England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM CANTERBURY COUNTY COURT
(HIS HONOUR JUDGE MURDOCH QC)

		Royal Courts of Justice Strand, London, WC2A 2LL
		12th August 2010

Lord Justice Hughes:

1. At a fact-finding hearing HHJ Murdoch QC found in the course of a long detailed judgment that the applicant father had been responsible for sexually abusive behaviour towards three children, of one of whom he was the father. The other two were the older children of his then partner. Father, whose case has been thoughtfully and helpfully presented by Mr Fuller, seeks permission to appeal.
2. There were five children in the family: a boy, A, now ten; a girl, S, now eight; a girl, K, now six; a boy, KY, now five but at the material time three; and a little boy, M, now four. They had between them three fathers and this applicant, who is the father of the last two to be born. Father had met mother's father some time in about 2003 or 2004, and he lived with mother and the children from about early 2004 when he was released from prison until May 2008 when he received a further sentence, so for a period of about four years or a little longer.
3. The children were taken into care in September 2008, in other words some months after this father had left. The cause of that at the time was concerns about neglect by mother and the conditions in the home and there were then no allegations of sexual maltreatment. However, from a time very soon after they were placed elsewhere some of the children began to display strong sexualised behaviour and to speak openly about sexual practices and at various stages assertions were made by them, principally in the first instance to their foster carers or, in the case of K, to her maternal grandmother with whom she was living, about what some of the men in the family and indeed for that matter mother had done in the past. The eventual outcome of that was the hearing before HHJ Murdoch and what is undoubtedly a long and careful judgment running to 180 paragraphs. He had heard 24 witnesses and the hearing had taken some little time. He found that this father had anally abused the eldest boy, A, and got A to lick his, the father's, penis; pushed his penis into K's genital area when she lay on her front in such a manner as to cause her to bleed and also engaged in other sexual behaviour with her; and thirdly, that in relation to the little boy, KY, he had put his penis on numerous occasions into his mouth, proceeding to ejaculation, and had licked the little boy's penis and penetrated his anus at least in part.
4. There was medical evidence in relation to A which Mr Fuller realistically accepts demonstrated that he had been anally abused by somebody at some time, but of course medical evidence by itself does not say who or when. In relation to the other children the medical evidence was inconsequential or neutral. Accordingly a great deal depended -- indeed nearly everything depended -- on what the various children had said, but also upon the combination of what they had said. They had said it in oft repeated conversations with their carers after removal from home, and in relation to the principal children involved they had also been interviewed under the "Achieving Best Evidence" principle in videoed interviews which the judge was able to watch and of which he, of course, had transcripts.
5. I hope Mr Fuller will forgive me for summarising what he has very fully set out. In substance his complaint is that this was all potentially worrying evidence; it was all hearsay of one sort or another; its sources were disturbed children; one of the children, the little boy KY, was very young, only three when the assertions had been made, and he was speaking of events which included those just before he was three. Mr Fuller's careful skeleton argument properly draws attention to the difficulties which hearsay evidence inevitably has. If he will allow me to say so, he overstates it in asserting in writing (although not before me this morning) that there is an "inherent unfairness" in the admission of such evidence. There is not, but it does need approaching with care. He also referred in writing, but not before me this morning, to the recent decision of the Supreme Court in W (Children) [2010] UKFC 12, in which Baroness Hale in particular giving the judgment of the court considered carefully the impact of the potential weaknesses of hearsay evidence upon the question of whether and when child complainants ought to be expected to give oral evidence and be subject to questioning in court. There the child in question was a 14-year-old girl. Whilst I am grateful to the reference to W (Children), whatever it may say about a necessary change in practice in relation to the starting point in relation to children of that age, I have no doubt at all that there would never have been and should not be even now any question of any of these children being expected to give oral evidence, at least in a family court. Indeed elsewhere the criminal courts have had to consider on numerous occasions the real difficulties which arise where in criminal cases young children have to give evidence, and it is quite apparent, for example from R v Barker [2010] EWCA Crim 4, that the criminal courts as well as the family courts need to adjust to recognise the profound limitations that court proceedings and conventional cross examination have in relation to very young children.
6. However, all that on one side, there remains Mr Fuller's core submission. First he points out that there was inherent weakness in some of the hearsay; that the initial assertions of the children came in conversations with unprofessional, unskilled listeners, that is to say, foster carers and the grandmother, and were in some cases, but not all, open to the possibility that they had been affected by the asking of leading questions. The ABE interviews had not meticulously followed the procedure laid down, and in the case certainly of A there were far too many of them.
7. All those things however the judge plainly recognised and he drew attention to them at different points in his judgment. Wherever there were leading questions he identified them and in due course he gave himself an impeccable self direction in relation to hearsay evidence at paragraph 147 of his judgment.
8. Mr Fuller goes on to make very delicately the suggestion that, although the judge may have said that, in practice he did not achieve it, and the reasons why he says that are really these. First, the evidence that this father had abused the eldest boy, A, came, so far as identification evidence was concerned, only from A himself. A's interviews demonstrated that he had reached the stage where he was relishing the attention and was saying things which were untrue. The judge directed himself that it would be unwise to place too much reliance upon him. The only additional evidence, says Mr Fuller, were the assertions of the little girl, K, and the little boy, KY, both of whom identified father in extremely graphic terms, which I shall not repeat in public, as having abused them. Mr Fuller is of course quite right to say that neither K nor KY asserted that they had seen father abusing A, but that does not mean that their evidence was not evidence which the judge was entitled to take into account. On the contrary, he undoubtedly was. There was plain evidence that, however unreliable a witness A himself might be, someone had buggered him. A himself did say it was this father. That by itself might not have been enough, but when the judge was confronted with very graphic evidence from K and KY, the half siblings, plainly identifying father as having done similar things to them, he was entitled to say that between them those various pieces of evidence added up to make it more likely than not that father had done what was alleged, and that is the process of reasoning that he adopted. He also saw father himself and I am afraid did not believe him.
9. Mr Fuller asks me to say that there is an arguable basis for appeal on the ground that the judge did not sufficiently direct himself as to the fact that K's disclosures came late and KY's disclosures, though they did not come late, came from a child of only three. With great respect to the persuasiveness with which that argument is advanced, it is simply out of the question that the judge was not firmly alive to those considerations. Nearly everything that had passed through the judge's mind is in his very long judgment. It may be that those particular factors are not spelled out separately but that cannot found a basis for suggesting that the judge's conclusions are flawed for that reason.
10. Mr Fuller submits that K's description of being penetrated from behind when she was lying on the bed was a description which was implausible because she would not have been able to see. I am afraid I take the view that the judge was more than entitled to conclude that she was able to say what she had felt and that that was sufficient.
11. I return to the proposition that, particularly in the case of K and KY, their descriptions of what this father had done were particularly graphic and the judge was entitled, approaching it carefully as he did, to rely on it. It was not arguably necessary for him to spell out in any greater detail than he did why those various pieces of evidence between them persuaded him that it was more likely than not that the father had done what he had. The assessment of evidence is not a scientific process; it is one for experienced judgment. This evidence received experienced and careful assessment and, with the best will in the world, any attempt to bring it to this court would really be no more than an attempt to challenge the judge's assessment of the evidence. It was for him, he was entitled to arrive at the conclusions he did, and the contrary, I am afraid, despite Mr Fuller's best efforts, simply is not arguable.
12. For those reasons I am afraid that this application must be refused.

Order: Application refused