JFM v Neath Port Talbot Borough Council & Ors

As these are ongoing proceedings, I would be minded to direct that reporting restrictions should apply, and this judgment has, accordingly, been written anonymously. Apart from the location of the court, the name of the judge, and those of the local authority together with counsel and solicitors appearing before us, I would direct that nothing must be published which would identify or assist in the identification of the children concerned.

At the conclusion of the argument at the hearing on 20 December 2007, we announced our decision, but reserved our reasons. Our decision was that, whilst permission to appeal would be granted, the appeal itself would be dismissed. This judgment sets out my reasons for reaching those conclusions.

The appeal concerns a challenge made by the appellant to findings of fact made by Her Honour Judge Parry in the course of care proceedings heard in the Swansea County Court between 16-21 July; and 26-28 September 2007, when the judge reserved judgment. Her judgment is dated 25 October and was handed down on 9 November 2007. On that date, the actual order made by the judge records that she found the threshold criteria under section 31 of the Children Act 1989 satisfied in relation to all three of the children concerned in the case. On the same day, the judge refused permission to appeal, commenting: -

When the renewed application for permission to appeal came to me on paper on 10 December 2007, I adjourned it to an oral hearing on notice to the other parties with the appeal to follow if permission was granted. I directed expedition, since the final “welfare” hearing before the judge is scheduled to take place on 25 January 2008.

In the event, the only parties represented before us were the appellant, the local authority and the guardian. The latter, very sensibly, joined forces with the local authority and instructed the same leading counsel. The appeal was argued with great skill by Mr. Clive Newton QC for the appellant, and I am grateful both to him and to Mr. Stephen Cobb QC, for the local authority / guardian, for their considerable help in what is by no means an easy case. I am particularly grateful to Mr. Cobb, who was instructed at a very late stage, for his detailed skeleton argument and chronology.

The judge made a number of adverse findings against the appellant, which he seeks to challenge in this court. To understand how they have come about, it is, of course, necessary to examine the background. Before doing so, however, it also needs to be stated that the case has been bedevilled by a number of extraneous factors, not the least of them being the manner in which it has been mismanaged by the local authority. The judge devotes several introductory paragraphs and the three final pages of her judgment to this subject. Amongst other matters, these parts of the judgment explain why the hearing had to be adjourned between July and September 2007, and why the case has taken so long to reach even a threshold hearing.

These passages in the judgment do not make comfortable reading, and I welcome the judge’s decision to require the local authority to explain and address the deficiencies which she identifies. At the same time, however, this is not an aspect of the case which this court has been called upon to investigate. It thus plays no part in my decision, although I anticipate that the subject matter of the local authority’s report to the judge is likely to exacerbate the sense of unfairness felt by the appellant, who strongly denies the allegations made against him, and regards the removal of his daughter TM from the care of himself and his wife as wholly unwarranted. We were, however, assured by Mr. Cobb that the local authority had commissioned an internal investigation into these deficiencies, and that it would, as directed by the judge, file and serve a report dealing with them by 10 January 2008.

The principal findings against which Mr. Newton’s argument was directed are that the appellant has been guilty of sexual misbehaviour towards his granddaughter, whom I will identify by the initials JM.

The family structure is not altogether straightforward. Three children are the subject of the local authority’s applications (originally issued separately but now consolidated) for care orders. They are TM, JM and CM. TM and JM are both girls now aged respectively 11 and 8. CM is a boy aged 7. The appellant and his wife AM are the parents of TM, and the maternal grandparents of JM and CM.

The appellant is 57 and AM is 54. They were married in 1976. Altogether, the appellant and his wife have eight children, all of whom, apart from TM, who is the youngest, are over the age of 18.

The mother of JM and CM is MM, who is the second child born to the appellant and AM. MM has an older sister SM, who figures briefly in the case. MM herself suffers from severe mental ill health and, as a consequence, was represented in the proceedings by the Official Solicitor. It is recognised on her behalf that she is not in a position to care for either JM or CM.

Apart from SM, the only other child of the appellant and AM who featured in the proceedings was their eldest son, J, who initially asked to be assessed as a carer for TM, and whom it was thought at one stage, might give evidence for the appellant. In the event, however, J’s application to care for TM was not pursued, and he did not give evidence.

JM’s father is a man called PH, and CM’s father is a man called LP. LP has played no part in CM’s life, and took no part in the proceedings. PH, on the hand, together with his parents, have applied for residence orders in relation to both JM and CM. These are matters with which the judge will have to deal at the final hearing of the applications.

There is a lengthy history of social services involvement with the family, dating back to 1995. We are not, however, concerned with this, save to the extent that it affects the appellant’s attitude to the local authority. It is, I think, sufficient for the purposes of this judgment to summarise the history in the following way.

JM and CM were initially accommodated by the local authority in June 2006, when their mother MM was admitted to hospital as a voluntary patient under the Mental Health Act. In July 2006, the appellant made an application for residence orders in relation to JM and CM. This led to a report under section 37 of the Children Act 1989, and in November 2006 to care proceedings relating to JM and CM. The local authority’s initial care plan for the two children had been that they should be reunited with their mother. However, in October 2006, MM sought a further readmission to hospital, and JM and CM have remained in foster care. They have had two placements. Their first placement lasted from June to July 2006: the second, in which they remain, has lasted from July 2006.

In November 2006, both CM and JM were recorded by their foster mother Mrs. E as making allegations of sexual misbehaviour by the appellant. This led to JM being interviewed on video by the police under the Achieving Best Evidence (hereinafter ABE) guidance on 28 November 2006.

On the previous day, 27 November 2006, TM was removed from the care of the appellant and his wife. This was initially by means of police protection powers, and was based on the perceived risk to TM arising from what JM had alleged. On 29 November 2006, the local authority started care proceedings relating to JM and CM, and on the following day an emergency protection order was made in relation to those children by local justices in the family proceedings court. On 1 December 2006, the local authority instituted care proceedings in relation to TM: on 4 December 2007 the proceedings were transferred to the county court and on 7 December 2007, TM’s proceedings were consolidated with those relating to JM and CM by Her Honour Judge Parry, and a guardian appointed for all three children.

There is no doubt, from the statement in our papers made by the appellant, that he was deeply upset by TM’s removal from the family home on 27 November 2006. It also appears that his initial concern in the proceedings was to regain the care of TM or, at the very least, contact with her. However, one of several obstacles in his way is the local authority’s case that he has sexually abused JM. Thus although the focus of the appeal has been the allegations of sexual abuse made by JM against the appellant, the underlying reality of the case from the appellant’s perspective – as I understood it - is his wish to restore his relationship with TM.

In a document dated 19 July 2007, the local authority set out the findings of fact which it sought from the court, and by means of which it argued that the threshold criteria under section 31 of the Children Act 1989 would be satisfied. In relation to sexual abuse, the following findings were sought against the appellant:-

There were consequential findings sought against AM in relation to the allegation of failure to protect. There were also allegations against the appellant of physical and emotional harm, and a general allegation that, at the date of the institution of proceedings, the history of the parenting of TM’s siblings coupled with the numerous police call outs due to domestic violence between the appellant and AM demonstrated a parental inability to provide consistent care and appropriate boundaries.

In paragraphs 10 to 14 of her judgment, the judge sets out the findings which she felt able to make. In relation to JM, these were:

In relation to the allegations of sexual abuse involving CM, the judge was not satisfied that there was one incident when CM sucked the appellant’s penis.

The remaining allegations relate to physical harm inflicted by the appellant on CM and TM. The only allegation which has any relevance to the sexual abuse of JM is the judge’s finding that TM “had a recollection of a game with a blanket involving (the appellant), TM and JM and she, (that is TM) could describe the blanket.” As I have already stated, the judge found the threshold criteria satisfied in relation to all three children. This is a point to which I will return, briefly, at the end of this judgment.

The principal evidence against the appellant derived from three sources. The first was a series of recordings made by Mrs E, JM’s and CM’s second foster carer, relating to sexualised behaviour on the part of JM (and in one instance CM’s complaint about such behaviour on the part of JM). The second was a series of recordings made by Mrs. E of what JM and CM had said to her. The third derives from what JM is recorded as saying when interviewed on two occasions by a police officer under the provisions of the ABE guidance.

As the judge acknowledged, there are discrepancies between what JM is recorded as saying to Mrs. E, and what she said in her ABE interviews. Mr. Newton makes a number of additional criticisms of the evidence, and of the judge’s treatment of it. The critical question for this court, accordingly, is whether or not it was properly open to the judge to make findings of sexual abuse on the evidence available to her. This, in turn, breaks down into a number of separate questions which I will address after I have set out the evidence on which the judge relied.

In relation to the first limb of the evidence identified in paragraph 24 above, the judge sets out the recorded incidents in paragraph 21 of her judgment. They relate to the following dates: -

As Mr. Newton correctly points out, none of these recordings is evidence against the appellant, although JM’s behaviour can undoubtedly be described as sexualised, and the incidents support the proposition that, at the very least, she had been exposed to some inappropriate sexual activity.

Attached to Mrs. E’s statement made on 10 May 2007 are seven exhibits, in six of which she records what JM said to her. The first in time relates to 22 November 2006, and concerns CM. The first relating to JM is dated 24 November and the last 20 January 2007. JM’s two ABE interviews took place on 28 November 2006 and 8 February 2007. In addition (a point emphasised by Mr Newton for the appellant) there had been a “strategy” meeting on 24 November 2006, at which the decision to conduct the first ABE interview had been taken. That meeting had been attended by Mrs E who, as a consequence decided, as she herself recorded, to “talk to JM regarding some safety issues”. In all her recordings, Mrs. E (following JM) describes the appellant as “Grampa”, a spelling which I have retained. Her recording of the incident on 24 November 2006 reads as follows: -

I do not propose to set out the remaining recordings in the same degree of detail. It is, however, important to note that at 8.15 on the morning of 25 November the following is recorded by Mrs. E as having occurred: -

On 26 November, Mrs. E records the following exchange: -

On 1 December 2006, Mrs E records JM as telling her that the night that Grampa slept in her bed (during the reunification plan) he touched her fairy.

On 4 December 2006, Mrs. E records the following: -

Finally, on 20 January 2007, JM is recorded as telling Mrs E that she had not liked the doctor looking at her “fairy” on the previous day, saying that “ it tickled like when Grampa tickles her fairy”. Mrs. E and JM then began a game using a child’s nurses’ set, in which JM was the nurse, and Mrs. E was the patient. JM insisted on bandaging Mrs. E’s head, covering her eyes. When Mrs. E protested, the following dialogue ensued: -

We have a transcript of the two video interviews, although we were not invited to view either, and have not done so. It is plain that in the interviews, JM is much less forthcoming, and equally plain, as the judge recognised that some of what she says is inconsistent with what she said to Mrs. E. Furthermore, the interviewer adopts the somewhat unsatisfactory technique of asking JM to repeat what she has already said to Mrs. E. Such a technique immediately calls into question the concept of spontaneity in a child’s responses.

In any event, it is clear from the transcript that JM is plainly reluctant or unwilling to repeat the allegations she had made to Mrs. E. However, on page 11 of the first interview, JM describes her “secret”. This is that the appellant has touched the genitalia of her mother, her aunt SM, TM and JM herself. Asked how she knows nobody else had been touched in the same way, she replies: “Cause I was there”. The interviewer has some difficulty in getting JM to identify what she means by her “fairy” and she has to be prompted by a reference to going “to the toilet”. The interviewer also elicits that the last time this occurred was when JM was 6, and that the appellant had told her to keep it a secret. The touch has been underneath her nightclothes (jammas) and had been in the appellant’s bedroom. It had only happened once. Her mother, SM and TM had all been in the appellant’s bedroom.

Approximately half way through the interview, JM says she wants to see Mrs. E, who had taken her to the interview, but was not present in the room whilst it took place. Before doing so, however, JM says that she had seen the appellant touch her mother’s “fairy”, and that when she had later asked her mother to tell the appellant to stop it, her mother had agreed to do so. JM is then asked about her aunt, SM and the question is put to her: “what did you see Grampa do to (SM) that day then? Her answer is “Touched her ……On the fairy”. The same had happened with TM. JM initially says that TM had told the appellant to “leave her alone”, but then says that this is what she herself had said.

JM then goes to see Mrs. E, something she has been asking to do for some time. On her return, some six minutes later, she describes the appellant’s hand when touching her “fairy” as “cold”. The touch had been “inside” her “fairy” and had been “ticklish”. The following exchange then occurs: -

A little later on, the detective constable asks a leading question in the following exchange: -

In answer to further questions, JM says that this happened on the same day, after her mother, SM and TM had gone. She is then asked to describe what she has called “Grampa’s fairy”. She is unable to do so, nor can she immediately describe what Grampa uses his “willy” (the interviewer’s word) for. She says she had only seen Grampa’s willy once, but had not seen W’s “fairy”. She says that W had told her to touch Grampa’s fairy.

Later, she is asked how she had seen Grampa’s fairy, and her initial response is that he had pulled his knickers down. She then describes his “fairy” as “prickly” and “cold”. She had touched it with her hand. However, Grampa’s “fairy” had not changed. It had remained cold, prickly and soft. It had not got hard, and nothing had come out of it.

Further attempts by the detective constable to elicit what happened are not very successful, although there is a reference to TM sitting in the wardrobe in the appellant’s room – this being the reason why she had not seen JM touching the appellant.

Speaking for myself, I am less confident about the propriety of some of the questions asked than the judge. I have given examples of at least two leading questions. I am also unhappy about the passage which I have set out at paragraph 37 above when the interviewer adopts a strongly directive technique and requires JM to look at her and to concentrate. Equally, for the reason I have already given, I do not think it a helpful approach to invite a child to repeat what he or she has said to another person.

All that said, I am conscious of the fact that I have not seen the video, and that it is easy, in a long interview, to isolate examples of unsatisfactory practice and to give them a disproportionate importance. All in all, therefore, I am not prepared to say that the judge was plainly wrong when she finds that the interviewer’s questioning was “skilful” and “stayed just the right side of the line before becoming “leading” or “too suggestive”

The second interview was prompted by JM’s statement to Mrs. E on 20 January 2007 about the blanket (see paragraph 33 above). This interview also adopts the technique of inviting JM to repeat that she has said to Mrs. E, and JM is told at an early stage that she is a “brave girl”. The reference to the blanket emerges in the following exchange: -

JM is unable to describe the noises, but goes on to say that the appellant made her “touch his willy”. She later says she felt the appellant’s “willy” but is unable to describe it. Further attempts by the detective constable to elicit information are unsuccessful.

Also in our papers is an ABE with interview TM undertaken on 25 July 2007, in which TM makes a number of allegations of physical abuse against the appellant, but when given the opportunity to make sexual allegations – she is told that JM has been interviewed and has said things which were “slightly different to the things you’ve said” - she does not do so. Also in our papers is a statement from SM which strongly supports the appellant’s denial of sexual misbehaviour towards JM or anybody else in the family.

The judge begins her analysis with an assessment of the reliability of Mrs. E. She does so in the following terms: -

The judge then goes on to discuss the fact that what JM said on 24 November followed the strategy meeting and Mrs. E’s decision to talk to JM about the forthcoming ABE interview. The judge is rightly critical of the absence of any adequate minute of the meeting, but acquits Mrs. E of any inappropriate behaviour in relation to the discussion with JM on 24 November. Her findings in relation to that discussion were expressed in paragraph 24 of her judgment:

The judge then moves on to ask herself an important question, namely whether JM’s accounts to Mrs. E on 24-26 November as recorded by the latter were sufficiently reliable to support a finding. In answering this question in the affirmative, the judge considers and rejects a suggestion that JM’s account may have been contaminated by what CM had said about the appellant on 22 November, which formed the basis of the allegation of sexual harm against CM which I have set out at paragraph 19 above, and which the judge found had not been established. Whilst the judge thought it possible that the children may have spoken, she was not persuaded that there was any link between the children themselves which brought about JM’s allegations.

The judge was also influenced by JM’s statements to Mrs. E on 26 November (see paragraph 30 above). She was also impressed by JM describing TM as trying to look after her. There was, she found, independent evidence that TM was “caring and protective” of JM.

The judge described the ABE interview of 28 November as “difficult” because JM was “reluctant to engage with the process and was restless”. In paragraph 27 of her judgment, the judge identified three different incidents as described by JM. These were: -

The judge acknowledged that the accounts given by JM were “not always clear”, and despite what she described as “some skilful questioning” it had been difficult to get JM to give any supporting detail. She identifies a number of unrelated matters on which JM was accurate (including the fact that the appellant and his wife did not share a bedroom). The judge added: -

The judge then continued with the following: -

In relation to the school visits, the judge accepted as accurate the entry in Mrs. E’s diary for 4 December 2006 (see paragraph 32 above) but in paragraph 30 of her judgment rejected JM’s account that the appellant had touched not only her but TM, MM and SM. She said: -

The judge then turns to JM’s second ABE interview. She prefaces it by a description of what took place between JM and Mrs. E on 20 January (see paragraph 33 above). The judge describes the second interview as “more unsatisfactory than the first in that the detective constable was unable to establish a rapport with JM, who was very restless throughout and at points uncommunicative”. Having so found, the judge continues: -

On 4 March 2007, after the second interview, there was a further recording by TM’s foster carer, which is not in our papers. The judge deals with it in the following way:

Mr. Newton advanced seven grounds of appeal in relation to the judge’s findings of sexual abuse. These were: -

Mr. Newton added two grounds relating to the appellant’s alleged physical and emotional abuse of T, but accepted in these two respects that the judge had material upon which she could make findings of physical and emotional abuse. He did not, accordingly, press them in oral argument, and speaking for myself, I am satisfied that the judge’s findings on these two aspects of the case were properly open to her.

Mr Newton’s attack on the judge’s reasoning was all the more powerful for the moderation with which it was advanced.

Mr. Newton submitted that sexual abuse allegations should be set aside on the basis that the allegations did not have the necessary cogency. He pointed out that the only evidence against the appellant came from JM’s account to her foster mother Mrs. E and her video interviews. At an earlier hearing, the judge had rejected the instruction of an expert witness to assist her in her analysis of the video interviews, as occurred in Re N. In these circumstances, it was incumbent upon the judge to approach the evidence with particular care.

In relation to the allegations of sexual abuse, Mr. Newton opened his oral submissions by criticising the manner in which the judge had approached her task. She should, Mr. Newton argued, firstly have identified all the occasions on which sexual touching was alleged; secondly, it was incumbent on the judge carefully to have analysed circumstances in which accounts were given, and in this context she should have identified the factors for and against the likelihood of the appellant touching JM: thirdly she should have conducted a similar exercise in relation to the occasions on which JM says she was forced to touch the appellant. Having done all that, the judge should have then stood back, looked at the whole picture, and made her findings. Had she adopted this approach, Mr. Newton argued, she could not properly have found the allegations of sexual abuse made out to the appropriate standard.

The fact that the judge had adopted a flawed approach was demonstrated by paragraph 30 of the judgement, which I have set out at paragraph 54 above. The judge in that paragraph rightly rejects the proposition that JM, TM, MM and SM were all sexually touched by the appellant on the same occasion, but she does so against the background that she had already decided the essential truth of JM’s core allegation that she herself had been touched. If she had approached the alleged touching of the four persons on the same occasion with an open mind, the judge, Mr. Newton argued, would have inevitably been obliged to question the truth of JM’s basic allegation.

Mr. Newton linked this criticism with what he submitted were various other important failures on the judge’s part. In particular, she had failed clearly to analyse and compare the various allegations. Nr Newton pointed to his detailed written closing submissions on behalf of the appellant in the court below, and submitted that the judge had simply failed to address the inconsistencies and improbabilities which had been identified in JM’s account.

The judge needed to consider both internal and external consistency in respect of the accounts and to look critically for any inherent probability in the truth of what JM was saying. This task the judge had failed to undertake: although she had recognised that there were inconsistencies in JM’s account, she had failed to analyse them: at best, she had made a number of references to inconsistencies in passing.

Mr. Newton provided a number of specific examples, both in his skeleton argument and in his oral submissions. He submitted that the judge was wrong to hold that the question asked by police officer conducting the first interview stayed “just on the right side of the line”. He criticised the judge’s acceptance of JM’s description of the appellant’s penis as “prickly, cold and soft” The judge had been plainly wrong to hold that JM’s account of touching and being touched as given to Mrs. E was essentially the same as that given to the police officer.

Mr. Newton also criticised the judge’s findings as inconsistent and unclear. In rejecting JM’s account of others being touched sexually, the judge needed explain not only why this account was inherently implausible, but its effect on other allegations. If, as the judge found, the video interviews were insufficient for a finding in respect of JM, the reasons for reaching that conclusion needed to be clearly stated, and the impact on JM’s other allegations needed to be carefully considered.

Mr. Newton was critical of the judge’s conclusion that the first allegation made to Mrs E on 24 November had been spontaneous. He pointed out that CM’s allegations had been first in time; that JM and CM had been together before JM’s initial account to her foster carer. Moreover, the allegation had emerged following a strategy meeting attended by Mrs. E in which the risk of sexual abuse by the appellant had been discussed, and a “confidential chat” had then taken place between JM and Mrs. E.

Mr. Newton also criticised the judge for her failure to put into the balance the evidence which negatived abuse. Firstly, she made no mention of the fact that the appellant strongly denied the allegations, had given evidence about them and had been cross-examined. There was no analysis of the appellant’s credibility in this context.

The judge also appeared to have given no weight to the denial of any impropriety towards them given my MM and SM. MM in particular had been sympathetic to JM and critical of her father. She had, for example, accepted that the appellant had hit J (the appellant’s son) with a rolling pin. The judge appeared to reject this evidence without providing any analysis of why she was doing so.

Mr. Newton also pointed out that TM had made no allegations of sexual misbehaviour on the appellant’s part when she had been ABE interviewed by the police, notwithstanding the clear opportunity which had been provided by the interviewer – see paragraph 46 above. The judge had described TM as a truthful and reliable witness, but had failed to give any weight to the significance of the fact that she made no allegation of sexual impropriety against her father.

In support of these submissions, Mr. Newton took us to a number of places in the evidence. I intend no discourtesy to Mr. Newton’s submissions when I say that I do not propose to repeat this exercise in this judgment. This is because I accept Mr. Newton’s basic submission that there are indeed inconsistencies in JM’s account. The question, as it seems to me, is whether or not they are such as to vitiate the judge’s essential finding of abuse.

For the local authority and the children’s guardian, Mr Cobb acknowledged the force of a number of Mr. Newton’s criticisms of the judgment. He reminded us, however, that whilst it was inevitable that there would be points of detail which the appellant could legitimately identify and criticise, the fact remained that the judge had prepared a carefully structured and thoughtful judgment after six days of oral evidence and after reading four lever arch files of documents. She had formed clear views about the reliability of the adult witnesses, notably the two foster carers, whilst at the same time being sensitive to the inconsistencies in JM’s account. Mr. Cobb likened the determination of allegations of sexual abuse to the putting together of a jigsaw puzzle, and overall the judge had been entitled to rely on the features which she found supported the allegation of abuse. These included, but were not limited to, JM’s sexualised behaviour, the reliable evidence of the two foster mothers, the manner in which the ABE interviews had been conducted, and the language congruence with which JM described her experiences. On the overall facts of the case, Mr. Cobb submitted that the judge had been entitled to reach the conclusions she had expressed; that, as the trial judge, she was in a unique position to do so and that this court should not interfere with her findings.

In my judgment, Mr. Newton’s submission plainly raise an arguable case, and it was for this reason that, on 20 December 2007, we granted permission to appeal. In the event, however, and despite the cogency of Mr. Newton’s argument, I am not persuaded that the appeal should be allowed. I will endeavour to explain why I take that view.

The first point to make, I think, is that the judge directed herself clearly and appropriately as to the law she had to apply. Mr. Newton does not seek to say otherwise: his submission is that the judge failed to follow the clear directions she had given herself. It is, I think, nonetheless important to look at the judge’s statement of the law she had to apply.

The judge was, of course, referred to the leading case of Re H (Minors) (sexual abuse: standard of proof) [1996] AC 563 (Re H), and her reference to “the requisite standard” in paragraph 10 of her judgment (see paragraph 21 above) is undoubtedly a reference to the leading speech of Lord Nicholls of Birkenhead in that case.

The judge was, however, referred to a number of other authorities. Of particular significance, I think, is her reference to the decision of this court in Re B and Another (Children)(Allegations of sexual abuse: child’s evidence) [2006] EWCA Civ 773, [2006] 2 FCR 386 (Re B), and her citations from paragraphs 40 and 42 of the judgment of Hughes LJ, in which he discussed the guidelines in the publication Achieving Best Evidence (a copy of which had been provided to the judge in the instant case). In paragraph 42, Hughes LJ stated : -

I respectfully agree with that passage, and it is clear to me that the judge applied it when making her findings of fact in the instant case. As the judge pointed out, no objection (rightly in my view) was taken to the admissibility of any part of the evidence (nearly all of it hearsay) and the judge’s citation of Re B shows, I think, that contrary to Mr. Newton’s submissions, she was fully aware of the fact that she was dealing with hearsay, and the dangers of doing so.

The only point of concern in the judge’s directions to herself on the law is her citation of paragraph 37 of the judgment of this court in Re W (Care: Threshold Criteria) [2007] EWCA Civ 102; [2007] 2 FLR 98 (Re W), although the passage in question relates to physical harm other than sexual abuse. The judge records this court as saying that: “a single blow or even more than one by a parent to an 8 month of old would not suffice to satisfy the threshold criteria under the first limb of section 31 of the 1989 Act because there is no evidence that it caused the child significant harm”. What this court actually said was: -

It will be immediately observed that this court’s observations in paragraph 37 of its judgment in Re W related specifically to the facts of that case. Plainly, a forceful blow by a parent to a child of eight months would be capable on given facts, of causing that child significant harm, and would clearly raise the question of likely future significant harm.

Despite her misquotation of this court’s judgment in Re W, however, the judge plainly did not misdirect herself as a matter of law because the conclusion which she drew from the case was in the following terms: -

In our judgment, therefore, the judge directed herself correctly as to the law she had to apply, and no error of law in this regard is capable of being extracted from her judgment. It is, I think, a strong proposition to suggest that an experienced judge, having given herself such a clear and powerful direction, would then immediately depart from it. The question, nonetheless, is whether she applied the law correctly when making her findings of fact.

The second point to make – and this is the reason I have set out the directions of law which the judge gave to herself – is that in my experience the task of deciding an allegation of sexual abuse is not one which is capable of being undertaken by means of any particular or set approach. In my judgment, the only general rule is that identified by Hughes LJ in the passage from Re B cited by the judge. I would, however, both cite and respectfully agree with what Hughes LJ said in the following paragraph of his judgment, namely: -

It is, therefore, plain that this court in Re B was reinforcing the proposition that approaching the evidence in any given case, the court must have in the forefront of its mind the principles relating to the burden and standard of proof identified by Lord Nicholls in Re H.

It follows inexorably, in my judgment, that when reviewing findings of fact made by a judge in a sexual abuse context, this court must give great weight to those aspects of the case which are exclusively within the domain of the trial judge. I have in mind, of course, in particular, the judicial assessment of witness credibility. But in my judgment, the same principle applies to findings of fact. If a finding, based on a particular assessment of the evidence is one which a judge could properly make, this court cannot interfere, even if it takes the view that, by itself, it might have taken a different view of the evidence.

The reason for this is obvious, but nonetheless needs to be spelled out. The judge heard this case over a total of 9 days: she saw and heard a large number of witnesses, and read a large amount of documentation. Inevitably, only a small proportion of that material is available to us. But above all, neither of us was the trial judge. We were not there. The judge had what lawyers call “a feel” for this case, which only she was capable of achieving. The function of this court is strictly thus to review her decision, not to substitute its own.

This is not, of course, to say that an appeal against findings of fact can never succeed: - see Re B. I appreciate equally that these observations do not answer Mr. Newton’s criticisms. They are, however, the essential backdrop to them. I therefore turn to the criticisms which he makes.

Mr Newton’s first attack was against the method by means of which the judge approached her task. I have set out the criticism in paragraph 61 above. I do not disagree with Mr. Newton when he asserts that the approach he proposes is one which it would be sensible for a judge to follow. However, as my citations from Re B make clear, there is in my judgment no one “correct” way to approach allegations of sexual abuse. That is, of course, because every case is different. On the facts of the instant case, I do not think the judge can be criticised for the approach she adopted. The question remains whether or not, in undertaking the fundamental exercises identified in Re H and Re B, the judge was properly entitled to make the findings of fact which she did make in relation to the allegations of sexual abuse made by JM.

As I understand it, what the judge did was to place considerable weight on the evidence of Mrs. E. The judge, of course, had the opportunity to make an assessment of Mrs. E. I have set out that assessment in paragraph 47 above. It is, in my judgment, one which the judge was eminently entitled to make, the more so because it is by no means uncritical. Crucially, therefore, the judge was entitled to find – as she did – that Mrs. E’s recordings were a faithful reflection both of JM’s behaviour and what she said.

That does not, of course, mean that what JM said to Mrs. E was true. It is, as I understand it, essentially the leap from the acceptance of Mrs. E’s recordings to the acceptance of JM’s allegations which Mr Newton invites us to reject. Upon what factors, therefore, did the judge rely in order to translate Mrs. E’s reporting of JM’s assertions into findings that what JM said was, in its fundamentals, true?

In this context the judge was, in my judgment, entitled to say, as she did in paragraph 29 of her judgment that JM’s inability to give a full narrative description of the events does not, of itself, make her account unreliable. She was also entitled to comment, as she did, both that, given JM’s age and background, it would have been concerning if she had been able to give a full narrative account, and that such an account might itself “be more of a pointer of unreliability”.

It follows, in my judgment the judge was entitled to select aspects of JM’s account which met the Re H standard and to reject those which did not. It was not an “all or nothing” situation. In my experience of sexual abuse allegations, it rarely is. The judge was thus entitled to find that some aspects of JM’s account reflected reality, and that some did not. I therefore do not accept Mr. Newton’s argument that the judge’s rejection of the allegation that the appellant touched her, TM, MM and SM on the same occasion should have led her to reject the allegation that JM herself had been touched sexually by the appellant at all; furthermore, I am not persuaded that if the judge had approached the case in the manner suggested by Mr. Newton she would not have found the essential allegation of touching made by JM established.

The judge was, accordingly, fully aware of the inconsistencies in JM's account. She addresses the major inconsistency – the allegation that she and TM, MM and SM were all sexually assaulted on the same occasion, and rejects the latter allegation. As I have already made clear, however, rejection did not require the judge to reject the whole of JM’s account.

In addition to the accuracy of Mrs. E’s recordings, the factors which the judge found persuasive in assessing JM’s credibility were; (1) the unrelated matters on which she was accurate; (2) her use of appropriate age and experience related language; (3) the fact that she did not elaborate or expand her account (the judge records that she did not say she had seen W’s penis); (4) the consistency of her own account of being touched and of being required to touch the appellant; (5) her unprompted statement that she had been told not to say what happened (which the judge thought it unlikely she would have invented); (6) her account of her father visiting her school and what he was alleged to have said; and (7) the fact that, unlike her brother CM - in relation to whom the judge did not find sexual abuse – she did not have a reputation for being untruthful. In relation to the activity with the blanket, the judge found a degree of consistency in JM’s accounts, and confirmation in what TM had said to her foster carer. These were, in my judgment, aspect of the case which the judge was entitled to take into account in assessing JM’s credibility.

Against these arguments, Mr. Newton makes a number of points. He argues with some force that the judge either failed to take into account – or, at the lowest, had not demonstrated that she had taken into account – the evidence which negatived abuse. There had been no direct assessment of the appellant’s credibility on the sexual abuse issue, and no weight given to the denials of any impropriety by other witnesses, including TM.

I agree with Mr Newton that it would have been wise for the judge to have dealt in terms with her assessment of the appellant’s credibility on the sexual abuse issue. However, I do not regard her failure to do so as fatal to her conclusion. One has, I think, to remember that this was a hearing devoted to a specific issue or series of issues. The judge has still to hold the final hearing. I have no idea what role the findings of sexual abuse are going to play in that hearing. What, I think, is clear is that there are frequently good reasons why, at the finding of fact stage, a judge is reluctant to give the impression that a party’s credibility is wholly destroyed.

In the event, however, it is plain that the judge rejected the appellant’s denial of abuse, and references to him and to his evidence at various points in the judgment make it plain that she had not formed a good impression of him. Thus, whilst it would have been preferable if the judge had stated in terms that she disbelieved the appellant’s denial and if she had given her reasons for doing so, it was not, in my judgment, a necessary part of the exercise on the facts of this case.

Equally, I do not think that the judge can be criticised for the manner in which she dealt with the evidence of MM and SM, and TM’s interview. This was, on the judge’s finding, a dysfunctional family in which the appellant had played a dominant and negative role. In that context, JM’s allegation that she had been touched sexually by the appellant and had been required to touch him did not, in my judgment, require a detailed analysis of the credibility of other family members. The judge’s assessment in paragraph 30 of her judgment, which I have set out at paragraph 54 above is, in my judgment, sufficient.

In oral argument, Mr. Newton did not pursue his criticism of the judge for her rejection of the need for expert evidence to assist her in the assessment of JM’s credibility in the context of the video interviews. In my judgment, he was wise not to do so. In the final analysis, as Re N itself makes clear, the assessment of JM’s credibility was for the judge and for the judge alone. The judge’s acknowledgement and identification of the inconsistencies and her rejection of parts of JM’s account demonstrate that she was properly alive to the issue of credibility. Indeed, at one point, she reminds herself that making a finding about a family touching game in relation to which there had been no evidence would be a “reconstruction” on her part and thus impermissible. In my judgment, therefore, the judge made a sufficient analysis of JM’s credibility, and did not need expert evidence to assist her to do so.

Finally, on the question of whether or not JM’s accounts had been contaminated by discussions with CM, it seems to me that this is a pure question of fact, on which the judge was entitled, for the reasons she gave, to conclude that there had been no such contamination.

For all these reasons, I have come to the conclusion that the judge was entitled to make the finding of sexual abuse by the appellant on JM set out in paragraph 10 of her judgment, and that she was equally entitled to make the separate finding set out in paragraph 11.

I would, accordingly, dismiss this appeal on the sexual abuse issue.

I have not overlooked the fact that Mr. Newton also invited us to set aside the judge’s findings against the appellant of physical and emotional abuse. In my judgment, his arguments on these aspects of the case have considerably less force, and I take the view that the judge, on all the evidence, was entitled to find, as she did, that the threshold criteria under section 31 of the Children Act 1989 had been met in relation to all three children.

In relation to TM, the judge found the threshold criteria satisfied on the basis of significant emotional harm, which was to be inferred from:

Although Mr. Newton criticised this finding in very broad terms in his grounds of appeal, in his oral submissions he mounted a particular attack on the first sentence in this passage. TM, he argued, had been removed from home in November 2006 as a consequence of JM’s allegations, which TM had not corroborated. TM, he said, had been very unhappy at being removed, and had had a miserable first foster placement. The improvement in her demeanour, Mr. Newton submitted, dated from her change of foster placement in February 2007. The judge had been simply wrong in dating TM’s change of demeanour from her removal from home.

In all the circumstances of this case, I do not think it either necessary or appropriate for this court to rule on this particular submission. The fact of the matter remains that on 25 July 2007, TM had an ABE interview in which she made a number of serious allegations against the appellant. The rights and wrongs of TM’s removal from home are not before this court, and it will be for the judge in January 2008 to conduct the necessary welfare hearing, and to decide where each of the three children is to live.

I am acutely aware of this court’s limited function on this appeal, the focus of which has been JM’s allegations of sexual abuse. Quite what role these will play in the final welfare equation is an open question, and not one for this court. In my judgment, it is sufficient, on this aspect of the case, for us to say that the judge was fully entitled, on all the available evidence, to find the threshold criteria satisfied in relation to all three children. To say more than that, in my judgment, would be to trespass upon the welfare hearing.

I would, accordingly, decline Mr. Newton’s invitation to reverse the judge’s findings of physical and emotional abuse, and would also dismiss the appeal in relation to those aspects of the case.

I agree that the appeal should be dismissed for the reasons given by Wall LJ.