the possible perpetrators had to abuse K. She considered the arguments about timing, noting that the medical evidence did not allow the court to date when the abuse occurred. She considered the girls’ expressed views about F and X – their positive views about F and their negative views of X. She considered the inferences which could be drawn from the failure of Y and F to attend the hearing. Although she did not expressly refer to it in the concluding section of her judgment, it is clear from reading the judgment as a whole that she took into account X’s oral evidence, including what she described as his “visceral horror to the suggestion that he might have sexually abused K” and his evidence that he did not think F was someone who would sexually abuse a child.[58]Ultimately, the judge concluded that the strongest evidence as to the identity of the perpetrator was the fact that F had “multiple opportunities” to abuse K while sleeping in the same bedroom and the “strong inference” she drew from F’s disengagement from the proceedings because it was “difficult to think of other explanations for F’s behaviour other than that he is unwilling to expose himself to challenge in cross-examination”. Here again, it is important to bear in mind the limited role of an appellate court when considering an appeal against a finding of fact. This Court will not interfere with a judge’s evaluation of facts or inferences drawn from them without a clear justification. Although another judge might have concluded that it was not possible to identify a perpetrator of the abuse suffered by K, it was certainly open to this judge to conclude on the totality of the evidence that the perpetrator was F.[59]There may be some merit in the point raised in the fifth ground of appeal. It seems the judge was mistaken in stating, in the last sentence of paragraph 136 of the judgment, that “F also ceased attending contact in February 2024, at the point when Dr Carter’s report was filed.” Reading the judgment as a whole, however, it is clear that this point was not material to the inference adverse to F drawn by the judge or her reasons for finding that he was the perpetrator. The principal basis for the adverse inference was, as stated earlier in the same paragraph, that F “decided, at the point when it became clear that there would be a contested hearing at which the court would be asked to make findings on the allegations of sexual abuse, to cease contact with his solicitors and to disengage from the proceedings.” The point raised in the fifth ground does not, therefore, justify interfering with the judge’s finding that F was the perpetrator.[60]In short, the judge’s findings, reached after a painstaking analysis, were plainly open to her on the totality of the evidence. For those reasons, I would dismiss the appeal. LORD JUSTICE JEREMY BAKER[61]I agree. MR JUSTICE COBB[62]I also agree.

Cited in 4 later judgments