England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE FAMILY COURT SITTING AT CARLISLE
HIS HONOUR JUDGE LANCASTER
CA13P00105

		Royal Courts of Justice Strand, London, WC2A 2LL
		30/07/2015

Lady Justice Black:

1. This is an appeal by a father against a factual finding made by His Honour Judge Lancaster on 7 May 2014 in private law proceedings in relation to his daughter, J. The other parties to the proceedings are J's mother and J herself, who has a children's guardian and legal representation.
2. J was born in January 2008. At the time of the events with which Judge Lancaster was concerned, which took place in March 2013, she was five years old. The judge found that, whilst she was staying with the father for contact from Thursday 14 March 2013 until the morning of Sunday 17 March 2013, the father caused an injury to J's vulva by rubbing it sexually. It is against that finding that the father appeals.
3. The guardian adopted a neutral position in relation to the factual dispute before Judge Lancaster and her position was similar in relation to the appeal. There was no attendance at the appeal hearing on behalf of J, but a helpful skeleton argument was provided by Ms Moody, counsel for the child.
4. The mother was represented by counsel at first instance but she has made no contribution at all to the appeal process. Mr Gray, who represents the father, told us that she had been spoken to and had said that she intended to try to get funds for legal representation for the appeal. However, it seems that nothing came of this and she has not sought to participate in person. Only Mr Gray appeared in front of us at the appeal hearing therefore. We were much assisted by his very fair presentation of his arguments but, of course, it was our task to scrutinise them without the usual assistance of other advocates.
5. I should say at the outset that it is not at all easy to persuade the Court of Appeal to interfere with findings of fact. There is no need for me to rehearse the many authorities which underline this and explain why it should be. It is something I have kept well in mind as I have considered the grounds of appeal in this case.
6. In order to consider the merits of that appeal, it is necessary to look closely at what happened in mid-March 2013 and at the medical evidence. First, however, I will set out a little of the context.

Context

7. The father and mother lived together between 2005 and 2011. When they separated, J continued living with the mother. There were difficulties over contact. The father was granted an interim contact order in December 2011 and a final contact order was made in April 2012, providing for staying contact each weekend from after school on Thursday until Sunday morning. This took place at the paternal grandmother's house where the father was living. There were two bedrooms and the father and J had bunk beds in one of them.
8. The local authority's children's services were involved because of the difficult relationship between the mother and her then partner, B. However, their core assessment, completed in November 2012, recommended no further action.
9. The staff at J's school observed her to be unsettled and less confident from approximately November 2012. They set out their observations in a letter dated 22 October 2013 (Appeal Bundle page 261). The information they provided does not point unequivocally to any particular cause for changes that they observed in J's behaviour. From approximately November 2012, J was said to have become more unsettled in the mornings and "staff noticed that particularly on Thursdays she did not want to let her mother go and would sometimes get upset before she attended Daddy's house for the weekend". However, the judge recorded (§5 of the judgment) that one of J's teachers said that she was also reluctant to let her father go on Friday when he brought her to school. The school reported that in the spring term of 2013, J began to complain of a sore tummy regularly, went constantly to the toilet, and was seen playing with her private parts, which she had not done before. They also said, however, that "staff did not notice that she was really withdrawn and clingy until after J had been to the doctors and was off school for a period of time" and that when she returned to school "after the holidays", she had become very withdrawn and did not want to socialise with her peers. Although not dated in the school's letter, this reference to the doctors may well be a reference to the investigation following the events of the weekend of 14 to 17 March 2013. It was said that towards the end of the summer term, matters improved, although J was still reluctant to let her mother go in the morning on occasions. By the new school year, she was happy to come to school.
10. According to the mother, she also noticed some changes in J's behaviour which worried her, in her case after Christmas 2012 (§5 of the judgment).
11. There is evidence that matters were not easy between the father and the maternal family at around the time of J's birthday in late January 2013 and during February. A series of text messages between the mother and the father on 21 February 2013 (page 270 et seq) capture the friction between them about telephone calls between J and her mother during her stays with the father.
12. On 5 March 2013, the father applied for residence of J citing, amongst other things, the mother's relationship with B and contact difficulties as reasons. The mother's evidence was that she had separated from B and formed a new relationship with D, whom she had known for a long time, beginning with a casual relationship in January 2013 which then developed.

The events of 17 March 2013 onwards

13. The father returned J to her maternal grandmother after weekend staying contact at about 10 a.m. on Sunday 17 March 2013. The grandmother took her back to the mother at about noon that day. Both the mother and grandmother said that they noticed she was quiet and the mother thought she looked tired and did not seem herself. The mother said her routine would have been to bath J on the Sunday although she could not recall doing so on that day. The judge seems to have proceeded on the basis that J was indeed bathed on the Sunday (see §42). J made no complaints to her mother that day and nor did the mother notice any unusual physical signs on her.
14. The next day, Monday 18 March 2013, J went to school as usual. She was collected by the mother and grandmother. The grandmother thought that the mother telephoned her that evening and told her that J was scratching and itching and sore between her legs but the mother did not recall such a conversation. The judge did not make a finding as to whether it took place. However at §54, in his assessment of the witnesses, he concluded that the mother was "in most respects…a satisfactory witness" whereas he said of the evidence of the grandmother, who at the time of the events in question had not slept for about three days whilst caring for her dying mother, that it was not as reliable as the mother's and that she had trouble remembering the detail. I think, in the circumstances, it should be assumed that the judge proceeded on the basis that there was no phone call from the mother and that there was no evidence that J had any symptoms on the Monday.
15. On Tuesday 19 March 2013, the grandmother collected J from school. She recalled that J came out scratching her legs, saying that her tights were itchy. She wanted to take them off and when this was done, the grandmother noticed that, as the judge put it, "the top of J's legs were itching". After collecting the mother from work, the grandmother took her and J to a chemist's where they bought E45 cream for J's itchy leg.
16. I will look in a moment at the sequence of events for the rest of that day. Of central importance is that, at some point in the evening, J was given a bath/shower, after which she began to cry and to complain to the mother that she was sore and she was holding her vaginal area. When the mother investigated, she saw physical signs which she thought indicated a sexual injury. The judge described what happened next as follows:

"13. ….. [The mother] said that J did not say anything to her. She asked J if she was okay and if it was sore? When she asked J what had happened, and who did this, J gave her no answer. She then said to J, 'Sit on nanna's knee and tell nanna'."

J was then taken to the grandmother who pretended to dry her and saw the signs herself. The judge continued to describe what happened in these terms:

"14. …. [The grandmother] said [J] looked as though she had been interfered with. She said that she sat J on her knee and she asked her it she was okay.

15. [The grandmother] said that she asked J, 'Is there anything wrong?' She said that she then told J, 'You can talk to me. You will not get into trouble. What has happened? You have not done anything wrong'. [The grandmother] then recalled that J said to her, 'Daddy has been playing with me down there'. [The grandmother] said at this point she herself looked at [the mother] and nodded. In her opinion it looked as though J had been interfered with."

17. There were inconsistencies in the evidence of the mother and grandmother and particular uncertainty as to when it was that J was given a bath/shower. Both the mother and the grandmother said that J went to her trampolining session that evening; that took place regularly between 6 p.m. and 7 p.m.. There seemed to be some doubt as to whether her bath was before or after the trampolining. The judge found that it was more probable than not that cream was applied to J's legs or thighs before trampolining and that the mother may well have wet her thighs to cool them before the cream was applied, but that she was not bathed or showered until after trampolining.
18. The difficulty with that finding is that after the bath and the discovery of the physical signs on J, the mother telephoned the general practitioner's surgery and spoke to the doctor, making an appointment for J to be seen next day. The normal closing time for the telephone lines at the surgery was said to be 6.30 p.m.. It might be thought, therefore, that if J was bathed after trampolining, the telephone lines would already have been closed by then. Nevertheless, the judge found it more likely than not that the call took place after trampolining and after the bath. He did not explain explicitly how he reconciled the conflicting evidence. Perhaps the nearest that he got was at §16 of his judgment where he said, "The evidence about the time of the call [to the doctor] in my judgment is unclear".
19. The following day, Wednesday 20 March, before taking J to the doctor, the mother asked her friend to have a look at J, which she did. The friend also asked J what happened and she said "My daddy hurt me". J was then seen by a general practitioner. The judge set out at §22 of his judgment the doctor's evidence about this. She saw what she thought was petechial bruising. When she invited J to say how she came to be sore there, J shook her head and was not willing to tell. The doctor asked her to whisper it to her grandmother and J did, the grandmother relaying that she said, "Daddy played with me".
20. The matter was referred to children's services. Two police officers and a social worker visited J that afternoon and an initial account was taken from her. The judge said that the police officer who asked the questions, "accepted that J clammed up initially and was reluctant to talk of anything relating to her father" (§23). J was then asked some direct questions. There is no need to recount here the detail of what she said, but amongst her answers was the response (when asked why her bum might be sore) that "Dad was hurting me" and (when asked to recall what she said to the doctor) that "He was playing with my bits". This was said to be with his hand.
21. On Friday 22 March 2013, J was examined by Dr Waters. I will return to that when I deal with the medical evidence in a later section of this judgment.
22. On Monday 25 March 2013, there was an "achieving best evidence" interview when J was asked questions again by a police officer and a social worker. The judge set out quite a lot of detail of the interview in his judgment (§27 et seq). To begin with, J denied that anything made her sad when she was at daddy's house. It was not until she was prompted to remember what she had said the other day about what happens with daddy, that she said anything of note. The judge, who had watched the video recording of the interview as well as reading the transcript, found that at times J was reluctant to answer and she was easily distracted but he reminded himself that she was only five years old and thought she was probably shy. He found (§33) that there was a degree of consistency between what she said then and what she said in the earlier interview in that in both she said that her father hurt her, that he was playing with her bits, that he used his hand and that it happened a number of times. She was not consistent as to where it occurred. When she was asked to give more detail, she did not do so; she repeatedly said that she had to think.

Expert medical examinations

23. J was examined by Dr Waters on Friday 22 March 2013 and again, by way of follow up, in April 2013. Dr Waters is a sexual offences examiner. She had had quite varied experience before specialising in genito-urinary medicine in 2011. At the time of the examination, she was "relatively new to doing paediatric sexual assault examinations" (see page 670F in the transcript of her evidence). She was not prepared to class herself as an expert witness, classing herself rather as a "professional witness" of fact (see, for example, the conclusion of her witness statement at page 186 and the transcript of her evidence at page 672). She described various features seen in the examination, including what she labelled on a diagram as one "circular abrasion" and one "linear abrasion" (page 187).
24. Dr Waters advised that dermatological conditions needed to be excluded as a cause of her findings so an opinion was also obtained from Dr August. He is a consultant dermatologist with extensive experience of dermatology but no experience of child protection matters or in dealing with the aftermath of sexual abuse. When he first reported, on 23 December 2013, he had not had access to the video-recording of Dr Waters' examinations or seen J. He examined J himself during January 2014. When he commenced his oral evidence on 6 February 2014, however, he had still not seen the video-recording so his oral evidence was adjourned in order that he could view it. He did that with Dr Waters on 13 February 2014.
25. At the time of his first report, in December 2013, certain features recorded by Dr Waters caused Dr August to raise the possibility of J having a skin condition called lichen sclerosis et atrophicus (LSA). This is a chronic inflammatory condition of the dermal connective tissue which makes the affected skin sore, itchy and much more than normally vulnerable to trauma. At that stage, Dr August thought it unlikely that J had it, but when he examined J himself in January 2014, he found signs consistent with LSA.
26. Following their February meeting, at which they viewed the recording and discussed the case, a joint statement was prepared by Dr August and Dr Waters, dated 24 February 2014. Dr August then provided an updated report on 26 February 2014 in the light of what he had seen on the recording.
27. It was established that the signs found on J in March 2013 were mainly accounted for by LSA. However, the doctors were agreed that there was also a sensitive lesion which could only be an abrasion due to an injury. This was the circular lesion seen by Dr Waters; the linear lesion turned out to be a streak of purpura or petechial haemorrhage, probably (see Dr August in cross-examination page 524) from scratching. Dr August described the circular abrasion, in the same passage of his cross-examination, as oval shaped and approximately 7 millimetres by 10 millimetres in size. Dr Waters put it at "somewhere between half and one centimetre in diameter" (page 670). The issue was what had caused it.
28. Consideration was given to the possibility that it had been caused by J scratching. Early on in the process, in her police witness statement of 29 April 2013, Dr Waters commented on this possibility as follows:

"Abrasions are often the result of contact between the surface of the skin and a rough surface with sufficient force to cause trauma in the epidermis but not through it. They may also be caused by friction. Possible causes of genital abrasions include excoriation of itchy skin and trauma." (page 185)

29. Subsequently, responding (prior to Dr August's diagnosis of LSA in J) to written questions, Dr Waters said in a letter of 11 December 2013 (page 276) that the range of possible causes for the findings included genital touching by another person, and self-infliction through scratching due to itching which could be due to an underlying dermatological condition such as LSA
30. Dr August said in his report of 26 February 2014 that LSA:

"would in my view make the vulval area much more than normally vulnerable to trauma so that it would develop petechial haemorrhages or purpura from scratching or other trauma. These have probably been produced because J herself will say that she feels slightly itchy in the vulval area and scratches a little from time to time [sic]. However this must be minimal in extent and severity because her mother has not seen her do this." (page 370)

31. Dr August took the view that scratching was not the cause of J's abrasion and that is the view also set out in the doctors' joint statement (page 362 §3). Dr August said in his 26 February report that he had seen "a small number of other children with LSA of the vulva" and "a much larger number of mature women" (page 370). He said that his experience was that women and children with LSA "find the condition sore and, to a degree, itchy but do not excoriate the skin", and that patients "will tend to rub rather than cause an abrasion" (page 371). Indeed he went so far as to say that "[a]brasions and excoriations from the action of scratching do not occur" (page 371). Dr August and Dr Waters agreed that the creation of an abrasion such as J had would require "significant force applied to the skin tangentially, that is to say rubbing backwards or forwards or both" (page 363).
32. The question of causation was covered extensively in the doctors' oral evidence. They were less absolute in ruling out of the possibility of a scratch being the cause of the abrasion than they had been on paper. In evidence on 6 February 2014, counsel for the child put to Dr August the passage that I have quoted above from Dr Waters' police statement, including that possible causes of genital abrasions include excoriation of itchy skin and trauma. He agreed with it (page 378), though he said he would qualify it by saying that "an excoriation, which is the result of an abrasion [sic], is a relatively unusual finding in irritable itchy vulval disease" (my italics). He said that he suspected that a sufferer rubs the affected area rather than tearing at it with a fingernail. He was then asked:

"Q. You say it is more usual that a child in effect would rub. Are you saying that a child would never cause abrasions by fingernails in the genital area?

A. I can't say that, no, I think it is perfectly possible…." (my italics)

33. Shortly thereafter, Dr August was asked whether, leaving aside the swelling and bruising said to have been observed at home but not seen by the doctors, J's presentation was otherwise consistent with LSA. He replied:

"Yes, I think it is with one exception over which there has to be a small question mark, and that's the abrasion noted by Dr Waters. It's an unusual finding in LSA, in fact, I can hardly think of a patient who had that change. The changes are those of purpura, redness, and the whiteness which is the diagnostic feature of the disease. So to actually excoriate in such a way as to denude the surface of the skin is not really what happens in LSA, either child or adult, I don't think. It could happen but I think it's unlikely. So on the objective findings it's the one feature that causes me some concern as being outside the ordinary run of what's seen in this condition." (page 379)

34. When he resumed his evidence on 28 February 2014, Dr August said that LSA is an itchy complaint, sometimes "profoundly itchy" and he agreed that sufferers scratch themselves and that his reference to them rubbing did not rule out scratching as well (page 518/9). He commented that J would "probably have a scratch sometime [sic], perhaps at night if she is half asleep and warm in bed, that's when itching is often worse" (page 521). Dr August was under the impression, however, that no one had seen J appearing itchy or scratching before the examination by the general practitioner. This was not in accordance with the evidence as will be clear from the history I have set out above.
35. Dr August was asked in cross-examination by counsel for the father about the possible timing of the injury. Counsel put to the doctor that J was bathed by her mother on the Sunday night and nothing relevant to the injury came to the mother's attention during that process (page 531 et seq); it was made quite clear that no examination was carried out by the mother. Dr August responded:

"A. Nothing was seen on Sunday. But I think you would have expected there to be considering what was found later in the week –

Q. By Friday the 22^nd.

A. Yes. However we are dealing with family with no suspicions I suspect, to [inaudible], as opposed to was inspection made, we don't know. So I don't know what to make of those observations, except that they are not, they fly against what we've been saying earlier, and that is that there was an injury which has a history going back some time. If these sort of injuries had been found on Sunday, it would have all hung together better, but no injuries were actually noticed. Whether they weren't looked for or what I don't know."

36. The matter was taken up by counsel for the mother immediately thereafter (page 533). She put to Dr August:

"Q. ….the fact that it was not detected on the Sunday does not mean it was not there, does it?"

A. Correct.

Q. And if one is not looking for or given cause to internally or personally examine a child, it would not necessarily have been seen.

A. Absolutely, yes, you'd have to look for it.

37. Dr August went on to agree with counsel that it was necessary to be exceptionally careful in drawing inferences from the fact that the child had a bath on the Sunday night and the existence of the injury was not noticed. He was then asked questions about whether the child could have caused the injury herself. He said it was not a trivial injury and it would have hurt. He considered its size relative to a fingernail and said:

"So the width of that lesion is wide for a fingernail injury unless the whole of the fingernail did it, meaning that the fingertip was pressed in very firmly to do it. Again I do stress I'm getting slightly outside my field of expertise here, we are just trying to go along and see how such an injury could or could not have been done." (page 535)

38. He went on immediately afterwards to say that if the injury was caused by a fingernail, it had to be an adult-sized fingernail. Counsel asked him whether he agreed that a child who was rubbing themselves to the point of causing significant pain would stop. He said:

"Yes. With such an abrasion it's hard to see how any child could have done that to themselves in one go, and the pain afterwards. Moving the question on, what on earth itched so much that a gouge like that, because that is what there has been underneath that haemorrhagic scab that we saw on the video, how could that be? I think it's too wide, too deep and too much to be possibly self-inflicted by J herself…..And also the matter of general experience in LSA clinical work, you just do not see anything like this ever." (page 536)

39. He was asked whether, if abrasions such as this were caused by children rubbing themselves, they would not be seen fairly routinely in patients with LSA whereas he had not seen them. His answer reinforced that he was proceeding upon the basis that J had not been very itchy, as can be seen from the following extract from it:

"If this was all down to intense itchiness of the vulva I think J would have told us that, or her mother would have told us that, but also there would have been further lesions with a break in the skin."

40. When Dr Waters gave evidence, counsel for the child put to her the same passage from her earlier report that had been put to Dr August, about the possible causes of genital abrasions including excoriation of itchy skin and trauma. She said that she still considered that the cause could have been either of those. What emerged during her cross-examination was that she had deferred to Dr August in respect of the view expressed in their joint statement that J's abrasion would not have been caused by scratching, because he considered that the LSA was not of a severity to warrant scratching like that (see for example page 682 of the transcript of her evidence). She did appear to subscribe to the idea that J would stop scratching when she got pain, saying, at page 683D:

"J scratching wasn't the cause because she ….the degree of the condition wouldn't warrant her to scratch and she'd get pain and she'd stop"

However, a little later at page 683E, there was the following exchange:

"Q. Would it be more expectation that a child would continue to rub the area that is causing them so much pain?

A. I think if a child had an area that is painful I think their … I wouldn't necessarily that they would continue to scratch it, but they are aware of it and they are probably therefore drawn to it as an awareness. You know, poking maybe, you know, what's this. I mean I think we all do it. For example, if you have a wobbly tooth in your mouth you're subconsciously drawn to it and I suspect children work on the same ….." [sic]

41. Dr Waters' view was that the abrasion was a superficial injury, not going into the subcutaneous tissues, and involving scratching or rubbing rather than gouging, which was a term used by Dr August (see pages 673 and 686 of her evidence). She agreed that it could have been caused by a scratch of a nail (page 671). She was asked by counsel for the child whether it could have been caused by a child's nail and she said it was hard to comment but that it would depend on how much scratching there was. Returning to the subject during cross-examination by counsel for the father at page 677 and considering Dr August's reasoning that the lesion was too big to be caused by a child's fingernail, she said, "doesn't it depend a little on the length of the finger nails, the shape of the finger nails, and whether it is two fingers together?". Accordingly, there was not complete unanimity between Dr August and Dr Waters either about this or about the "gouge".
42. Dr Waters was asked about the timing of the injury by counsel for the father. It was put to her that if the first report of soreness was on the Tuesday 18 March 2013, it might be reasonable to assume that the abrasion was not there before then. She replied:

"If that's the bit that's giving her the soreness then if she only started to complain of soreness then, then that would seem logical."

She went on to say that from what happened during her examination, the only part of the area that actually seemed sore was the abrasion (page 680). When counsel for the mother reverted to the topic with her, she accepted that the child would not necessarily have experienced the same acute pain as she suffered during Dr Waters' examination if the area had not been touched. The final part of her evidence is, however, of importance. At the end of the mother's counsel's cross-examination she said (page 688):

"A……we don't know precisely when it happened but it may have become more sore, for example, when a scab formed over it and that got caught or rubbed or….

Q. Or even perhaps hot water in a bath?

A. Exactly. So it's difficult to be absolutely precise when it happened and when she complained of pain because of where it is, other frictional forces and the healing process."

The following exchange then took place in re-examination by the child's counsel (page 689):

"Q. If there is an abrasion like the one that you observed if J was in the bath –

A. It would probably sting.

Q. It would sting because we know from the mother's evidence that the first report of J being in pain to the extent that she was crying was as she was taken out of the bath.

A. Yes, it would sting."

The judge's approach to his findings

43. The judge carefully set out in his judgment the evidence he had heard from the doctors and lay witnesses as well as extracts from J's interviews. He rejected the suggestion that the mother had deliberately coached J into making false allegations against the father, setting out reasons why he did not consider this an explanation for what J said (§35 and 36). He recognised, however, that it was possible that J had made false allegations in order to please her mother by giving the answer she thought she wanted (§36) although his final conclusions (see below) show that he did not find this to be the case. He considered the lack of detail in J's account and decided that it would be expecting too much from a five year old in the situation she was in to give further detail as an older child or an adult might (§34).
44. The judge considered the credibility of the mother, the father and the grandmother. I have already said that he found the mother in most respects a satisfactory witness. He found that she was doing her best to describe what she saw when she lifted J out of the bath on the Tuesday evening (§54). This contrasted, as I have said, with his view that the grandmother was not as reliable as a witness and had trouble remembering detail (ibid).
45. The judge did not find the father a satisfactory witness (§55). He said:

"Although his reaction when arrested is compelling, he became upset and needed to sit down and said 'Oh my God, it is my daughter', and in interview he was revolted and cried, I did not find these to be genuine reactions on his part. He was very sure of himself when he gave evidence. He was evasive at times. He was anxious to portray himself in a positive light and did not make obvious concessions, for example, when types of sexual activity were explored with him, or that J described his home in the ABE interview. He also lied about his drug use. He wanted to paint himself as squeaky clean in my judgment and lay all the blame at [the mother's] door. He sought to deflect attention from himself and portrayed [the mother] in a bad light, for example when he said that she was drinking in a pub on the Tuesday night and had not gone to trampolining."

It is a little confusing for the judge to have described the father's reaction on arrest as "compelling" but then to have dismissed it as not genuine; this passage would have benefited from further explanation by the judge.

46. The judge's conclusions are set out in §§56 and 57 of the judgment where he said:

"56. The question for me is can I be satisfied on the balance of probability that J has given a credible and accurate account of what happened to her? The medical evidence in the case in my judgment was clear. The abrasion to the right side of the vulva was not a consequence of LSA, and self infliction by J is not an explanation. It would have been painful for J to have scratched herself and she would have stopped. The abrasion was caused by significant force and tangential rubbing. The epidermal layer of the skin had gone. I find it was probably not caused by a child's fingernail but by an adult.

57. As to the timing, I find it was probably caused during the period that J was with her father. J complained of stinging in the bath on the Tuesday night. It is probable that the abrasion was worse then. By the Friday when Dr Waters examined J it was more sore. I find on balance that J gave a credible account of what happened to her, namely that her father had caused an injury to her vulva by rubbing it sexually. This probably occurred at some time during the period that she was with her father from 14 to 17 March 2013. I reject the allegation that [the mother] had either coaxed or encouraged J to make false allegations or created an atmosphere where J herself felt that she had to lie to appease her mother."

The grounds of appeal

47. The essence of Mr Gray's argument on behalf of the father was encapsulated in §28 of his skeleton argument:

"The Appellant contends that the findings made by HHJ Lancaster were based on a misunderstanding of the evidence and failure to carry out any adequate analysis of the credibility of the individuals involved, such that, when taking into account the burden of proof, the findings were not open to him to reach."

48. Mr Gray developed this argument by examining a number of aspects of the judgment, not all of which need to be covered here, although I will mention some before coming to that part of the argument which has ultimately persuaded me that the appeal should be allowed.
49. Mr Gray criticised the judge's evaluation of the mother's and the grandmother's evidence as inadequate. It was said that, although the judge acknowledged that there were contradictions in the accounts they gave, he failed to deal appropriately with these. Mr Gray set out in his skeleton argument the various accounts given by the mother and grandmother about elements of what occurred on 19 and 20 March, for example as to when the physical signs on J were discovered, what they saw, what was first said to J immediately afterwards on 19 March, what J herself said then, and when the doctor was telephoned.
50. This line of argument has to be evaluated keeping in mind that, whatever the timing and sequence of events leading up to the discovery made on the Tuesday evening, ultimately it was incontrovertible that unusual physical signs did exist, and the judge had descriptions of them from the doctors upon which to proceed, rather than needing to rely upon lay evidence about J's condition. The same could not be said, however, of the accounts given by the mother and the grandmother of what was said in the immediate aftermath of the discovery, which were not corroborated in the same way.
51. The difficulty for Mr Gray's argument, however, is that the judge recognised that there were inconsistencies in the evidence and did deal with some of them specifically in his judgment. He dealt head on with the important issue of what J was asked when the signs were first discovered, and resolved the inconsistency between the mother and the grandmother by preferring the mother's version of events for the reasons he gave (§54). In my view, this court cannot interfere with this sort of evaluation of the relative credibility of witnesses. The judge also recognised explicitly that the description of the signs given by the mother and the grandmother did not accord with the doctors' descriptions, but he did not draw adverse conclusions about this, relying on the advice of Dr Waters and Dr August about the inaccuracy of lay descriptions of injury. He also noted the inconsistencies in the account of when cream was applied on the Tuesday and made his own findings about the sequence of events at that time. In my view, he cannot be expected to have spelled out in his judgment all of the contradictions and inconsistencies in the mother's and grandmother's evidence and to have dealt with them specifically one by one. Had all other matters been equal, I would not have been persuaded to allow the appeal on this basis.
52. Reliance was placed on the judge's refusal to admit evidence from the mother's former partner, B, to the effect that he used to hear her saying untrue things to J about her father in order to make her dislike him. This case management decision of the judge was taken on 5 February 2014. It was well within the judge's discretion. It is extremely unlikely that the evidence would have taken matters any further. The mother accepted in oral evidence anyway that J would have been aware that she had very negative views about her father. I do not set any store by this ground of appeal either therefore.
53. The grounds of appeal which raised more cause for concern were those in relation to the timing of the injury and the judge's failure to take into account the limitations of the medical evidence. The issues that arise in relation to these matters have, in turn, the capacity to affect the judge's treatment of what J herself said. Not uncommonly, in a hearing about factual issues, one part of the evidence colours other parts of the evidence so that, for example, a shift in the weight attributable to one element reduces or increases the weight that can be put upon another or alters the way in which the judge approaches it. An unrelated and rather extreme example will illustrate the point. If a judge were to have evidence from a mother that X was the father of her child and from X that he was not, the judge would no doubt approach their evidence entirely open to either possibility. If, however, DNA testing established that X was extremely likely to be the father, the judge would no doubt approach X's evidence with scepticism. So it is when evaluating the evidence of possible sexual abuse. It is vital that the whole picture should be considered before reaching conclusions.
54. It is important to recognise that J was a child who had an itchy skin condition which accounted for the majority of the signs seen on her. The diagnosis of sexual abuse turned on the circular abrasion that the doctors agreed would not have been generated by the skin condition itself. The evidence as to its cause had several elements. In part, it depended on the views of the doctors as to causation, which included their views as to how itchy the condition would have been and the degree to which a child would have scratched the affected area. Also required was a consideration of the evidence as to whether J had in fact been suffering from itching and had been scratching. Another element was what J herself said. But a further significant piece of the jigsaw, in my view, was the evolution of the picture from the time of J's contact with the father onwards. All of these features had to be considered together as well as separately in determining whether it was established on the balance of probability that J had been abused.
55. The judge said at §56 that in his judgment the medical evidence was clear. He seems to have taken the view that it clearly established that the abrasion was not a consequence of LSA and that self infliction was not an explanation. He mentioned two particular features in support of this. The first was that it would have been painful for J to have scratched herself and she would have stopped. The second was that he found the abrasion was probably not caused by a child's fingernail but an adult's.
56. In my view, the judge overstated the clarity of the medical evidence. The doctors were not definitive in their rejection of the possibility of scratching as a cause. In Dr Waters' police witness statement and her response to written questions in December 2013, she named excoriation of itchy skin as one possible cause of genital abrasions. She seems to have been deflected from this by Dr August having said that those with LSA do not cause abrasions from scratching, so subscribed to the joint statement that scratching was not the cause here. However, in their oral evidence, both doctors said that abrasions from scratching could occur. I have quoted what they said more fully above, but, in summary, Dr August said it was a "relatively unusual finding" but "perfectly possible", then that "it could happen but I think it's unlikely", and Dr Waters said that she still considered that excoriation of itchy skin could have been a cause.
57. Dr August seems to have been proceeding on the basis that J's scratching was minimal. However, J was complaining of itching and was seen scratching before the signs were found, and to more than a minimal extent, although it is true that she did not complain of itching specific to the area where the signs were found, nor was there evidence of her having been seen scratching that area directly, as opposed to scratching the top of her legs. On the other hand, J told Dr August, when he examined her later on, that she did scratch her vulval area a little from time to time. Furthermore, of the two lesions thought to be abrasions, one (the linear one) turned out to be a streak of purpura or petechial haemorrhage, probably from scratching (see Dr August in cross-examination), which was surely good evidence that scratching of that area had taken place at the relevant time in March 2013.
58. As to the judge's statement that it would have been painful for J to have scratched herself and she would have stopped, Dr Waters expressed the thought that J would "stop scratching when she got pain" (see the passage I have quoted at §40 above). However, I am not entirely sure what precisely was meant by this. Did Dr Waters mean that J would not cause an abrasion because pain would stop her before that happened? Or did she mean that she would not scratch after the skin was abraded because it would be painful? Dr August, in the passage I have quoted at §38 above, when asked about a child rubbing themselves to the point of causing pain, seems possibly to have been proceeding on the basis that the abrasion would not have been caused in one movement and postulating that a child would not have carried on to a second movement once having inflicted a painful abrasion on him or herself.
59. Whereas Dr August thought the size of the abrasion was inconsistent with a child scratching, Dr Waters did not think so. The judge's own account of the medical evidence earlier in his judgment recognised this divergence but he did not say how he resolved it as he did, finding the probable cause to be an adult's fingernail.
60. The sequence of events following contact was also very important and did not, in my view, receive the scrutiny in the judgment that it required. Nothing untoward, whether soreness, itching or scratching, was noted on J's return from her father's. She did not complain of soreness after the bath which she was given by the mother on the Sunday night. Indeed, there was no mention of anything of relevance until she came out of school on the Tuesday and then there was itching and scratching sufficient to require the adults to take steps in an attempt to alleviate it.
61. The possible significance of this sequence was acknowledged in the doctors' oral evidence. Dr August commented on the absence of anything seen on the Sunday and said that it would all have hung together better if injuries had been noted that day. No intimate inspection had, of course, been made on the Sunday and he agreed that the fact that nothing was noted did not therefore mean that the abrasion was not there, as you would have to look for it. However, Dr Waters said that if J only started to complain of soreness on the Tuesday, it was logical that the abrasion was not there before then (see the passage from page 680 which I have quoted earlier). She also said that an abrasion like the one she observed would have stung in the bath. It can be inferred, I think, that it did so on the Tuesday, or was otherwise painful, as J was provoked to complain.
62. In this context, the gap between the last contact that J had with the father on the Sunday morning, from which she returned without any complaint of soreness or other symptoms, and the appearance of symptoms after school on the Tuesday required particular attention from the judge, in my view. If the abrasion was caused by the father, it had to have been there on the Sunday morning. Why was there no complaint about it from J sooner, and in particular at the time of the Sunday bath? How did this picture fit with the known fact that J had an itchy skin condition and had been scratching? And what light did this cast on what to make of what J said had happened?
63. The only reference that the judge made, in the passage at the end of his judgment when he was making his findings, as to the conundrum of the timing was four sentences at the start of §57 (set out in full above but quoted here for convenience):

"As to the timing, I find it was probably caused during the period that J was with her father. J complained of stinging in the bath on the Tuesday night. It is probable that the abrasion was worse then. By the Friday when Dr Waters examined J it was more sore."

64. If he was going to spell out of the evidence that the absence of earlier complaint was explained by the lesion having become more sore as the week went on, the judge needed to provide more explanation than this, in my view. The point was of such potential importance that it required particularly focussed consideration. I suspect that the judge was not assisted by the fact that the medical evidence evolved over the course of the case and that the reference to stinging in the bath came only in the last few minutes of the oral evidence of Dr Waters, who was the second of the two doctors to give evidence. The judge's reasoning seems to have been that it was probable that the abrasion was worse by the Tuesday. It looks as though he bolstered this in his mind by proceeding on the basis that by Dr Waters' examination on the Friday, it was more sore; that was not the evidence of Dr Waters as the judge had recognised earlier in his judgment but did not reflect here. She only said it may have become more sore.
65. The judge's reasoning on the timing point is so attenuated that I think it leaves open the distinct possibility that he reasoned backwards, looking for an explanation for the lack of earlier complaint about an abrasion which he thought was there, rather than looking at what the lack of earlier complaint told him about the presence or absence of a lesion when J returned from her father's.
66. I would not say that the evidence in this case was such that a finding of sexual abuse could not have been made. But given the presence of an itchy skin condition in a child who was known to have scratched the affected area, which would have been more than usually vulnerable to trauma, the evaluation of the evidence had rigorously to address all of the contra-indications to such a finding including the gap between the last contact with the father and the appearance of symptoms. Quite rightly, the judge did not determine this case on the basis of J's rather economical account alone and it cannot therefore be said that a defect in his evaluation of the gap or a failure to recognise the limitations of the medical evidence leave his finding unaffected. The credibility of J's account depended on how it fitted with the rest of the evidence, including the medical evidence, and with the evolution of her symptoms.
67. Mr Gray submitted that there were matters here which required the expertise of a paediatrician. Neither Dr Waters nor Dr August had this expertise. Furthermore, Dr August had seen relatively few children with LSA. I do not think that the instruction of a paediatrician had, in fact, been sought so it is difficult to criticise the judge over the absence of such expert advice. However, there is nevertheless force in Mr Gray's submission, in my view. I would have thought that advice from a paediatrician about how a child with a condition such as LSA would be expected to respond, and in particular whether they would scratch to the point of causing a lesion such as that seen here, would have been of the greatest assistance, and one might even say indispensable, given that so much turned on this.
68. After much anxious consideration, I have reached the view that the judge's reasoning of his conclusions in this very difficult case is such that the appeal must be allowed and the findings of fact set aside. I would remit the matter for fresh findings of fact to be made. Whilst the care taken by Judge Lancaster is obvious from his judgment, and from reading the transcript of parts of the proceedings before him, in this instance it would seem to me inevitable that the hearing should be before another judge. There should be a directions hearing as soon as possible as, for various reasons, a great deal of time has now elapsed and J needs a decision to be made.

Lord Justice Floyd:

69. I agree.

Lord Justice Vos:

70. I also agree.