H (Children) (Findings of Fact), Re [2025] EWCA Civ 993

[2025] EWCA Civ 993

Case No CA-2025-001133

Case No CA-2025-001160

IN THE COURT OF APPEAL (CIVIL DIVISION)

Venue ON APPEAL FROM THE FAMILY COURT AT BIRMINGHAM

UPPER TRIBUNAL JUDGE MANDALIA (sitting as a Deputy High Court Judge)

WV23C50431

Venue Royal Courts of Justice, Strand, London, WC2A 2LL

Date 28/07/2025

Before

LORD JUSTICE BEAN

LORD JUSTICE DINGEMANS

LORD JUSTICE COBB

Re H (Children) (Findings of Fact)

Hearing Hearing date : 16 July 2025

Julia Cheetham KC (who did not appear below), Tracy Lakin and Lawren Dobson (instructed by Clarkes Solicitors) for the First Appellant (Intervenor: CH)

Frank Feehan KC (who did not appear below) and Hannah Court (instructed by PCB Solicitors) for the Second Appellant (Mother)

Gemma Taylor KC and Sarah Morgan (instructed by Local Authority Solicitor) for the First Respondent (Local Authority)

Elizabeth Isaacs KC (who did not appear below) and Bethany Stirling (instructed by Talbots Law LLP) for the Second Respondent (Father)

Matthew Maynard and Holly Hilbourne-Gollop (instructed by Anthony Collins Solicitors LLP) for the Third and Fourth Respondents (By their Children’s Guardian)

Approved Judgment

This judgment was handed down remotely at 10.30am on 28 July 2025 by circulation to the parties or their representatives by e-mail and by release to the National Archives.

.............................

Introduction

[1]On 13 November 2023, public law care proceedings under Part IV of the Children Act 1989 (‘CA 1989’) were issued in respect of two children – a boy, H, now aged 5, and his younger sister R, now aged 4. Case management directions steered the case towards a fact-finding hearing which took place, after many months of delay, in March 2025 before Upper Tribunal Judge Mandalia sitting as a Deputy High Court Judge in the Family Court (‘the Judge’). The hearing took eight court days. On 24 April 2025, the Judge delivered a reserved judgment, making a number of adverse factual findings against the children’s parents and also against CH, who is the mother’s brother (the children’s maternal uncle), an intervenor in the proceedings.

[2]CH and, separately, the children’s mother (‘the mother’) appeal against a number of those factual findings. The appeals are supported by the children’s father (‘the father’) and also by the Children’s Guardian on behalf of the two subject children. The appeals are opposed by the local authority which is the applicant for the care order (‘the Local Authority’).

[3]Permission to appeal was granted by Baker LJ on 2 July 2025.

[4]These proceedings are already in their 90th week, appreciably outside the mandatory timeframe set for such cases by section 32(1)(a)(ii) CA 1989; the delay is unacceptable. The final welfare hearing within these proceedings was scheduled to have been heard last month (June 2025), but has been re-listed for a date in October 2025.

[5]For the reasons set out below, I would allow the appeal and would set aside a number of the relevant findings which are challenged (see §85 below). Subject to my Lords’ views, I would propose to direct that the proceedings are remitted to the Designated Family Judge for Wolverhampton to re-allocate and case manage further towards a final composite hearing (i.e., a welfare hearing, accommodating any re-consideration of disputed facts). Strenuous efforts should now be made on all sides to conclude these proceedings before they reach their second anniversary.

Background

[6]The case has a complex background history. Fortunately, it is unnecessary for the purposes of this appeal to rehearse it at length.

[7]The mother was just 19 years old when she gave birth to H, and is currently 25 years old. CH is one of her three younger siblings and is now 20 years old. CH and his two younger siblings were the subject of Part IV CA 1989 care proceedings which concluded in 2017; the mother was approaching adulthood at the time of those earlier proceedings and was not therefore the subject of that application. In those earlier proceedings, HHJ Lopez had found that all four siblings had been subjected to serious sexual abuse; the parents of the mother and CH (i.e., the maternal grandparents of the subject children in the current proceedings) had, in the finding of HHJ Lopez, failed to protect their children from this abuse. CH had demonstrated sexualised behaviour which was found to be likely to be attributable to his abuse. At the conclusion of those proceedings, CH and the two younger siblings were removed into foster care; the mother had remained living with her parents. On leaving care in December 2022, CH returned to live with his parents.

[8]The mother is a vulnerable adult; she suffers with seizures and has borderline cognitive ability. When she gave her oral evidence at the fact-finding hearing, she was assisted by an intermediary. We were advised (this is not apparent from the judgment) that when giving evidence, the mother suffered from a seizure.

[9]The father is 29 years old; he suffers from depression and anxiety. He has one other child. The mother and father are no longer in a relationship, but continue to reside together.

[10]Like the mother, CH is a vulnerable adult, having been formally assessed with borderline intellectual functioning, Attention Deficit Hyperactivity Disorder, Reactive Attachment Disorder, and Post Traumatic Stress Disorder. He has a conviction in 2021 for taking a child without lawful authority (contrary to s.2(1)(a) Child Abduction Act 1984), and he is the subject of a Sexual Risk Order which remains in force until 2028. At earlier stages of the current proceedings, two different case management judges had questioned the proportionality of a hearing to determine findings of fact against CH as an intervenor, but on each occasion had concluded that the application should proceed. Throughout the hearing, CH had the benefit of an intermediary to assist him, and ground rules were established and maintained to enable him to participate and give evidence.

[11]On 23 October 2023, the mother and father signed an agreement to the effect that they would not allow H and/or R to have unsupervised contact with the maternal grandparents, and no contact with CH. On 27 October 2023, a more stringent working agreement was signed which prohibited any contact whatsoever between the children and the maternal grandparents. On the very same day, a nursery worker reported that she had seen the maternal grandmother with R walking down the road. Ms Taylor KC confirmed to us that this may well have been the tipping point which prompted the launch of proceedings.

[12]At the time the protective measures were taken in respect of the children in November 2023, it is agreed by all parties that they had suffered or were likely to suffer significant harm (the ‘threshold criteria’: section 31(2) CA 1989), on the basis that: i) They had been exposed to the parents’ volatile relationship, as a result of which they had been caused emotional harm; ii) Both parents accepted that they had failed to address issues with their mental ill health and psychological difficulties, and this had negatively impacted on their ability to parent and safeguard the children; iii) The father accepted that he had physically chastised the children by smacking. Specifically, this had been alleged by H at nursery in July 2023.

[13]The children were removed into foster care together in November 2023, where they have remained. The foster carers were new to the role; H and R are their first foster children. Over the months which followed, H made a number of allegations to his foster mother of physical, sexual and emotional abuse. He identified a number of individuals as perpetrators of this abuse including his parents, CH, his foster mother, the foster mother’s daughter’s boyfriend, the social worker, nursery and school staff.

[14]Specifically, on 11 December 2023, H made an allegation to the foster mother in which he described inappropriate sexualised behaviour by the father towards him. The foster mother did not report this to the social worker who visited the foster family on the following day, but nonetheless recorded it in an incident log. H has never repeated the allegation.

[15]On 29 January 2024, H told the foster mother that his mother had inappropriately touched his penis. The following day, the foster mother asked H to repeat the story to her husband and daughter; he did so. H was visited by the social worker on or about 4 February 2024; the social worker (who, the Judge recorded, accepted that she had not followed “all” of the ABE Guideline principles when speaking with H on this visit) asked H, in the presence of the foster mother, to repeat the allegation. Initially H had said that he “did not know what she was talking about”; the social worker led him by asking “what happened in mummy’s bedroom”. H had then repeated the allegation.

[16]On 5 April 2024, H was interviewed jointly by a police officer and social worker in purported compliance with the ‘Achieving Best Evidence’ (‘ABE’) Guidance (January 2022: MoJ/NPCC). We have read the transcripts. The assessment of H’s understanding of truth or lies was cursory and inconclusive; the questioning of H fails in material respects to comply with the guidance. Although H repeated in bald terms the allegation that the mother had touched him, he did not say where, nor (until asked a patently leading question) how she had touched him. H was distracted, and repeatedly left the room.

[17]On 21 April 2024 H made further allegations to his foster mother, directly implicating CH in sexual abuse of him. This was some five months after his placement in care. The circumstances and context in which the allegations were made and recorded by the foster mother were examined at length at the hearing before the Judge, and were the focus of our review on appeal. Accordingly, I set out the facts in a little more detail.

[18]H’s allegations were recorded in a foster carer ‘incident log’; we have seen a copy of the manuscript original. The Judge appropriately reproduced the entire note of the log in his judgment. The recording reveals that at about 5pm that evening, H apparently spontaneously told his foster mother that he wished to talk about “Uncle CH”. The foster mother records asking, “what about?”, and H reported that CH had touched his genitals “at CH’s house in the toilet”, while they were both wearing Hallowe’en costumes. In response to a direct question, H said that it made him feel “scared and sad”. H is reported to have said “he (CH) put his hand up my bum”; the foster mother recorded “I’m unsure whether he meant as in grabbed between his cheeks or penetrated”. At this point, the foster mother recorded that her adult daughter entered the room:

“I asked H to tell [the daughter] the story, and he repeated it”

. The foster mother told H that “nobody should touch him there” and asked H if what he had said was true, to which (the recording in the log continues): “… his eyes glazed and said, ‘I was joking’ so I left the conversation there for half an hour as I could see he was distressed”.

[19]The incident log goes on to reveal that half an hour later, the foster mother and her daughter sat with H to do some drawing; the foster mother recorded:

“we drew our house and CH’s house”, and they went on to discuss what the foster mother’s daughter would wear at Hallowe’en and how it was celebrated. H is recorded to have repeated the earlier allegations; it was said that “CH had grabbed up his bottom hard”

. H is further reported to have alleged that CH had put his penis in H’s mouth, to which H had said “I don’t want wee in my mouth”.

[20]The foster mother recorded how she had believed that when H had earlier said that he was “joking”, he had only done so as “he was worried CH would be in trouble”. The foster mother went on to record that H had allegedly told his maternal grandmother what had happened; the maternal grandmother is reported to have said “Oh CH”. H had also described a loud argument between the mother and CH after these events. The foster mother’s incident log concludes by recording her conversation with H about a holiday and “buying him a football kit”.

[21]Some of the exchanges with H are recorded in speech marks; some are not. Ms Taylor accepted that the incident log was not a verbatim account. The foster mother’s daughter made a statement to the police about these events, which I discuss further below (see §43 and §71).

[22]H’s allegations against CH were explored in a further ABE style interview on 28 April 2024 of which we have the transcript; as before, H was distracted and repeatedly left the room. The questioning, as previously, was leading and unskilled. H repeated some aspects of the account he had given to the foster mother on 21 April 2024, but could not say in which room the alleged abuse had occurred, or (surprisingly given that this was originally said to have happened at Hallowe’en, with H and CH both wearing costumes), when it had occurred, or whether any one else was in the house (also a surprise given that it was originally said to be a party).

[23]On 14 May 2024, H repeated the allegations to the social worker but only (on the Judge’s finding) after the social worker had asked him “a series of leading questions”, which had had the effect (as the Judge later found) of rendering all that H had said on that day unreliable. Notably, H had told the social worker that the mother and father were “downstairs” when CH had abused him; CH lived with his parents in a bungalow.

[24]CH has been interviewed by the police about these matters. No further action has been taken on the allegation.

[25]A schedule of allegations was prepared for the fact-finding hearing. Several of the allegations were accepted by the parents before the hearing began. The fact-finding enquiry focused on allegations made by H that his mother, his father and CH had all separately sexually abused him.

[26]The children have had no contact with their parents for many months; the mother had been precluded because of conditions initially imposed by police bail. The father’s contact was intermittent until April 2024 and in August 2024 an order was made by the Court under section 34(4) CA 1989 granting the local authority permission to restrict contact between the children and both parents. This lack of current contact makes all the more pressing the need for urgent resolution of this application.

The Judgment below

[27]The judgment is lengthy and detailed; the Judge distilled a great deal of oral and written evidence (the documents filed for the hearing had exceeded 3,000 pages). The Judge addressed himself appropriately as to the law, citing a number of key authorities in the area; he concluded his review of the legal principles by reminding himself, correctly in my view, that: “The judgements to which I have referred make it clear that the greatest of care needs to be taken if the risk of obtaining unreliable evidence from a child is to be minimised”.

[28]The Judge summarised the evidence of each of the witnesses who had given oral evidence, one by one, before turning to his assessment of that evidence and then the central allegations, which he took in turn. For the purposes of this appeal, I focus on six aspects of the judgment: i) The Judge’s comments about the early history of CH, and the maternal family; ii) The Judge’s assessment of credibility: iii) The discussion of the two ABE interviews; iv) The Judge’s assessment of the foster mother’s recordings; v) H’s reliability; vi) The core conclusions, which impact on the findings under appeal.

[29](i) Family history. Early in his judgment, the Judge referenced the fact that “several generations of the maternal family have been sexually abused and have gone on to perpetrate abuse themselves”. He later described how “issues of risk are woven throughout the maternal familial structure”. The Judge later explained that “specific findings” had been made by HHJ Lopez about CH as a victim of serious sexual abuse from his older brother, and the fact that his parents (the maternal grandparents of the subject children) had failed to protect him.

[30]Later in his judgment, when introducing his review and analysis of the evidence specific to the allegations against CH (which become finding 3), the Judge said this: “There is, as the Guardian submits, a backdrop of troubling inappropriate sexualised behaviour in CH’s past spread across several years. Whilst that history is not determinative of the allegations in issue, the court is entitled to consider it as part of the wider evidential canvas. I have already referred to the judgment of his Honour Judge Lopez dated 27 October 2017 in which there is reference to concerns regarding inappropriate behaviour demonstrated by CH since 2008, and the sexual abuse of CH perpetrated by his brother. On any view CH has had a difficult and traumatic childhood.”. (Emphasis by underlining added).

[31](ii) Judge’s assessment of credibility. The Judge formed broadly negative assessments of the mother and CH as historians; his assessment of the father was mixed. He referenced “inconsistencies” in the evidence of all three, before adding: “Although the overall thrust of the father’s evidence was that he denies the allegations of sexual harm, there are aspect of the father’s evidence that I find were credible concerning the arguments between him and mother regarding the extent to which mother wished to maintain contact between the children, the maternal grandparents and CH. CH is a very vulnerable witness and although there are aspects of his evidence which I am unable to accept, he spoke clearly about his love for his sister and the contact he continues to have with her family”.

[32]The Judge went on to find that both parents “… have not been entirely honest about the extent to which they have allowed the children to have unsupervised time with the maternal grandparents and CH”.

[33]He recorded CH’s denials of abuse of H, and added: “CH is clearly vulnerable and I have had that vulnerability in mind when considering his evidence. However, I do not accept that he is an honest and credible witness. He has in the past, as he accepts, asked others to lie for him and faced with what is a very serious allegation made against him, I do not accept that he is being truthful in his response”.

[34]Later

the Judge added:

“I do not accept the evidence of the mother and father that CH has not had any unsupervised contact with the children since the sexual risk order was made. I find that father was being entirely honest when he acknowledged in his evidence that he was uncomfortable about the involvement of CH in the children's lives because of what he had been told… I accept [the father’s] evidence that mother struggled with understanding the risks [posed by CH]…” (Emphasis by underlining added).

This point was repeated later in the judgment, when the father was said to have been “entirely candid when he said that he was uncomfortable about the involvement of CH in the children's lives because of what he had been told by [the social worker]”.

[35]I should add that the Judge found the nursery worker who reported that she had seen the maternal grandmother and R together on 27 October 2023 to be “straightforward, candid and honest”; she had been “clear and consistent” (a phrase used to describe her evidence repeatedly in the judgment) in her recall of what she had seen as she drove slowly passed them; this assessment of credibility was central to his conclusions on finding 10.

[36](iii) ABE interviews: I have mentioned above (see §16 and §22) that H was interviewed in purported compliance with the ABE Guidance twice in April 2024. The Judge recorded the investigating police officer’s concession that the “practices surrounding” the ABE interviews were “sub-optimal”. The Judge gave himself a perfectly proper self-direction thus:

“… this is regrettably a case in which the guidance set out in "Achieving Best Evidence in Criminal Proceedings Guidance on interviewing victims and witnesses and guidance on using special measures" ("ABE") was not followed by those charged with caring for the children and investigating the allegations that have been made by H. H was almost four years old when the children were placed in the care of foster carers. His recall of events required care and any delay between an event he was recalling, at that age, may have influenced the accuracy of his recall. Amongst other failures, unfortunately, particularly in respect of the allegations made by H against the parents, there is very little evidence of any clear and full records of questions that he was asked and the answers he gave” (Emphasis by underlining added).

[37]The Judge described in some detail the opening sequence of the ABE interview on 5 April 2024, highlighting material breaches of the ABE guidance before concluding “the weight I attach to what was said by H is extremely limited”.

[38]The Judge referenced the fact that part-way through the second ABE interview on 28 April 2024, H had left the room and that “there are discussions outside the room during which it seems H is promised a visit to the toy shop”. The Judge added: “… the way in which [the police officer] conducted the investigation undermined the reliability of what H is recorded as having said during the ABE interview such that I attach only very little weight to it”.

[39](iv) Foster carer recordings: Given the deficiencies of the professional investigation, the Local Authority was, in the end, heavily reliant on the evidence of the foster mother in its pursuit of findings.

[40]Having acknowledged the inexperience of the foster carers, the Judge recorded the foster mother’s concession that she felt “under prepared” in relation to record keeping, and that she and her husband had been “learning on the job”. The Judge remarked that this lack of experience and ability “inevitably impacts on the weight I can properly attach to her evidence”. With regard to H’s allegation of sexual abuse by the father (11 December 2023 – see §14 above), the Judge said that he could “… attach only limited weight to [the foster mother’s] evidence in this regard”, given her “limited training about how to address allegations of sexual abuse or harm” and her failure to adopt “the proper approach to record keeping”. He added: “The form of the incident log and absence of a full record makes it impossible to assess the extent to which, if any at all, the ABE guidance was followed. … Although I have every sympathy because of the inexperience of the foster carers, the failure to follow even anything close to the ABE guidance, is in my judgment forensically significant”.

[41]In relation to H’s allegation of inappropriate touching by the mother (29 January 2024 – see §15 above), the Judge remarked that “I find [the foster mother] did not adopt the proper approach to record keeping. That is unfortunate because … there are several differences in the account of the foster carer”. He added: “… the difficulty with these varying accounts is that I have no clear account of the question that H was asked and precisely what H said. Furthermore, what is clear is that in the statement [the foster mother] made to the police on 15 March 2024 some six weeks after H first made the allegation, there is an account of further discussion between H and [the foster mother] that does not feature in her initial notes. [The foster mother] acknowledged questioning H in her oral evidence… Furthermore, it appears that the following day [the foster mother] asked H to repeat the story to her husband and daughter. Beyond [the foster mother] wanting H to repeat what he had told her the previous evening, [the foster mother] was unable to explain why she asked H to repeat “the story” to her husband and daughter. If the aim of that exercise was to simply get H to repeat what he had said to [the foster mother] earlier, it was misguided.”.

[42]The Judge rightly recorded in his judgment that asking a child to repeat an allegation was “in breach of the [ABE] guidance”.

[43]The foster mother’s incident log of 21 April 2024 is, as I have mentioned, reproduced in full into the judgment and was pivotal to the Judge’s finding against CH. The Judge went on to reproduce into his judgment, in the same section, an extract from the police statement made by the foster mother’s daughter. Although the Judge rightly recorded that the foster mother was “misguided” to ask H to repeat allegations (see §42 above), the Judge did not, as it happens, identify a number of discrepancies between the two adults’ accounts which are evident from the extracts which the Judge had explicitly incorporated into his judgment (see §71 below).

[44]As to the foster mother’s recordings for 21 April 2024,

the Judge made these crucial findings:

“Although I accept that [the foster mother] was ill-equipped, at least initially because of the limited training she had received, she was as she said in evidence and I accept, ‘learning on the job’. The notes for the allegation made on 21 April 2024 themselves demonstrate a significant improvement in her recording of events”

The Judge went on to explain what he meant by this:

“The incident log does not follow the format of an interview recordwith a sequential note of the question asked and the answer provided. That would be a counsel of perfection and it is unrealistic in my judgment to expect that a foster carer would record such a conversation in the same way as specifically trained professionals, particularly in the context of what was I find, a ‘chat’ that was instigated by H as [the foster mother] said, without any forewarning”

. And then:

“When reading the incident log as a whole I find, [the foster carer] sets out, verbatim, the questions she asked and in quotes, recorded the reply by H. This is not a summary…” [Emphasis in each case by underlining added].

[45]The Judge concluded his review of the foster mother’s evidence in relation to the 21 April 2024 in this way:

“I have carefully considered whether any (sic) breaches of good practice or failure to follow the relevant guidance amounted to a serious breach of the guidance such that reliability of the log and the allegation recorded is undermined. I find that the breaches do not undermine the specific allegation recorded by [the foster carer] and I attach due weight to what was said by H to [the foster carer].”

[46](v) H’s reliability: The Judge rightly recorded in several places in his judgment that H had a history of making false statements and allegations. He specifically referenced that: i) The foster mother had accepted in her oral evidence that H “had a tendency to say things that are not true”; ii) In December 2023, H had falsely accused his father of hurting his arm at a contact; the social worker accepted that H “had lied” about this; iii) The foster mother’s weekly care logs for 8 January 2024 and 15 January 2024 had revealed that H had “been making lots of allegations about a number of people, and “anyone he meets””; later it was recorded in the judgment that H was at that time “making allegations [unspecified] daily”; iv) In the week of 15th January 2024, H had a scratch on his face; he accused a number of people, including the foster mother, of causing this; it was apparently accepted without reservation that the foster mother had not done so; v) The Judge recorded that “the previously allocated Guardian had expressed the view that [H] was in the habit of making unfounded allegations”; vi) In June 2024, H alleged that the foster mother had digitally penetrated R’s anus; again, it was accepted without reservation that the foster mother had not done so; vii) “It is uncontroversial that H has made many allegations against a number of different people, not limited to the parents and CH”;

[47]When considering the allegations which led to finding 3,

the Judge said this:

“In considering the allegations made against CH I have had in mind throughout that H has made allegations against lots of people including his parents. I have not found the allegations made by H against his parents to have been proved by the local authority for the reasons I have set out and I do not repeat. [The foster mother] confirmed in her oral evidence that H has been known to make allegations against anyone he meets over silly little things, such as an adult having pushed him, that she knew were not true. Allegations would be made by H regularly. I have had in mind throughout the possibility that the allegations made against CH might also have been untrue” (Emphasis by underlining added).

[48]The Judge was persuaded as to the truth of the allegation made by H against CH (finding 3) at least in part because of “a level of detail that was given by H to [the foster mother] that is worthy of note”. In this regard, he referred to the location of the alleged abuse (the toilet), the reference to H not wanting “wee in my mouth”, and the reactions of the mother and grandmother when H allegedly reported to them what had happened.

[49](vi) Photographs: The Judge placed reliance on photographic evidence of the children in Hallowe’en costumes as probative of the allegation against CH. It had been the parents’ evidence that the children had gone ‘trick or treating’ on Hallowe’en in 2023; CH had not been living at his parents’ home in October 2022, so that could not have been relevant to H’s allegation of abuse at the maternal grandparents’ home at a Hallowe’en party in that year. The Judge observed:

“I find the children did dress up in Hallowe’en costumes on Hallowe’en 2023. The evidence of mother was clear that the maternal grandparents threw a Hallowe’en party in 2022 that she attended with father and the children. When asked whether the family met for Hallowe’en in 2023, mother sought to evade the question and vaguely responded that she was with father, “[A], [H], [L] and the kids, we didn’t even go to my mum and dads”

. Father said he could not recall if the children went to their grandparents. I find they did go to their grandparents and the parents have tried to portray that they did not, because of the possibility that CH may have had the opportunity to harm H in the way that he claims”.

[50](vii) Conclusions: The Judge took each of the allegations of fact from the schedule of proposed findings separately, reaching conclusions on each individually. I discuss only those which are relevant to our decision on this appeal.

[51]In summarising his conclusions on finding 3, the Judge described how he had had regard to “the wide canvas of evidence”. He concluded that “at Hallowe’en 2023, the children were taken to a Hallowe’en party at the house of the maternal grandparents and that CH sexually abused H in the way alleged by H on 21 April 2024.” The Judge then listed the five discrete and specific allegations of sexually abusive conduct; he converted H’s allegation of “he put his hand up my bum” and “grabbed up his bottom hard” (see §19 above) into a finding that CH had “penetrat[ed] his anus with his fingers/hand and/or plac[ed] his hand between his buttocks”.

[52]In his judgment, the Judge described evidence which strongly and unmistakeably indicated a range of sexually disinhibited behaviour on the part of H; this evidence informed his conclusions which led to finding 4. Somewhat surprisingly, the ‘particulars’ listed in finding 4 (see §56(ii) below) do not include an unchallenged incident described by the Judge in a report from H’s school thus: “H pulled his trousers and pants down and was showing people his private parts. H was then playing with a truck when he started ramming it repeatedly into his groin and said, "it's sucking my cock"”.

[53]Additionally the Judge recorded evidence of H using explicit and obscene language at school and in the foster home; the evidence was not (it appears) materially challenged. Indeed the Judge recorded the father’s acceptance that at least some of the obscene expressions were “probably picked up from the language they [the parents] used, and from others in the area where they live”. Again, surprisingly this did not become one of the particulars supporting finding 4.

[54]In relation to finding 10, the Judge had made favourable findings about the reliability of the nursery worker’s evidence (see §35 above), which was in some respects corroborated by her proprietor and safeguarding lead at the nursery. The Judge properly set out the parents’ denial that R had been with the maternal grandmother, and their competing case about the events that day; he indicated that where there was a conflict of evidence, he preferred the evidence of the nursery worker. The backdrop to this finding is the Judge’s clear view (evidenced by a lengthy section of the judgment) which revealed that the mother had not been honest about the extent of the contact between the children and the maternal grandparents and/or CH over a number of months, and that the mother had been struggling to accept the risks posed by them. In this regard, the Judge was not entirely unsympathetic to the mother’s position:

“Given her vulnerability, it is understandable that she found it difficult to reconcile the fact that on the one had, the local authority claim her parents pose such a significant risk that they should not have any contact with the children, and yet she was allowed to remain living with them following the earlier proceedings. … [the] mother accepted that it is hard for her to hear about the risks posed by her parents because it reflects on her as a person”

Judicial findings

[55]The Judge made a number of findings of fact which are not challenged in this appeal. In this respect the Judge expressly did not find proved (as the Local Authority had alleged) that either the father or the mother had behaved in a sexually inappropriate manner towards H (findings 1 and 2). The Judge recorded that the parents had accepted that the children were at high risk of intra-familial sexual abuse given the findings which had been made in respect of maternal family members in proceedings which had concluded in 2017 (finding 6). The Judge further found (uncontentiously for present purposes) that; i) On or before 7 July 2023 H suffered physical harm by way of inflicted injuries to his thigh; these were non-accidental and were inflicted by his father (findings 11 to 13 inclusive); ii) H had set fire to a toaster. This incident was caused by inadequate parental supervision (finding 14); iii) The parents have a volatile relationship which has featured verbal and physical abuse, exacerbated by alcohol use (finding 15); iv) The children have been present during domestic abuse incidents which would have been frightening and would have caused emotional distress (finding 16); v) The mother and father have failed to address their mental ill health and/or psychological difficulties which has negatively impacted upon their ability to parent and safeguard their children (finding 17); vi) The father suffers from anxiety and depression which affects his ability to provide good enough parenting (finding 18).

[56]The judicial findings under challenge in this appeal are: i) At Hallowe’en 2023, the children were taken to a Hallowe’en party at the house of the maternal grandparents and CH sexually abused H in a number of ways (“a broad spectrum of sexually inappropriate behaviour” as Mr Maynard described it) as alleged by H on 21 April 2024 (finding 3); ii) H has displayed the following inappropriate/sexualised behaviour: a) closing the toilet seat on his penis; b) putting toys and his own fingers inside his own anus; c) smearing (faeces); d) thrusting his pelvis against the back of a professional; e) touching adults on inappropriate areas of their body (finding 4); iii) The behaviours in finding 4 above are as a result of the sexual abuse that H has suffered and/or inappropriate boundaries within the family home (finding 5); iv) The mother and father have continued to associate with the maternal grandparents and maternal uncle (CH) who pose a risk of sexual harm and have continued to expose the children to this risk, demonstrating a lack of insight (finding 7); v) The mother and father have allowed the maternal uncle (CH) to have unsupervised contact with H in circumstances where they knew, or should have known, that he posed a risk of harm to children (finding 8); vi) The mother was aware that H had been abused by CH and failed to disclose this to professionals or take any measures to protect H or R (finding 9); vii) The mother and father have allowed the maternal grandmother to have unsupervised contact with R in circumstances where they were knew, or should have known, that she poses a risk of harm to children (finding 10).

The Grounds of Appeal

[57]CH advances three grounds of appeal: i) There was an insufficient analysis of the chronological development of the allegations and a lack of a holistic evidential evaluation; ii) There was an insufficient analysis of breaches of the ABE guidance in relation to the account taken from H on 21 April 2024; iii) There was an insufficient analysis of the allegations of sexual abuse and consequential perpetration.

[58]The mother has proposed two further grounds: i) The judge was wrong to find that H had been together with CH at a Hallowe’en party in 2023. ii) The judge was wrong to find that there was contact between R and the maternal grandmother on 27 October 2023.

The arguments on appeal

[59]While acknowledging the challenges of appealing against findings of fact, Ms Cheetham KC and Mr Feehan KC make common cause in this appeal. Ms Cheetham identified as the underlying characteristic of all three grounds of appeal a lack of rigorous judicial analysis of the evidence which led the Judge into error in finding that CH had abused H at a Hallowe’en party in 2023. Alternatively she argued that any judicial analysis was essentially flawed, the Judge having failed to take sufficient account of the defective professional assessments (social work and police) and the contamination of all evidence which followed the mismanaged questioning of H.

[60]Mr Feehan specifically invites the Court to accept that if finding 3 is set aside, then a number of the other findings of fact (namely 4, 5, 7, 8, 9) “must be unsafe” and “must” also therefore be set aside. He argues that the evidence adduced by the mother and father as to the events of 27 October 2023 (finding 10) was so compelling that the Judge erred in rejecting it. Ms Isaacs KC and Mr Maynard added their own support to those submissions.

[61]In responding to the appeal Ms Taylor reminded the Court of the particular advantage of the trial judge in seeing and hearing these witnesses, and of the dangers of ‘island hopping’ in a review of a case involving extensive written and oral evidence leading to distinct factual findings; she argued that there was no compelling reason not to assume that the Judge had taken the whole of the evidence into consideration in reaching his conclusions. The Judge had been in a unique position over a number of court days, to assess the evidence, and he had done so with care. While the Judge may have expressed himself better, that is not a reason for disturbing his conclusions.

Discussion and Conclusion

[62]This was, as Baker LJ observed when granting permission to appeal, in many ways a complex case. The Judge was presented with serious allegations of child abuse, in respect of which the evidence was in many respects unreliable, and the methods by which it was obtained fundamentally flawed. The Judge himself acknowledged that not one of the professionals investigating the allegations had complied with standard good practice in their work; this had the effect of excluding from judicial consideration potentially important material. Opportunities had been lost in the investigation to establish the truth.

[63]In the final analysis, the pursuit of findings turned in large measure upon the evidence of an inexperienced foster mother, who had been, in the Judge’s finding “misguided” in her own personal investigation of what H alleged and was unskilled in much of her record keeping. Given his detailed assessment of the evidence, there was scope for the Judge to have concluded that she was over-zealous in this regard, suggestive perhaps of her inexperience in the role. It is well recognised that any initial questioning of a child who is alleging abuse should only ever be aimed at eliciting a brief account of what is alleged to have taken place; a more detailed account should not be pursued, but should be left to the formal (ABE) interview (see ABE Guidance, para.2.5). On the Judge’s account of the events of 21 April 2024, the foster mother asked a significantly greater number of questions of H than was necessary in the circumstances in order for her to know whether to take immediate action (ABE Guidance, para.2.7(d)).

[64]To add to the complexity, the child complainant, H, was known to lie repeatedly; he had made serious allegations in the past against professionals and others which were patently not true. Moreover, the alleged perpetrators of abuse (the mother, father and CH) were all extremely vulnerable; each had a personal history of childhood sexual abuse, and each suffered from a degree of impaired functioning.

[65]In a case in which there are multiple allegations, a Judge must always guard against the temptation to approach the evidence on the basis that something must have happened; the temptation in this case must have been all the greater given the reports of H’s sexually disinhibited behaviour and language, particularly once in foster care. In this case, the Judge had rightly been invited by counsel to consider the comments of Lord Hewart CJ in Bailey

[1924] 2 KB 300

at 305, regarding the judicial approach required in cases in which the court is faced with determining a very large number of allegations:

“The risk, the danger, the logical fallacy is indeed quite manifest to those who are in the habit of thinking about such matters. It is so easy to derive from a series of unsatisfactory accusations, if there are enough of them, an accusation which at least appears satisfactory. It is so easy to collect from a mass of ingredients, not one of which is sufficient, a totality which will appear to contain what is missing. That of course is only another way of saying that when a person is dealing with a considerable mass of facts, in particular if those facts are of such a nature as to invite reprobation, nothing is easier than confusion of mind; and, therefore, if such charges are to be brought in a mass, it becomes essential that the method upon which guilt is to be ascertained should be stated with punctilious exactness” (Emphasis by underlining added).

The Judge was further taken to Macdonald J’s comments in Re P

[2019] EWFC 27

at [272] where he said (having quoted the extract from Bailey above):

“The totalising approach must be avoided if the court is to steer safely clear of capitulating to suspicion and the beguiling adage that there is ‘no smoke without fire’” (Emphasis by underlining added).

The judicial advice from Bailey and Re P set out above was particularly apt to this case.

[66]Notwithstanding the conscientious efforts of this judge in preparing his detailed judgment, this is a case in which the crucial analysis on the key facts would I suggest have been easier for him to undertake, and would altogether have been more coherent in its organisation and presentation, if he had adopted the approach advocated by Peter Jackson LJ in Re S

[2023] EWCA Civ 346

at [33]; that is to say he could or should have identified and focussed on the “chapters of time” covered by the evidence, rather than structuring the judgment by reference to the sequence of witnesses and the individual allegations in isolation from each other. On the facts of this case, these ‘chapters’ might conveniently have been arranged under headings including: July 2023 (H’s report of being smacked); the first account of sexual abuse (December 2023: father); the second account of sexual abuse (January 2024: mother); other accounts of physical and sexual abuse (January – March 2024); the first ABE interview (5 April 2024); the allegations against CH on 21 April 2024; the second ABE interview. The Judge could then have concentrated on the first point in time at which H had ever given an account of alleged sexual abuse, the precise circumstances in which the account or accounts arose, whether and if so how they fitted into a context of lies, and how those were treated by those to whom they were made (Re P (Sexual Abuse – Finding of Fact hearing)

[2019] EWFC 27

). There was, thus, much force in Ground 1 of this appeal.

[67]Turning to the specific findings under challenge, there are, in my judgment, obvious deficits in the Judge’s analysis of the evidence which led to finding 3, which drive me to the conclusion that it must be set aside. I identify altogether six flaws, or potential flaws, in the Judge’s approach.

[68]First, as I referenced in §30 above, the Judge opened his review of the evidence relevant to, and his discussion of, finding 3 by referencing the “backdrop of troubling inappropriate sexualised behaviour in CH’s past”. To recap, he stated that while CH’s background (involving sexual abuse) was “not determinative” of the allegation made by H, the court was “entitled to consider it”. Plainly, there were no circumstances in which it could be said that CH’s background was ‘determinative’ of the allegation that CH had abused H; given his particular mode of expression in this context, it was incumbent on the Judge to explain how he had indeed ‘considered’ CH’s background in his overall review. For instance, the Judge should have made clear in his judgment how he had ‘considered’ this background evidence, what if any probative value it had, and whether (for instance) the Judge regarded it as demonstrating CH’s propensity to abuse. He did not do so. These judicial comments, expressed by way of introduction to his review of the evidence of alleged abuse of H by CH caused Ms Cheetham to argue that the Judge may well have inadvertently approached his task by applying a reversed burden of proof. I, for my part, would not go that far.

[69]Secondly, having found that the foster mother’s record-keeping had in material ways been defective when considering H’s December 2023 and January 2024 allegations against his parents, the Judge’s assessment that she had displayed “a significant improvement” in her record-keeping by 21 April required proper explanation. I regret that I do not find this explanation in the judgment. There was only the vaguest of references to the foster carers having received any, or any additional, training in record-keeping between January and April 2024. The Judge went on to offer confusing views as to why he felt able to rely on the record made on 21 April 2024 (in contrast to the earlier records); I have in mind that having recorded that the incident log did not in fact “follow the format of an interview record with a sequential note of the question asked and the answer provided”, he then contradicted this by stating that the foster mother had set out “verbatim, the questions she asked and in quotes, recorded the reply by H”. Ms Taylor was right to concede that the 21 April 2024 is not, contrary to the Judge’s finding, a ‘verbatim’ account. It is difficult to see how the Judge regarded himself in any better position to assess what H had been asked and precisely what H had said on 21 April 2024, than in the earlier recorded incidents (see §40 and §41 above).

[70]Having earlier rightly recorded in his judgment that there are inherent forensic dangers in asking a child to repeat an allegation (see §42 above), the Judge appeared to overlook the fact that the foster mother had done precisely this on 21 April 2024, when she asked H to repeat the allegations for her daughter; the Judge recorded that the foster mother had “wondered whether he would tell the same story again”. It is clear from the incident log that the foster mother had gone on then deliberately to introduce the subject of Hallowe’en into a second conversation with H in the presence of her daughter, and in that context had drawn CH’s house. The irresistible inference is that this had been done by the foster mother in an unauthorised and misguided effort to investigate the allegations herself, and should have sounded a deafening alarm for the Judge about the reliability of all that followed. As the Judge had rightly earlier observed in his judgment, given H’s age, his “recall of events required care”; this level of care was, in my judgment, self-evidently lacking from much of the interaction between the foster mother and H in their discussions on 21 April 2024.

[71]The Judge further failed to address discrepancies in the accounts between the foster mother and her daughter (see §43 above), yet he appeared to rely upon them both. I refer in particular to:(a) the account given by the foster mother’s daughter of the evening of 21 April 2024 (included in the judgment) did not make any reference to a gap of half an hour between two separate conversations, as recounted by the foster mother;

(b) the foster mother’s daughter recorded that H had said that his penis was in “his (i.e. CH’s) mouth” (this is recorded within speech marks) whereas on the foster mother’s account H had alleged that CH’s penis was in H’s mouth;

(c) the foster mother’s daughter recorded that she had said to H “something along the lines of ‘… no adult should be doing that’”, a comment of some significance, which was not recorded in any form at all by the foster mother.

[72]Thirdly, although the Judge was right to reference in his judgment the many occasions on which H had made false accusations during his period in foster care, and although the Judge was also right to remind himself of the dangers of relying on the uncorroborated word of a child who has a history of lying, the Judge then offered, to my mind, an unconvincing rationale for why he had accepted H’s word for what he had said on 21 April 2024. In this regard, the Judge offers two reasons: i) That H had “been known to make allegations against anyone he meets over silly little things”. Yet, it is clear that numerous allegations made by H in foster care, which are known to be false, were serious (including, for instance, allegations of sexual and physical abuse by the foster mother against himself and R); ii) The Judge relied on “a level of detail” in the account of the abuse by CH. I am not persuaded that this reasoning withstands scrutiny. The Judge relied on H’s description of the incident as occurring in a toilet; this is not a particularly striking ‘detail’, and not a particularly sound one when set aside H’s later comment that when the abuse occurred in the toilet, the family were otherwise said to be ‘downstairs’, which, given that the maternal grandparents’ home is a bungalow, is inherently implausible. The child’s comment that he would not want ‘wee’ in his mouth is not a ‘detail’ of any specific incident. The Judge further cited in support of his view what H said about the response from his grandmother when he had disclosed abuse (“Oh [CH]”); yet the grandmother’s response had (on the reports given) been obtained only in response to two clear adult prompts (“did you tell anyone? … what did nanny say?”).

[73]A helpful chronology of allegations was produced on behalf of the mother for this appeal; this starkly revealed the considerable number of false allegations made by H during his months in foster care. Had the Judge marshalled the evidence in this chronological way, rather than in compartments (see again §66 above), I suspect that he would have been able to see more clearly how the 21 April 2024 allegations sat amidst multiple and diverse false allegations (see again on this point Re: S (A child: Findings of Fact) above).

[74]Fourthly, there was no support for finding 3 from the photographs taken on 31 October 2023. We were told that no comparison had been made at the hearing before the Judge between the photograph of H in his Hallowe’en costume and H’s description of it (in his account of abuse by CH). No photographs connected the children in their Hallowe’en costumes to the maternal grandparents’ home. No photographs connected the children in their Hallowe’en costumes with CH. It is difficult to see why the Judge regarded the mother’s answer as ‘evasive’ and ‘vague’ when she confirmed that on Hallowe’en 2023 she had been with the father, “[A], [H], [L] and the kids, we didn’t even go to my mum and dads”.

[75]Fifthly, it is clear from the incident log that almost as soon as H had made the allegation against CH he withdrew it, telling the foster mother that he was “joking”; the Judge did not, in his final analysis, comment upon this at all. This retraction (partial or complete) required some examination.

[76]Finally, the Judge did not attempt to analyse the evidence relevant to the five different ways in which H said he had been abused by CH at Hallowe’en 2023. Nor was there any explanation in the judgment for how the Judge had converted H’s allegation of “he put his hand up my bum” and “grabbed up his bottom hard” (see §19 above) into a finding that CH had “penetrat[ed] his anus with his fingers/hand and/or plac[ed] his hand between his buttocks” (see §51 above). There was no medical evidence. Such a serious finding warranted explanation.

[77]For these reasons in combination, I am satisfied that finding 3 should be set aside.

[78]I see nothing inherently wrong with finding 4. The parents accept that H displayed the behaviour described, and accept that it was ‘inappropriate’; they dispute the term ‘sexualised’. For my part, I am satisfied that at least some of the behaviours listed (particularly at (iv) and (v)) were appropriately described by the Judge as ‘sexualised’. As it happens, and as I have already mentioned (see §52), finding 4 does not in fact contain a complete list of quite extreme sexualised behaviours as revealed by the evidence.

[79]If finding 3 is, as I propose, to be set aside, the words “as a result of the sexual abuse that H has suffered” in finding 5 would obviously need to be removed. That leaves the conclusion that the inappropriate and/or sexualised behaviours were attributable to ‘inappropriate boundaries in the home’; it is difficult to ascertain from the judgment how the Judge could reach that conclusion. The father made concessions about bad language used in the home but that would not explain H’s behaviours. Suspicion of loose or inappropriate sexual boundaries in the home, based on the maternal family history and/or on the basis of H’s apparent knowledge of sexual matters, would not be enough to support a factual finding. Therefore, albeit with some hesitation, I am inclined to accept the submission of Mr Feehan that the finding of sexualised behaviour being attributed to ‘inappropriate boundaries within the family home’ is too evidentially insecure to stand. This leaves the facts in finding 4 without any attribution; while in ‘threshold’ (section 31(2) CA 1989) terms this is not helpful, the facts in finding 4 are likely nonetheless properly to inform the welfare stage.

[80]Finding 7 should in my view stand. The Judge reviewed with care and at some length the evidence about the relationship between the mother and her family, and the mother’s ambivalence about the risks posed by them. The Judge was entitled to reach the conclusion, based on mobile phone records, nursery records, sightings and admissions, that the mother and father had not been frank with the court about the level of contact between the children and the maternal grandparents over the years. Although the Judge had formed a more favourable assessment of the father, the Judge had also found the father someone who found it difficult to stand up to the mother and they had argued about the level of maternal family contact. The Judge’s conclusion on finding 10 further informs finding 7; for the reasons set out below (§83) I find no proper basis for disturbing finding 10.

[81]It is fair to point out that the maternal grandparents had not been found to be perpetrators of abuse by HHJ Lopez, and after the 2017 proceedings, the mother had of course been permitted to continue living with them at the conclusion of those proceedings. It seems to me from the uncontroverted evidence that the Local Authority had in some respects acquiesced in contact taking place between the parents and the wider maternal family over the years; as recently as summer 2023 the Local Authority had indeed permitted the maternal grandmother to reside with the mother and children for a short period, while the father was excluded from the home (following H’s allegation that the father had smacked him). There was, therefore, some substance, in my view, to the mother’s evidence (recorded in the judgment) that she felt she had received ‘mixed messages’ about the risks posed by the maternal family. So although finding 7 is essentially sound, it needs to be seen in this context.

[82]Given that finding 3 should be set aside, I am of the view that findings 8 and 9 should also fall away.

[83]Finding 10 turned upon a straightforward dispute of fact. The Appellants presented cogent arguments to the Judge about the quality of the recognition evidence and the Judge’s lack of consideration of the gaps in the evidence (i.e., that the paternal grandmother had not been approached for a statement). They repeated these points before us. Ms Taylor argues that the Judge was entitled to prefer the evidence of the nursery worker; she knew R and knew the maternal grandmother. The nursery worker was “95% sure” that she had seen the maternal grandmother with R. The Judge preferred that evidence to the evidence of the parents whose evidence on other aspects he had had cause to doubt, and who had denied this. In my judgment, it was for the Judge to form his own evaluation of the reliability of the witness evidence on this allegation; he had seen and heard the witnesses. It is of course irrelevant whether I would necessarily have reached the same conclusion, but I find it impossible to say that that the Judge was plainly wrong in his assessment (Volpi v Volpi

[2022] EWCA Civ 464

at [2] and [65]), and would not therefore interfere with this finding.

Outcome of the appeal

[84]For the reasons which I set out above, I would allow these appeals.

[85]In relation to the specific findings, my conclusions lead to the following outcome: i) Finding 3 is set aside; ii) Finding 4 stands; iii) Finding 5 is set aside; iv) Finding 7 stands, albeit qualified as I have outlined above (§81); v) Finding 8 is set aside; vi) Finding 9 is set aside; vii) Finding 10 stands.

[86]Subject to my Lords’ views, I would remit the Part IV CA 1989 application to the Designated Family Judge for Wolverhampton for her to re-allocate as she considers appropriate and list urgently for case management directions. The court will need to consider, first and foremost, whether it is in fact necessary and proportionate to re-try the factual issues which have been the subject of the findings now set aside, particularly given that the threshold criteria under section 31(2) CA 1989 is amply met on other grounds.

[87]I agree.

[88]I also agree.