England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM BRIGHTON COUNTY COURT
(HER HONOUR JUDGE NORRIE)

		Royal Courts of Justice Strand, London, WC2A 2LL
		21st March 2012

Lord Justice Thorpe:

1. This appeal concerns a family of four: mother, 12 year old daughter, stepfather to that daughter and then a much younger child born to the couple. The local authority became involved in 2010 when the 12-year-old, who I hereafter refer to as K, started saying things at school which worried her teachers. Accordingly a section 47 risk assessment was ordered and then a social worker appointed.
2. On 1 June 2010 K, in conversation with that social worker, for the first time asserted that she had been touched sexually by her stepfather. She had previously made an assertion that he had punched her in the ribs, albeit he had perhaps not intended that she should be the recipient of the blow. She had also asserted previously that her stepfather had given her mother a black eye.
3. So inevitably the suggestion that she had been the victim of sexual touching led to the involvement of the police and an ABE interview. Unfortunately there seems to be an unexplained delay until on 6 October 2010 a case conference was convened and the two children were made the subject of child protection plans.
4. The investigation within public law family proceedings as to what had been going on in the family culminated in a trial before HHJ Norrie in the Brighton County Court. She heard evidence from social workers, from the relevant police officer and from K's mother and stepfather and she gave judgment on 15 July 2011 in which she essentially found for the local authority and rejected the case advanced by the parents.
5. The outstanding feature of that judgment is that it does not mention, let alone weigh critically, the evidence of the respondent parents, but only the evidence of the local authority. Accordingly a communication was sent to the judge pointing out the practice approved by this court in the case of Re T (Contact: Alienation) [2003] 1 FLR 531 and requiring the judge to deal with points of crucial importance that were seemingly overlooked. That led to the presentation in November of an addition to judgment which the judge labelled "Afterword". It did recite in summary form the nature of the evidence given by the stepfather but without any sort of critical analysis and without any sort of summary or analysis of the evidence of the mother.
6. An Appellant's Notice had been filed in this court on 5 August 2011 and, following the delivery of the Afterword, it was amended on 15 November by Ms Kate Branigan QC who leads Ms Kelly Ward for the stepfather. Unfortunately the urgent nature of the application was not drawn to the attention of the office, and it was not until 19 January that McFarlane LJ considered the papers and granted permission to appeal.
7. This is a matter of real concern to me because, following the child's assertion on 1 June, the stepfather immediately left the family home in order to safeguard the possibility that the local authority might seek to remove the children and he has been out of the family having supervised contact ever since, and ever since is now something approaching two years.
8. We have discovered that on 8 August, on the back of the judge's positive finding, a risk assessment was ordered. It was swiftly concluded. Then there has been a psychologist's report which was made available in November. That recommended therapy for mother and K. There was a supplement to the risk assessment filed on 5 January which raised the possibility of therapy for the stepfather and now, as far as the court calendar is concerned, there is only a half-hour appointment for review on 18 April.
9. The attack on the judgment below is forceful and reveals what in my judgment are fatal flaws. It is to be emphasised that there is no evidence that the stepfather has abused his stepdaughter sexually other than in the words of the child. It is the fact that allegations of the child in relation to domestic violence within the home and violence directed against herself have been retracted. It is the fact that allegations of sexual victimisation by two boys at her school have been investigated by the police and retracted. It is the fact that she has partially retracted the allegations of sexual misconduct by her stepfather. It is the fact that she has on many instances told what are labelled "lies", which I would prefer to label "fantasies". Indeed the judge records some ten or eleven instances of this child fantasising, for instance saying at school that her sister has done something when she has not got a sister, that her father is dead when he is not. Embroidery of that sort seems to have been her style and character ever since she was a young child.
10. So on any view the positive case against the stepfather was towards the point of being unsustainable, and accordingly it was particularly important that the judge should focus closely on the evidence of both the mother and the stepfather and deal with it fully and critically in judgment. Her failure to deal with it at all is such a fundamental failing that her conclusion and order is simply in my view unsustainable. She furthermore has fallen into error in paragraph 43 of her judgment when she finds proved that stepfather said that he would not touch K anymore because if he did she would call social services. Of course, had he said that, it would be indicative of guilt, but in reality the evidence was that K had said that she would be safe with her stepfather because if he endeavoured to touch her she would call in social services.
11. I do not consider that the judge's Afterword begins to shore up the deficiencies in her judgment. And so, for all those reasons, I would simply allow the appeal and set aside the findings made by the judge, particularly in paragraph j) of the schedule that she was asked to approve.

Lord Justice Etherton :

12. I agree.
13. The judge was concerned to determine the truth of allegations of abuse of a sexual nature. Such allegations are always grave. If proved, they always carry significant ramifications for everyone concerned. In order to carry out her task the judge was required to conduct the investigation and set out her conclusions with a most detailed and conscientious examination of all the evidence. The judge appreciated that that was her task, for she said in paragraph 16 of her judgment that she had to consider the quality of the evidence and in particular to scrutinise the context in which K gave her accounts and her credibility, looking as to whether there are any reasons why she would invent such a story and the context in which she made a partial retraction of the original account. The judge also said, referring to observations in Re N, that in exercising the jurisdiction in this case the court would be very slow indeed to make a finding of fact adverse to a parent if the only material before it had been uncontested by cross-examination.
14. That was indeed the position here because K was not subject to any cross-examination. The need for a particularly conscientious and detailed examination of all the evidence was further required or reinforced in this case because of a pattern of persistent lies by K in relation to her stepfather and in particular in relation to allegations of domestic violence. Those lies severely undermined her credibility.
15. The judge did not, in my judgment carry out that task that was required of her. In particular she did not address in a conscientious and detailed way the evidence of the stepfather. There was no attempt to address his evidence in the initial judgment of the judge. The judge sought to correct that oversight in what she described as an "afterword". That "afterword", however, did not address all the points that were made on behalf of the stepfather in relation to particular incidents. There are three particular matters in his oral evidence which were not addressed by the judge at all in her judgment.
16. In his evidence in chief the stepfather was asked about an incident in which K had described abusive activity by him in her bedroom. In that account she referred to her brother walking into the room. The stepfather said that L could not walk and could not get out of his cot at the time that K said that it happened. That answer was not the subject of cross-examination at all and so effectively was conceded. There is no reference to that in the judge's judgment.
17. There was another incident which K alleged took place on the sofa downstairs. In his examination in chief the stepfather said that K never fell asleep on the sofa downstairs, as she had alleged in relation to that particular incident. When cross-examined on that point he reiterated that she did not fall asleep there except, to his knowledge, only on one occasion when there had been a sleepover the night before and she had been up really late with her friends. Those answers were not referred to at all by the judge in her judgment.
18. Finally, in cross-examination it was put to him that K's evidence had been that she stopped wearing a nightie and switched over to pyjamas, although she preferred to wear nighties, because she was trying to protect herself against him. The evidence of the stepfather, and indeed I understand of the mother, was that it was quite untrue that the switch to pyjamas was as a result of any request by K. Their evidence was that the mother and the stepfather initiated the change and purchased the pyjamas for her. Those answers were not referred to by the judge at all.
19. It seems to me that the judge's failure to refer to those particular matters is indicative of a general approach to the evidence of the stepfather, that is to say failing to give it any significant weight whatsoever or to test K's credibility against those answers which he gave, which as I have said must be set against the background of a persistent history of fabrication by K in relation to other important matters concerning her stepfather.
20. Another matter which was, in my judgment, inadequately addressed by the judge concerned accusations that had been made by K about an incident in a park where, she said, two young boys had abused her. The police investigated this matter and decided to take it no further because the view of the investigating officer was that K's allegations were flawed by inconsistencies. The judge dealt with this matter briefly in paragraph 32 of her judgment when she said that there were allegations of an assault by two boys at the school, which was another allegation of a sexual nature which the police investigated and described as "confusing". The significance of that allegation by K was that this was an allegation of a sexual nature as opposed to other allegations which she has subsequently withdrawn concerning domestic violence. To describe the allegation as confusing underplays its significance as containing significant inconsistencies.
21. Overall, I am quite satisfied that it is impossible to uphold this judgment of the judge in view of the failure properly to address and assess the evidence of the stepfather and to weigh against that the evidence of K, particularly in the light of her manifest lack of credibility in relation to other allegations she has made and then withdrawn.
22. As a general matter, it seems to me that one of the deficiencies in the way the matter was dealt with before the judge is that there was never put to the stepfather each of the specific incidents of alleged abuse on which the local authority relied. The cross-examination effectively can be broken down into three parts. There were questions about K's evidence concerning switching over to pyjamas as a means of protecting herself. I have dealt with that. Secondly, there was an alleged incident when she said she had fallen asleep on the sofa and had been abused. I have dealt with that as well. It was then put to the stepfather that there was an incident in the sitting room in front of the television when K might have got the wrong end of the stick as the stepfather reached over to pick up something and accidentally touched her leg. The stepfather said that never not happened. Then, finally, it was put to the stepfather globally that his evidence was that K had just been completely fabricating everything she had said about the incidents from start to finish. He answered that affirmatively. In my judgment, it would have been right and proper, in a case of this kind where there was a requirement for a detailed and conscientious assessment of all the evidence in relation to each specific allegation, for each specific allegation to be put to the witness so that there was a possibility of refuting it in whole or in part or at any event providing more details.
23. Once the judgment is set aside, for the reasons that I have mentioned, it is impossible to say, looking at the evidence as a whole and particularly the lack of credibility of K on so many issues, that the burden of proof was discharged in this case.

Lord Justice Lewison:

24. I agree with both judgments.

Order: Appeal allowed