PR v JES & Anor

This is my judgment on the appeal of the appellant PR in respect of a decision of HHJ Meston QC given on 11 July 2018. The respondent to the appeal is JES. They are the father and mother of a little girl, T who was born in June 2011. I shall refer to the parties throughout this judgment as the father, the mother, and the child. I hope the parties will forgive me for using this shorthand; I do it to assist in maintaining the anonymity of the parties.

The child was a party to the proceedings in the court below but her Guardian has chosen to play no part in the appeal on the basis that the appeal is based on legal arguments. I shall return to this point.

On 11 July 2018, HHJ Meston QC handed down a judgment in which at paragraphs 89 to 95 he made findings against the father. These findings cross-referred to some of those set out in a Schedule filed on behalf of the mother. Leaving aside some of the excessive detail with which the schedule was burdened the findings in headline terms are as follows:

The father sought permission to appeal from HHJ Meston QC which was refused on 13 July 2018. At that time the basis of the application for permission to appeal was

On 1 August 2018 the father filed an appeal against those findings and renewed his application for permission to appeal. On 13 August 2018 Mrs Justice Knowles granted permission to appeal on all grounds and without conditions. A time estimate of one day was given for the hearing of the appeal which for reasons which I am unclear about was listed for January 2019; one year since the fact-finding had been undertaken; albeit only 6 months since the judgment. The delay that has plagued the parties and the child in the resolution of this litigation is staggering. In preparation for that hearing the parties filed an appeal bundle which comprised some 8 lever arch files. In addition the court was informed that an audio-visual recording of the child’s ABE interview would need to be viewed by the judge hearing the appeal. The view was taken that a one-day time estimate was insufficient in the circumstances and the matter was adjourned to a two-day hearing on the 14 and 15 March. One day was allowed for judicial reading and one day for the hearing of submissions and the delivery of judgment. On 13 March a ‘Suggested Reading List’ was submitted by counsel. This appeared to comprise of several thousand pages of material which together with audio-visual material would have taken several days to read. I therefore directed the parties to file a list of ‘Essential reading’ which it would be possible to undertake in the one day allowed. Unfortunately when the document was supplied it was the same list of suggested reading now entitled ‘agreed suggested essential reading list’ but highlighting documents requiring somewhere between 20 and 30 hours of reading excluding the parties’ Skeleton Arguments or the audio-visual material. I hardly need to say how deeply unhelpful this has been in seeking to prepare for the appeal. It is incumbent on the legal representatives of the parties to identify those documents which the judge MUST (hence the word Essential) read in the time allowed for reading and to provide a list which can be undertaken in that time. If the parties consider that the reading time allowed is wholly insufficient they should notify the court. Alternatively they should tailor the list of Essential Reading to fit within the time allowed. Bearing in mind an appeal is a review of the first instance decision not a rehearing and bearing in mind the appellate approach to challenges to findings of fact made at first instance it should be perfectly possible to identify a manageable list of essential reading. Belatedly the parties did agree some essential reading which I undertook along with viewing the ABE interview.

The grounds of appeal were settled by Ms Brannigan QC and Ms Hendry. They are as follows:

The grounds are elaborated and argued in a 19-page skeleton argument which is accompanied by a 21 page annex which comprises a chronology and analysis of the child’s account. I shall turn to the arguments deployed on behalf of the appellant father in my analysis of the grounds later in this judgment.

The father invites the court to allow the appeal and to (I think) substitute its own decisions. Although Ms Brannigan QC and Ms Hendry recognise that it would be more usual to remit the case to a different judge for determination, they also submit that I could refuse to remit it. This is on the basis of a submission that the allegations of the child are so flawed that no court properly directed could conclude that the child had been sexually abused by the father.

Ms Giz had filed a skeleton argument supporting the judge’s decision and on behalf of the mother invites me to dismiss the appeal. In the event that it were to be allowed she submits that it would need to be remitted for rehearing.

Nothing was filed on behalf of the child herself.

I heard submissions from Ms Hendry on behalf of the father and from Ms Giz on behalf of the mother over the course of the 2^nd day of the appeal. Their submissions were focused and succinct.

Inevitably given the nature of the appeal, Ms Hendry had to delve in some detail into the long chronology dating from 15 November 2015 through to 16 May 2017 over which evidence had emerged from the child or other sources and which bore upon the ultimate issue. Ms Hendry produced a detailed annex in the form of an annotated chronology which she relied upon to demonstrate that the judgment of 11 July 2018

Ms Giz relied on the judge’s extensive exposure to the evidence in the case, he having conducted the Part I of fact-finding 1 in July 2016 and Part II of fact-finding 1 in January 2017 and he having heard evidence over 4 days in fact-finding 2 in January 2018. He was, she argued, ideally placed to see the case in its full evidential context. She referred to the fact that he had had lengthy and detailed written submissions from each of the parties at the conclusion of fact-finding Two. She submitted that both the judgment of January 2017 and July 2018 contained comprehensive reviews of the evidence, identified the relevant law and the approach that mandated and demonstrated the application of that approach to the evidence. She submitted that he had considered all of the relevant issues, that he had taken all relevant evidence into account and that he had not given undue weight to the child’s account in May 2017. She submitted that the combination of the evidence from the child to the contact centre worker and in her ABE interview together with the change in the credibility of the parties was more than sufficient to justify the change in the ultimate conclusion that he reached on the allegations. She observed that he is amongst the most experienced family court circuit judges and has undoubtedly heard numerous cases of this type. Decisions on the credibility of witnesses are part of his everyday function. Ms Giz also said that many of the complaints now made about the judgment were not made at the time when clarification of the judgment was sought. She submitted that if I considered there were matters that the judge failed to address that it would be possible to invite the judge to further address those matters even at this stage.

In respect of this latter point Ms Hendry told me that on 11th July 2018, she was copied in to an email to HHJ Meston QC in which Ms Giz suggested that it might be appropriate for the court to invite her (Ms Hendry) to set out the flaws or deficiencies that form the basis of a proposed appeal and so provide the court the opportunity to consider whether it should address those matters. Ms Hendry told me that she liaised with Ms Branigan QC overnight and on 12 July, before she had managed to respond, both parties received a further email from the court attaching the supplementary judgment, which also contained the formal refusal of permission to appeal – backdated to 11 July. As articulated to HHJ Meston QC in response, Ms Hendry took

At the conclusion of day, 2 I reserved my decision and judgment

The FPR 30.12(3) provides that an appeal may be allowed where the decision was wrong or unjust for procedural irregularity.

In Re F (Children) [2016] EWCA Civ 546 Munby P summarised an approach to

Lord Hoffmann also said in Piglowska v Piglowski [1999] 1 WLR 1360, 1372:

“If I may quote what I said in Biogen Inc v Medeva Plc [1997] RPC 1, 45:

‘... [S]pecific findings of fact, even by the most meticulous judge, are inherently an incomplete statement of the impression which was made upon him by the primary evidence. His expressed findings are always surrounded by a penumbra of imprecision as to emphasis, relative weight, minor qualification and nuance … of which time and language do not permit exact expression, but which may play an important part in the judge’s overall evaluation.’

First, the appellate court must bear in mind the advantage which the first instance judge had in seeing the parties and the other witnesses. This is well understood on questions of credibility and findings of primary fact. But it goes further than that. It applies also to the judge's evaluation of those facts. If I may quote what I said in Biogen Inc v Medeva plc [1997] RPC 1: ‘The need for appellate caution in reversing the trial judge's evaluation of the facts is based upon much more solid grounds than professional courtesy. It is because specific findings of fact, even by the most meticulous judge, are inherently an incomplete statement of the impression which was made upon him by the primary evidence. His expressed findings are always surrounded by a penumbra of imprecision as to emphasis, relative weight, minor qualification and nuance … of which time and language do not permit exact expression, but which may play an important part in the judge's overall evaluation.'

So far as concerns the appellate approach to matters of evaluation and fact: see Lord Hodge in Royal Bank of Scotland v Carlyle [2015] UKSC 13, 2015 SC (UKSC) 93, paras 21-22:

“21 But deciding the case as if at first instance is not the task assigned to this court or to the Inner House … Lord Reed summarised the relevant law in para 67 of his judgment in Henderson [Henderson v Foxworth Investments Ltd [2014] UKSC 41, [2014] 1 WLR 2600] in these terms:

“It follows that, in the absence of some other identifiable error, such as (without attempting an exhaustive account) a material error of law, or the making of a critical finding of fact which has no basis in the evidence, or a demonstrable misunderstanding of relevant evidence, or a demonstrable failure to consider relevant evidence, an appellate court will interfere with the findings of fact made by a trial judge only if it is satisfied that his decision cannot reasonably be explained or justified.”

See also the Privy Council decision in Chen-v-Ng [2017] UKPC 27

In re J (vulnerable witness: sexual abuse: fact finding) [2014] EWCA Civ 875 [2015]

Thus it is clear from appellate courts of the highest level, that on an appeal from a first instance judge in relation to fact-finding this court should not interfere unless compelled to do so by the identification of clear and substantial errors in the process of the evaluation of the evidence and the drawing of conclusions of fact from that evidence. The nature and depth of the analysis to be conducted in any particular case and the level of detail that might be expected will depend upon the particular facts of

Mr Justice MacDonald has recently provided a comprehensive reminder to us of the approach to fact-finding in such cases in AS-v-TH and Others (False allegations of abuse) [2016] EWHC 532 (Fam). I do not intend to repeat that in this judgment, suffice to say that from paragraphs 23 through to 29 he summarises the basic principles. He draws attention to the specific risks in private law proceedings where allegations of abuse fall to be determined referring both to the observations of Baroness Hale in the Supreme Court in re B [2008] UKHL 35 and the Best Practice Guidance of June 1997.

He goes on to deal with particular issues which arise when dealing with allegations of sexual abuse. In paragraphs 30 to 32 he refers to the two-stage test and the Cleveland report. He goes on to consider some of the relevant statutory guidance and nonstatutory guidance, which is there to assist professionals in their contacts with a child. The overarching message which emerges from the guidance is the care that needs to be taken in dealing with children who have made an allegation of sexual abuse, in order to ensure insofar as can be achieved that what they have to say is obtained in a way which makes it as reliable as possible.

In re J (above) at paragraph 74 the Court of Appeal emphasised by reference to what Lord Justice Hughes said in Re B (allegation of sexual abuse: child evidence) [2006] 2 FLR 1071, the great care that needs to be taken in obtaining evidence from children to ensure its reliability.

In Re E (A Minor) (Child Abuse: Evidence) [1991] 1 FLR 420 at 447H Scott- Baker J (a decision delivered when the messages of the Cleveland report were still very much ringing in the ears) identified 8 factors which he considered to be relevant to the determination of the weight that should be given to a child’s account. I do not read his decision as identifying a discipline that should be applied in every case but rather it is an example of the sorts of issues, which might illuminate the difficult evaluation of the weight to be given to a child’s account.

What clearly emerges from the authorities is that in relation to allegations of sexual abuse of young children the court must not only deploy the generic fact-finding approach but must in particular identify the need for special care to be taken in evaluating the reliability of the evidence of young children. The precise nature of the analysis that will need to be undertaken will of course vary from case to case. The more complex the background and evidence the more sophisticated will the analysis need to be and the more obvious the demonstration that special care has been taken.

There are 2 judgments, which are relevant to this appeal. The first was delivered in January 2017. In that the judge found that the sexual abuse allegations were not established on the balance of probabilities and thus sexual abuse had not occurred. The second judgment was that delivered in July 2018, which concluded that it had.

The change from one conclusion to the other lies at the heart of this appeal.

HHJ Meston QC became involved with the case on 19 May 2016. Directions were made for a fact-finding hearing to determine the disputed allegations of sexual and/or emotional harm. This was listed for 3 days commencing on 19 July 2016. Over 3 days the judge heard evidence and written submissions were provided thereafter with judgment being reserved. However on 2 August 2016, the mother’s solicitors wrote to the court stating that the child had made further significant and detailed disclosures and requested that the evidence be reopened. The judge heard further evidence from each parent from 29 – 30 December 2016 and further documentation was submitted. Judgment was reserved.

At this stage it appears to me that there were some key evidential anchors which were relevant to the determination of the allegation of sexual abuse. They may not be the only ones but they are highly significant.

In the judgment that was delivered in January 2017 HHJ Meston QC set out a very detailed exposition of the applicable legal principles to be applied when conducting fact-finding and evaluating allegations of sexual abuse in relation to a child. It is curious and may be relevant to this appeal that in that first judgment he includes from paragraphs 5 through to 11 a quite detailed summary of the approach specific to the evaluation of sexual abuse allegations made by young children which includes reference to Re E (above) and the 8 points identified by Scott Baker J, as well as the need to consider the climate in which the alleged disclosures were made and its particular importance. This includes the evolution of allegations over time, the family dynamics, the potential for false allegations, the relevance of any previous history of child abuse, the care that needs to be taken when interviewing young children and the potential for ambiguity, misrecollection or misperception as well as an appreciation of the child’s age, maturity and level of understanding, the necessity for considering consistency of accounts given, the importance of corroboration and the range of possible findings.

He carries out a very thorough review of the evidence that was available at that time and a very detailed analysis of the parents’ evidence. At paragraph 123, he states that determination of most of the disputed issues turns on the credibility of the parents themselves. This must be because most of the evidence which was said to have emerged from the child had come via the mother and because the evidence about the 2 particular occasions when the child was said to have had redness around her labia or vagina came from the parents. She had made no frank allegations to police or social workers although had made various comments and demonstrated behaviours to them and in particular to Mrs Butchers which were potentially relevant in the determination of the sexual abuse allegations.

He concluded in respect of the parents that he was left with reservations about the credibility of each parent with the mother sometimes appearing to exaggerate and the father to downplay. He found it hard to gain a clear picture of the family dynamics or the parents relationship. He found the father’s evidence to be persuasive although approached it with caution bearing in mind that the mother and her stepfather said the father could be deceptively convincing. He found the mother to be an intelligent and concerned parent anxious for the safety and welfare of her daughter. On occasion she became genuinely emotional. She had said she did not want to believe sexual abuse had occurred.

At paragraph 129 the judge identified that it was not a case where there were any clear indicators of what did or did not happen. He identified 6 particular points which he considered relevant in determining whether it was more likely than not that the father had sexually abused the child. They were:

He found the father’s account to have been essentially consistent and he could not find that the father’s denials of sexual abuse were false. He concluded that there was insufficient material upon which the court could properly draw any inference adverse to the father. I interpret this to mean that taken in combination, the evidence was insufficient to establish on the balance of probabilities that the child had been sexually abused or that the father was the perpetrator. Having set out the binary rule earlier this conclusion amounts to a determination that the father had not sexually abused the child.

In March 2017, the Cedar project to whom the child had been referred to assist her with the consequences of the parental conflict and to consider contact began to explore the possibilities for progressing contact between the child and the father. The Springbourne family centre who had been supervising contact had provided a report which identified that contact was pleasant but there was a lack of physical and emotional warmth and that the child was wary of close physical contact with the father. On about 31 March, one of the Cedar workers spoke to the mother about the possibility of unsupervised contact. It appears that the mother was upset by this.

On 18 April 2017 the child was asked how she would feel about visiting her father at his home. She said, “that’s a difficult one.” Ms Taylor asked her if she would like to write down and put it in the worry jar which she did. The child wrote

“Dad washes my botm I don’t lik it +am far away from mummy Dad gives me lots of sweets.”

She later made another comment about the main thing when dad washes me and that it would make her happy if dad didn’t give too many sweets.

On 26 April 2017 Ms Taylor asked the child what she meant by her not liking her dad washing her. She offered the child a doll on which to demonstrate. The child did so by washing the doll’s genitals and bottom. She was asked what she did not like about it and she wrote down “scratchy herty sorr”

On 2 May 2017 the mother phoned Ms Taylor and told her that the child wished to speak to her before a contact session. During a conversation the child wrote down on a piece of paper she didn’t want to see her dad “because he does nasty stuff”. She then produced a piece of paper on which she had written some bullet points including “this is what happened, dad put one finger in my bottom at a time.” Ms Taylor asked her to explain each of them following which the child and Ms Taylor re-enacted events. During this the child held up one finger at a time and Ms Taylor asked, “where is the finger at front or back bottom?” The child replied “both.” Ms Taylor asked if she had told anyone and she said that she had told the police. The contact centre manager referred the matter to children’s services. Contact then took place within the contact centre. There was then a further session with Ms Taylor on 10 May in which there was no express discussion of the allegations but Ms Taylor discussed with her talking to the police telling, her that she was brave and she needed to be big and brave when she spoke to the police and that it was important tell the police everything; that is presumably everything that she had told Ms Taylor.

This was referred to the police and the child was to be ABE interviewed on 16 May 2017. This was preceded by a rapport visit on 12 May 2017 during which Mr Taylor was present and during which the child wrote down 6 notes. Some of the content includes:

The interview itself took place on 16 May 2017. I have watched the DVD of this. I offer no observation on how the child appears. During the interview the child in general did not give verbal answers to questions she was asked. In general, she wrote down the question and an answer. Some of her answers are as follows:

As a result of what the child had said to Springbourne and to the police, on 12 October 2017, HHJ Meston QC considered whether he should reopen the fact-finding hearing. Applying the guidance in Re ZZ [2014] EWFC 9 [2015] 1 WLR 95 he determined that the evidence of what the child had said amounted to a solid reason for reopening the enquiry. Thus a further hearing to determine the allegations was arranged.

The rehearing took place between the 22 – 26 January 2018. For that hearing the judge had available to him:

The judge heard evidence from the mother and the father as well as police staff investigator Tarry and Donna Blanche, and Julie Taylor of the Springbourne family centre. At the conclusion of the hearing the parties filed their written submissions on the 12, 18, and 20 February 2018. The Guardian adopted a neutral stance in relation to fact-finding but submitted observations designed to assist the court. The Guardian identified matters, which undermined the credibility of both parents. She drew attention to the guidance from Mr Justice Scott Baker in re E in particular in relation to the number of times the child had been interviewed.

On 9 June HHJ Meston QC circulated a draft judgment. He provided a corrected judgment and a supplementary judgment dated 11 July, which dealt with some requests for clarification or amplification.

The judgment sets out an introduction (paragraphs 1 – 23) of the context in which the new allegations were made in the process which had been undertaken and which had led to an application to reopen the fact-finding and the decision to reopen. At paragraph 9, it was recorded that on 27 March the mother had been approached by the contact centre to discuss the possibility of unsupervised contact. In the mother’s statement she said she was upset by this but reluctantly agreed to it. In a log of events the mother describes herself as despairing not knowing what to do. The judge records how the child then made further allegations to the Springbourne family centre on 2 May and underwent an ABE interview on 16 May.

At paragraph 24 the judge sets out a section entitled ‘the principles applicable to factfinding.’ In this he refers back to his earlier judgment, and the judgment of Mr Justice MacDonald in AS-v-TH (above); and says it should be set out in full. He refers to paragraphs 23 to 29 (the generic fact-finding section) but not to paragraphs 30 to 32 which appear under the heading ‘allegations of sexual abuse.’ Nor does he repeat paragraphs 5 to 11 of his earlier judgment in which he set out the detailed exposition of the approach to determining the reliability of sexual abuse allegations emerging from young children.

At paragraph 25, HHJ Meston QC sets out the approach to a rehearing. His previous findings were a starting point and that he had decided there was insufficient cogent evidence to justify the findings then sought on a balance of probabilities. He reminded himself that all the evidence must be fully assessed and that there is no priority between the evidence given at the earlier or later hearing. He went on to set out the schedules of findings sought summarising some 20 odd of the findings sought.

He then turned to the hearing and a summary of the evidence. He set out that he had re-read the bundles from the earlier proceedings and his notes and the written submissions then provided. At paragraph 30 he said

“there was little new or different evidence about the events that were covered during the original proceedings, although aspects of those events and of the parents’ attitudes, behaviour and motives were again explored in some detail during the further hearing. The reformulated allegations (although wider in scope than I had intended or expected) did help to refocus on the detailed accounts of the surrounding events and circumstances which are of potential relevance to the assessment of credibility.”

From paragraphs 31 through to 79 he reviewed the evidence. It is clear from the summary that this focused largely on events surrounding the allegations made by the child in May 2017.

I have set out above a summary of the evidence he included about what the child said to Ms Taylor. The judge noted at paragraph 43 that Ms Taylor said she thought the child became more confident as the sessions progressed and that she had not got the impression the child was making it up. She thought the child was describing sexual abuse. She said it was not for her to disbelieve the child or to investigate. The centre manager said that there their role was not to see what the child says about her father but to build her resilience and to help children impacted by family conflict. In his conclusions he went on to identify that what the child said was carefully noted.

In relation to the ABE interview process the judge identified that the interviewing officer had conducted perhaps 100 such interviews. She said the child had a list of things she wanted to talk about but that did not suggest she had been coached. She considered the child had been consistent. The only question that concerned the investigating officer was the ‘40 times’ response. In his conclusions the judge noted that there was no significant criticism made of the interview process. The judge noted that at that time the child was just under 6 and was describing events that could not have occurred later than early January 2016. He identified that the interview showed the limits of her recall and descriptive ability.

The judge went on to review the mother’s evidence and the father’s evidence. Part of the mother’s evidence included entries from a log she was keeping. In January 2017 (so around the time of the judgment in the first fact-finding hearing) she recorded repeated remarks by the child about the father washing her and hurting her and being told to keep it a secret. A further entry on 17 February 2017 records the child complaining of the father washing her and him telling her not to tell her mum and him using his fingers and putting them in her vagina. Further entries appear in May, June, and July 2017. It appears much evidence was given about whether the mother knew about the father routinely washing the child after going to the lavatory. If there was evidence about the events of 15 November 2015 and 13 December 2015 it is not related in any detail. The mother confirmed that she believed there had been sexual abuse and that the child had been asked to keep it a secret. She denied encouraging the child to feel anxious and denied building a case. She alleged the child had displayed sexualised behaviour almost every time other children came around.

The father confirmed his previous evidence was true and there seems to have been some re-exploration of the events of 15 November. There was much focus on his assertion that he had regularly washed the child after toileting and inconsistencies in relation to that account.

In the section of the judgment where the evidence is reviewed it is for the very significant part simply relating the evidence that was given rather than an analysis which would later be imported into a conclusions section. Thus in order to get to the heart of the judge’s reasons for making the findings he did and how he approached the analysis in order to reach those conclusions one needs mainly to look to the ‘Conclusions’ section.

The central argument made on behalf of the father is that the evidence in relation to the child’s allegations was so fatally flawed that it was not open to the judge to make the findings sought by the mother. In support of this central argument it is submitted that:

Ground 1 asserts that the Judge failed to properly apply the legal principles and as a result reached a flawed conclusion.

Thus it is a submission that the judge was wrong in law in his judgment in that he failed to apply the relevant legal principles. It is accepted that the judge correctly set out the approach to fact-finding where allegations of sexual abuse are made by children. The summary contained within Ms Brannigan QC and Ms Hendry’s skeleton argument is essentially a mirror of the approach set out by HHJ Meston QC in his first fact-finding judgment. In particular Ms Brannigan QC and Ms Hendry focus their criticism on the judge’s failure to adopt the analytical method for evaluating the weight of a child’s evidence which is contained in Re E (a minor) (child abuse: evidence) [1991] 1FLR 420. In that Mr Justice Scott Baker identified 8 discrete factors which needed to be borne in mind in evaluating the weight to be attached to a child’s evidence.

One central point made on the appellant father’s behalf is that in the first fact-finding judgment of January 2017 the judge did not identify in paragraph 129 (i.e. the key reasons why the mother had not discharged the burden of proof) the role played by professionals in eliciting information from or questioning the child. It is submitted that having referred to it in his summary of the law at paragraph 5 the judge ought to have identified it later.

Perhaps more importantly the father submits that had HHJ Meston QC applied the 8 factors identified as relevant to assessing the credibility of allegations made by a child in the judgment of July 2018 the answers would inevitably have pointed to a clear conclusion that the child’s allegations to Cedar/Springbourne and in the ABE interview were unreliable.

In support of this at paragraph 5.4 of their skeleton Ms Branigan QC and Ms Hendry go through the 8 points.

Ground 2 which is closely linked to Ground 1 asserts that:

This is a challenge to the facts that the judge found to be established. It comprises in appeal terms a number of components which seem to me to be:

The central thrust of this ground is that the judge failed to carry out a forensic analysis of the emergence of allegations of sexual abuse and that had he done so it would have been clear that the mother’s reports of allegations made by the child were closely linked to conclusions reached by professionals (GP, social worker, police, court) that were adverse to the mother’s belief that the child had been sexually abused. It is implicit in this that the adverse findings prompted the mother to either fabricate allegations or to ‘innocently’ behave in such a way as to prompt the child to make such allegations.

It is submitted that the judge failed to place the allegations made to the Cedar worker or in the ABE interview in the proper context, namely in the light of everything that passed between 15 November 2015 and the 2^nd fact-finding hearing. It is submitted that the judge compartmentalised the evidence and failed to place the child’s allegations of May 2017 in the overall evidential picture. It is said that the allegations to the Cedar worker and in the ABE interview were valueless when considered in the light of what had gone before.

It is also submitted that the judge failed to engage with a number of other factual issues, which had arisen during the course of the hearing. The 2 key points identified by the appellant father are that of the mother’s prior knowledge of the father regularly washing the child after she had defecated and the events of 15 November and 13 December 2015. It is submitted that these went to the core of the mother’s reliability and credibility. Further factual issues were specifically identified on behalf of the father in paragraph 7 to 14 of counsel’s closing submissions. I shall return to these later.

Ms Hendry took me through what she said were some of the critical elements of the ‘the child’s Account’ in her Annex. I have referred to many of the critical dates when reviewing the material that was before the judge during the first fact finding and in the 2^nd tranche of references to what the child said which led to the reopening of the factfinding. She submitted that it was immediately obvious from that history if one looked at it, whether as an overview or in detail, that the path to the allegations made in April and May 2017 needed the most careful consideration and analysis by reference to the established principles for gauging the reliability of a young child’s allegations.

Ms Giz, as I have already noted, said that with a judge of this experience who had previously set out in full the approach to allegations of sexual abuse; who had explicitly reminded himself and re-read the evidence from the first fact-finding hearing and who had carefully considered the circumstances in which the allegations were made in April 2017 and the contents of those allegations as recounted both to Ms Taylor and in the ABE interview had carried out the careful analysis required of him. She pointed out that:

Thus Ms Giz submits that within the judgment, HHJ Meston QC does consider the factors which are relevant. She acknowledged that although the judge did not specifically address the number of times the child had been interviewed or the diminishing weight it was abundantly clear that he had engaged in considering how the allegations had been communicated over time because he specifically referred to the change over time and the reasons for it. She also acknowledged that the judge had not dealt specifically with the despair that the mother had recorded in the log in respect of the possibility of unsupervised contact but submitted that in general terms the judge had addressed the mother’s state of mind in relation to contact

The conclusions section of the judgment commences at paragraph 80 and comprises about 3 pages and 16 paragraphs. At the commencement the judge reminds himself that he had previously found there not to be sufficiently cogent evidence to justify findings on a balance of probabilities. He reminds himself that the burden of proof of sexual abuse rests on the mother. He had of course earlier set out the ‘Principles applicable to fact finding’ and so one can undoubtedly assume that he is expressly intending to adopt that approach.

What he does not do at the commencement of this section is identify the great care that needs to be taken in determining the reliability of allegations made by young children. Taken together with the absence of any reference in his ‘the principles applicable to fact-finding’ section to the detailed exposition he had set out in his January 2017 judgment this is slightly surprising. Given that the central evidence that had led to the rehearing and that was at the heart of the case he had just heard and given that this was clearly a case of considerable complexity having regard to it being a rehearing one might have expected a clear self reminder of the great care that needed to be taken in assessing the weight to be given to the child's evidence and some of the factors that needed consideration; the need to consider the number of times the child had been interviewed and the diminishing value of further interviews, the age of the child, the great care to be taken in assessing the reliability of adults who report what the child says, the climate in which the disclosures were made and whether they may have been influenced by adult words or behaviour, whether what the child has said is likely to be fact or fiction or a mixture of the two, the consistency of the child's accounts, whether the child's behaviour before and after the disclosures is consistent with the truth of them, whether there is any reliable independent evidence to corroborate what the child has said. Whilst I do not suggest that it is necessary for a judge to give himself a checklist and mechanistically go through it that would of course demonstrate that the issues had been considered and answered. So is it clear from the subsequent paragraphs that that cautious approach in which those markers of reliability were applied or not?

My initial response to reading paragraphs 83 to 93 of the judgment was that it was a very brief analysis. Of course, brevity is absolutely to be applauded. Some cases though do not lend themselves to brevity of analysis. It seems to me that this case was at the most complex end of the spectrum when it comes to analysis of the evidence as a whole but most particularly in relation to the reliability of the account given by the child. It seems to me it required a comprehensive review of the evidential trail that led from 15 November 2015 through to the ABE interviews in May 2017 in order to illuminate the process by which the child moved from neither making any allegation or demonstrating any trace of unhappiness with the father's behaviour either

At paragraph 81 the judge identifies that the primary evidence relied on by the mother is what the child said to Ms Taylor and in the ABE interview. The judge concludes that what she said was carefully noted and he acknowledges that there was no significant criticism of the later ABE interview. He reminds himself that the child was young when interviewed and recalling events when she was much younger and her recall and descriptive ability was limited.

Although Ms Giz can justifiably say that given his knowledge of the case and his exposure to the evidence, the judge must have had in mind the events from 15 November 2015 through to late 2016 and how the later allegations needed to be informed by those, it is not immediately evident from the judgment that his consideration of them was undertaken against that factual backdrop. It is all well and good to say one can assume it has been done but without any real evidence of it is that assumption justified? Of course, the judge was fully aware that the child had moved from not making allegations through to making allegations and hence his judgment asks why that might be. He answers it by identifying that the child has become more confident. I do not think that on the facts of this case that is sufficient. Without suggesting that the whole of the history needed to be repeated in the conclusion section I do consider that some explicit cross-checking was required to demonstrate that the child’s recent allegations had not been compartmentalised and that they had been subjected to the rigorous scrutiny and contextual analysis that a complex sexual abuse allegation case of this sort required.

It also seems to me that the complaint that Ms Hendry makes on behalf of the appellant father in relation to HHJ Meston QC's analysis of the allegations made by the child in late April and on 2 May 2017 is well founded. The conclusion section of the judgment HHJ Meston QC does not subject that evidence to any real detailed scrutiny. The evidence is rehearsed and in general terms it is recognised that the allegations emerged in the context of a possible progression onto unsupervised contact but it does not look at that against the backdrop of the earlier history. He does say that it would be quite understandable if the child had come to realise her mother’s concerns and that it was something her mother disapproved of together with the remaining impact of leading questions asked in April 2016 but that is in looking for theories which explain it rather than identifying the context in which it happened. There are many other points which either could or should have been addressed in relation to the reliability of this evidence.

Some of the matters which are not addressed in the judgment are:

At paragraph 82 he identifies the real question as being “(i) whether what the child said and wrote in May 2017 are reliable statements of what has actually happened to her and, if not, to consider (ii) why she has been making these ’disclosures’ in a way which has developed over time.” Apart from this reference, in the subsequent paragraphs the judge’s analysis does not address the point of how many times the child had been interviewed and the diminishing value of her accounts. At paragraph 82 he refers to the evidence of Mrs Bowles, the social worker who ‘described the child telling her things in a matter-of-fact manner.’ This is the only reference really to the path that the allegations took from beginning to end.

These 2 questions are perhaps an elision of the ‘ultimate’ question of reliability with one of the factors, which might inform their reliability. It does not address the other factors, which might bear upon the reliability issue. I accept Ms Giz’s point that several of the considerations identified by Mr Justice Scott Baker in re E can be discerned from the conclusions section of the judgment. However there are significant omissions. They include:

The absence of express consideration of these points in a case of significant complexity is it seems to me a flaw.

It may be that the absence of consideration of one or more of these matters alone would not be sufficient to undermine the analysis of the reliability of the allegations made by the child in April/May 2017. However I consider that taken together they constitute an error in applying the principle of caution in a case of real complexity and an error in the analysis that was required to appropriately consider the weight that should be given to those allegations in the overall weighing of the evidence.

In paragraph 84 the judge recognised the 3 possible explanations for the child saying what she had. He explicitly rejected fabrication by the mother – as he had in January 2017. He recognised the possibility of ‘innocent’ creation and considered it would be quite understandable if the child had come to feel it was expected of her to say these things. However – and having regard to what I have identified as the incomplete analysis of the context - I am unable to discern how it was that this real possibility was dismissed. As he had said in January 2017 this was not a child who was thought prone to fantasy or lying and he had concluded in 2017 ‘the probability that [the child] has sensed and responded to her mother’s anxieties and disapproval of the father.’ In my view an explanation of why this was no longer the explanation was required. Particularly given that he had found (again) that it would be understandable in the circumstances. Was it now a combination of response to the mother’s anxiety AND she was actually abused or had the latter displaced the former?

From paragraphs 86 – 91, the judge considers the credibility of the parties. He concluded that the mother’s credibility had not diminished; thus a tendency to exaggerate (see para 123 of the first judgment). The father he found to be persuasive albeit with a tendency to downplay in the first hearing. In this judgment he considered that the father’s evidence had become less credible and convincing. The basis of the change in the judge’s appraisal of his credibility was largely linked to peripheral issues. However he also identified at paragraph 90 that the father’s account of his practice of washing the child’s bottom was undermined by gaps and inconsistencies. This did go to an issue which, was if not central at least very closely linked. Overall it altered his assessment.

Ground 3 asserts that:

This seems to be a submission that the judge’s evaluation of credibility failed to give due weight to the previous findings or conclusions on credibility. It is submitted that he did not approach the questions of credibility of the mother and father in an evenhanded way. It is asserted that he identified certain issues in the father’s case, which undermined his credibility but did not do the same in respect of the mother. The father goes on to argue that the failure to determine the issues of prior knowledge of washing and the events of 13 December deprive the judge of conclusions that were central to the determination of the credibility of the parents. I’m not sure that they are central to determining the credibility of the parties but I do agree with Ms Hendry that the events of 15 November 2015 and 13 December were central; of which see below. Matters of credibility are peculiarly within the remit of a trial judge who has seen and heard the parties. I do not consider that it can be said that the judge’s assessment of credibility was flawed and inconsistent with the findings previously made but it is perhaps neither here nor there given that I consider that grounds 1 and 2 are established. The question of the credibility of the parties will be at large upon the remitted hearing.

Ground 2 (ii) asserts that the judge failed to make findings of fact which would have significantly informed the overall fact-finding exercise. My initial reaction to the submission that they were central was to doubt that proposition. Why were they any more central than any of the other numerous allegations within the schedules? Ms Giz submitted that it was implicit that he made findings in favour of the mother on these issues because he rejected the father’s explanations for the redness and swelling that had been observed. She also submits that it was not essential for him to make findings on every issue. On further reflection though I agree with Ms Hendry’s submission. Ultimately the judge was considering allegations of sexual abuse. The Scott schedules had a tendency to obscure that central issue. It seems to me that the way the schedule was drafted did not assist the judge in identifying clearly the facts which were central to the determination of the case. Item 1 on the schedule contains the headline allegation outlined in paragraph 3(i) above. It also identified 2 specific occasions, 15 November 2015 and 13 December 2015 when it was said that the child had returned home with a red and swollen genital area. However the schedule went on to include 7 other sub paragraphs which were better characterised as evidence in support of the general allegation but were included as findings sought thus muddying the water. In relation to item 3 the findings sought were also diffused by 3 sub paragraphs and in relation to item 4 it was diffused by 8 sub paragraphs.

It would have been far easier for the judge to discern and determine the core facts had the schedule been clearer. I note that HHJ Meston QC describes the schedules as having helped to refocus on the detailed accounts of the surrounding events and circumstances which are of potential relevance to the assessment of credibility. Although it is easy with the benefit of hindsight, it seems to me that the factual allegations made in fact were:

Had this formulation been adopted it would have focused attention on the 2 specific dates and events which were the genesis of the allegations and a central (albeit not only) part of the evidence relevant to the determination of the allegations of sexual abuse. They were the seed from which all else grew and the 2 identifiable occasions, which were specifically alleged to demonstrate sexual abuse and indeed the most powerful identifiable dates on which sexual abuse was said to have occurred. In those circumstances it would inevitably have led the parties and the judge to consider those events in detail alongside the later evidence and would inevitably have led the judge to specifically determine what occurred on 15 November and 13 December.

The remainder of the schedules were by and large relevant to credibility which was important but not to the extent of obscuring the central facts which needed determining. It is certainly right that the judge did not make express findings on those

Although I have focused upon the central allegations it is noteworthy that the mother's schedule contained a total of 8 allegations with numerous sub- allegations spread over some 14 pages and the father's schedule of findings contained some 40+ findings sought spread over 17 pages. Most of those were not what most lawyers would recognise as facts requiring to be found to determine a child arrangements application. Some were evidential matters which could probably have formed part of the response to the mother's Scott schedule and many related to the mother's credibility. Some might have been formulated along the lines of ’the mother has been obstructive in respect of the child and father spending time with each other and has not supported the relationship’

It is hard to avoid the conclusion that the overloading of the respective schedules contributed to a situation where there was too much focus on what the child had said in May 2017 and insufficient focus both on the 2 identifiable events which were said to be the most powerful examples of sexual abuse and all the contextual evidence about what the child had said and done thereafter and which had contributed to the conclusion in January 2017 that sexual abuse had not occurred.

It is imperative in fact-finding exercises that the lawyers and judges case managing identify the central facts on which the court needs to rule. This ought to be done at FHDRA stage or otherwise prior to the commencement of the final hearing. Scott schedules can be an invaluable tool in assisting in the process of determining contested facts. However when they are imprecise or overloaded or mix ‘facts’ with evidence they can become a distraction and run the risk of diverging attention away from rather than upon the central facts. If a schedule is not appropriate one of the first steps that might be necessary at a fact-finding hearing will be to concentrate the minds of those involved in accurately identifying and reducing to writing the key facts which the judge is to rule upon.

At paragraph 92 the judge drew the threads together saying:

“Apart from the different view of the parties and their evidence which I have reached in this hearing, I have to consider the weight to be given to the evidence of what [the child] said in May 2017. When seeking a further hearing counsel for the mother posed the question:” can this court say that had this ABE interview been conducted and available in 2016 that it would have reached the same conclusions?”. My conclusion is that, on an overall consideration of all the evidence, including that of Ms Taylor and of the ABE interview and what preceded it, the evidence of what [the child] said in May 2017 is both credible and reliable. [The child] was describing an experience that was for her a painful reality. Such evidence justifies and requires revision of the earlier findings.

I do not consider that importing into the final conclusion on the fact-finding a question posed at the hearing to determine whether the fact-finding should be reopened was helpful. It has a tendency to suggest that the process which is now being undertaken is whether adding into the scales the additional evidence tips the balance the other way. That it seems to me risks both compartmentalisation and an undue and inappropriate focus on only those new pieces of evidence. The process must involve an overarching consideration of all of the evidence and how each interrelates with the other. Thus what took place in April and May 2017 and the judge’s views on credibility had to be woven into the overall evidential picture to create a new one rather than putting the picture from January 2017 and the picture from January 2018 alongside each other. Whilst it was open to the judge to interpret the ABE interview as demonstrating a child describing an experience that was a painful reality that conclusion could only be a reliable one if it was plainly set against the backdrop of an appropriately detailed analysis of the path to ABE. Whilst the weight that the judge placed on the ABE may not be in the realms of that which the Court of Appeal criticised in Re J (above) nor based on the presentation alone I am satisfied that because of the flawed analysis of the context in which the April/May 2017 evidence had to be assessed and the absence of focus on the 2 anchor points of 15 November 2015 and 13 December 2015 that paragraph 92 is ultimately a flawed one. Too much weight is placed on the evidence of the child when such weight could not properly be attributed to it without the detailed contextual analysis I have referred to.

I am therefore satisfied that Ms Hendry has established grounds 1 and 2 of the grounds of appeal and that the decision reached was wrong and that this appeal must therefore be allowed. The judgment does not demonstrate the application of the principles relating to allegations of sexual abuse from young children and in particular does not demonstrate the detailed contextual analysis that was required in this highly complex case. Although the allegations are not in themselves unusual or difficult the surrounding penumbra of events and the nature of the litigation made it a complex case. Further the absence of findings on two anchor point events add further substance to the appeal. They led to a situation where undue focus was placed on the recent allegations and weight was placed on them which they could not properly bear. Ground 3 is not made out but credibility will be at large at the remitted hearing.

Having regard to the nature of ground 1 and 2(i) and my findings on them I do not consider that any legitimate criticism can be made of the appellant’s legal team for not seeking further clarification from HHJ Meston QC. He dealt rapidly with the preliminary points raised and permission to appeal and before Ms Hendry had received Ms Branigan’s input. In the context of the criticism of a wholesale failure to analyse the context of the April/May 2017 evidence I do not think it could sensibly have been the subject of such a request. Still less would it be appropriate now.

Returning to the fact that the Guardian played no role in this complex appeal I would observe that a child is made a party to private law proceedings of this sort because the court has considered it is in their best interests to be a party. I’m afraid I do not follow why it would be considered that it was not in the child’s best interests for her Guardian and lawyers to play a role in an appeal in such a critically important matter concerning the child. Assuming (as is the case in this appeal) that the Guardian is taking a neutral position and that they participated at the first instance hearing, is it

It is not necessary for me to understand or explain how a flawed judgment came about. Perhaps there were many contributing factors including the over-burdened Scott Schedule, lack of time, the inability to complete the case within its time estimate and the delay in delivery of the judgment.

The result of the appeal being allowed has to be that the matter is remitted for further hearing. I do not consider that I am in a position to determine that the evidence from the child from April/May 2017 is so demonstrably unreliable that findings could not be made in reliance upon it. That with respect to Ms Hendry is to invite me to commit the very error that forms the basis of this successful appeal. First of all the reliability of the evidence has to be viewed in the context of how it came into existence (i.e. the Re E approach) but also it has to be placed in the overall evidential landscape. This is not comparable to Re J. It is therefore with considerable regret that I conclude the evidence must be heard again. That will mean that some 3 ½ years have passed since the events of November and December 2015 and still no conclusive answer is available and still the parties and most particularly the child are unable to progress their lives. The cost both financial and emotional cannot be underestimated but I see no alternative. All matters relating to the sexual abuse allegations will be at large at the remitted hearing. I consider that the remitted hearing should be conducted by a Judge of High Court level and I have provisionally identified a 2 week window before a Deputy High Court Judge commencing on 8 July. The time estimate for the hearing will need to be considered but I very much doubt it could be dealt with in less than 7 days. The matter will have to be listed for a PTR before the allocated judge.