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England and Wales Court of Appeal (Civil Division) Decisions
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F & B (Fact-Finding: Gonorrhoea) [2025] EWCA Civ 340 (28 March 2025)
URL: http://www.bailii.org/ew/cases/EWCA/Civ/2025/340.html
Cite as:
[2025] EWCA Civ 340
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Neutral Citation Number: [2025] EWCA Civ 340 |
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Case No: CA-2024-002609 |
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE FAMILY COURT AT LIVERPOOL
HH Judge Greensmith
LV23C50418
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Royal Courts of Justice Strand, London, WC2A 2LL |
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28 March 2025 |
B e f o r e :
LADY JUSTICE MACUR
LORD JUSTICE BAKER
and
LORD JUSTICE LEWIS
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F AND B (FACT-FINDING: GONORRHOEA)
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____________________
Frances Heaton KC and Megan Cox (instructed by Local Authority Solicitor) for the Appellant
Karl Rowley KC and Ian McArdle (instructed by James Murray solicitor) for the First Respondent
Simon Heaney (instructed by Bell Lamb and Joynson) for the Third and Fourth Respondents
Michael Jones KC and Jacqueline Deans (instructed by Morecrofts) for the Intervenor
The Second Respondent was not represented at the hearing.
Hearing date : 12 March 2025
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HTML VERSION OF APPROVED JUDGMENT
____________________
Crown Copyright ©
This judgment was handed down remotely at 10.30am on 28 March 2025 by circulation to the parties or their representatives by e-mail and by release to the National Archives.
.............................
LORD JUSTICE BAKER :
- In June 2023, a six-year-old girl, hereafter called "F", was diagnosed as suffering from gonorrhoea. The local authority started care proceedings in respect of F and her younger brother, "B", then aged 5. Interim care orders were granted but the children remained living with their maternal grandmother. In the proceedings, the local authority sought a range of findings on the basis of which it asserted that the threshold criteria for making care orders under s.31(2) of the Children Act 1989 were satisfied. The findings sought included sexual abuse, emotional harm, the poor mental health of the mother, parental drug and alcohol misuse, domestic violence, and criminality on the part of the children's father. All findings were substantially accepted by the parties to the proceedings, save for those relating to sexual abuse, which proceeded to a fact-finding hearing before HH Judge Greensmith over five days in September and October 2024. The local authority alleged that F had contracted gonorrhoea as a result of sexual abuse perpetrated by either the mother or the mother's brother, X. But in a reserved judgment delivered on 6 November 2024, the judge made findings that F had contracted the infection as result of fomite transmission, facilitated by X at a time when he knew he was carrying the infection and was contagious.
- The local authority appealed against that finding. At the conclusion of the appeal hearing, we informed the parties that the appeal would be allowed for reasons to follow and the case remitted for rehearing of the fact-finding hearing before another judge.
- This judgment sets out my reasons for agreeing with that decision.
Background
- The children's mother has a difficult history of substance and alcohol abuse and poor mental health. In 2014, she became involved with the father who was also involved with drugs, alcohol and crime. Their relationship was afflicted by incidents of domestic violence. As a result of these concerns, social services became involved and, following her birth in 2016, F was made subject to a child protection plan. In 2018, the mother gave birth to her second child, B. Social services remained involved with the family.
- In 2021, the parents' relationship came to an end. The mother's lifestyle remained chaotic and she continued to misuse drugs.
- In early May 2023, she left the children in the care of the maternal grandmother. At that time, X, then aged 21, was also living at the grandmother's house. Some years earlier, when a teenager, X had been the subject of investigations into sexual offences, although they had not led to any criminal proceedings.
- On 25 May 2023, X was informed by a sexual health clinic via text message that he had tested positive for gonorrhoea.
- On 1 June 2023, F was seen to be suffering from a discharge from her eye. On 5 June, the grandmother took F to hospital where eye and vulva swab tests were taken. Both tested positive for gonorrhoea. The grandmother immediately ordered X to leave the property.
- On 12 June, a medical examination arranged for F had to be abandoned because she became very distressed and refused to be examined by the clinician.
- On 14 June, throat and vulva swabs taken from the mother tested positive for gonorrhoea. Tests of B, the grandmother and her partner were negative.
- On 23 June, the local authority started care proceedings in respect of both children. Interim care orders were made on the basis of plans for the children to remain in the care of their grandmother, on condition that no person other than the grandmother and her partner lived in the property. The parents and the children (via their children's guardian) were joined as respondents, and X was given leave to intervene and was legally represented in the proceedings.
- On 13 July 2023, a further attempt was made to conduct a medical examination of F. Again she declined to co-operate in any internal examination. A partial external genital examination revealed no evidence of injury. Neither child has made any allegation of sexual abuse.
The expert reports
- Within the proceedings, two expert reports were obtained from Dr Amos Ghaly, a consultant physician in genitourinary medicine, sexual offences examiner and forensic physician, and Dr Michael Rothburn, a consultant medical microbiologist.
- In his first report, Dr Ghaly advised:
"Gonorrhoea is a sexually transmitted disease which is caused by contracting Gram negative intracellular diplococcus Neisseria gonorrhoeae (NG). The primary sites of infection are the mucous membranes of the urethra, endocervix, rectum, pharynx and conjunctiva.
Transmission is by direct inoculation of infected secretions from one mucous membrane to another. The main route is sexual contact with relevant anatomical sites, penile oral, penile anal and penile vagina...etc."
Dr Ghaly described so-called "vertical" transmission – from mother to baby during delivery. He continued:
"A positive culture for N gonorrhoeae from any site in a child without prior peer sexual activity is strongly suggestive of sexual abuse. The question of whether gonococcal infection in children can be acquired through fomites still arises. To date there are no convincing data to support nonsexual mode of transmission in children.
Sexual abuse should be strongly considered when a gonorrhoea infection (i.e., genital, rectal, oral, or ophthalmologic) is diagnosed in a child after the newborn period and before the onset of puberty. In some publications sexually transmitted disease may be the only physical evidence of sexual abuse in some cases."
- In answering further questions in his instructions, Dr Ghaly said:
"The likelihood that it could have been transmitted from an inanimate object in the house e.g., through shared bathwater, a towel, a toilet seat/potty, bed linen is uncommon and has not been widely supported in the literature but cannot be totally eliminated."
Asked to indicate the documented frequency of each of the potential mechanisms, he responded:
"The most likely mode of transmission in this case (6 years of age) is sexual. Given the age of the child, vertical transmission is unlikely. As stated above, other non-sexual mode of transmission via fomite...etc are not widely supported in the literature in particular given the fragility of the organism and its susceptibility to dryness."
Asked to comment on any other matter he felt might be of assistance to the court, he added:
"It is recognised that gonorrhoea is a recognised sexually transmitted infection which cannot survive outside the host for significant length of time given the fragility of the organism and its susceptibility to dryness. Moisture is a main factor for its survival.
It is worthwhile stating that the mere presence of the bacterium on a surface or object does not equate transmission. In addition, if N gonorrhoea is easily transmitted via the above nonsexual route, one would expect the other children to have been infected which was not the case."
- Dr Ghaly cited the following passage from "Physical Signs of Child Sexual Abuse" (known as "The Purple Book"), May 2015 edition:
"… accidental transmission, including fomite transfer and auto inoculation, non-sexual close physical contact have also been proposed. Although there have been studies which have shown the presence of live organism on inanimate objects none have demonstrated the organism can then be transmitted to humans. STIs or sexually transmitted infections have also been detected on clinic surfaces and hands of national health service staff using the NAAT test but attempts to culture Neisseria Gonorrhoea … from these specimens have failed, suggesting that this material is non-viable and the transmission via this route is extremely unlikely."
- Dr Ghaly expressed his conclusion in the following terms:
"it is my opinion that F's infection was contracted more likely through sexual contact. Vertical transmission is unlikely given her age at the material time. Other modes of transmission through, inter alia, contaminated hands, toys, bath, and fomites (given the fragility of the organism and its susceptibility to dryness) have not been established/substantiated but cannot be totally excluded in their entirety due to lack of robust published research evidence."
- In a supplemental report, Dr Ghaly advised that the incubation period for gonorrhoea was three days to two weeks.
- In his report, Dr Rothburn advised that, as strains of gonorrhoea are indistinguishable, it was not possible to identify the source of the infection. He further advised that, as it is an asymptomatic genital infection, it was "not possible to suggest the time sequence in which individuals became infected". He confirmed that gonorrhoea was transmitted through sexual contact. He observed:
"the possibility of fomite transfer (transfer via an inanimate object), is considered rare because Neisseria gonorrhoeae is a fastidious organism which does not survive outside the human host in a dry environment."
In response to a question as to how long the infection could live on a surface such as a towel, Dr Rothburn said:
"Survival of the Neisseria gonorrhoea bacterium on an inanimate surface depends on it being a moist environment. Survival of gonococci has been demonstrated for up to 24 hours on a towel periodically rinsed with warm, physiologic saline …. "
Asked about the documented frequency of the mechanism, he said:
"Studies indicating the environmental survival of bacteria on these surfaces does [sic] not indicate a mode of transfer; in other words the bacteria has to reach susceptible epithelial cells to cause infection …. There are no publications indicating the frequency of fomite transfer and infection which is considered to be rare."
The hearing and judgment
- The local authority drafted an extensive schedule of threshold findings. As stated above, the findings sought were substantially conceded, save for those relating to sexual abuse which were, in summary, that:
(1) F was infected with vaginal gonorrhoea through transmission by contact between her vagina with the penis, vagina, mouth and/or anus of an infected person, such contact requiring intimate exposure of the respective mucus membranes;
(2) F was infected with ocular Gonorrhoea through transmission by either (a) contact between her eye and the discharge from the penis or vagina of an infected person or (b) auto-infection due to F having already contracted vaginal gonorrhoea;
(3) as a result, F has suffered significant sexual harm;
(4) the perpetrator of that sexual harm was either X or F's mother.
- The case was listed for a fact-finding hearing of the sexual abuse allegations. The proceedings were delayed, however, by difficulties over police disclosure and a fostering assessment of the grandmother. In March 2024, X was arrested for an offence of rape of a teenage girl. There were further delays over police disclosure of information relating to this allegation. A further issue also arose about a suspected injury to B which was the subject of further expert evidence but ultimately not relied on by the local authority in support of its case. All these matters led to the adjournment of the fact-finding hearing listed in April 2024.
- The hearing eventually took place in September and October 2024. Oral evidence was given by Dr Ghaly, Dr Rothburn, the grandmother, and X. The mother failed to attend most of the hearing and did not give evidence. X only attended on the day on which he gave evidence. The father, who was in prison at the time of the hearing, attended by video link but was not required to give evidence.
- The judgment started with a summary of the background and a recital of the findings sought by the local authority. Under the heading "The Relevant Law", the judge then set out in some detail the legal principles derived from case law. Two elements of this exposition are relevant to this appeal.
- First, under the sub-heading "The burden of proof", he included the following passage:
"10. The burden of proof is on the local authority and must not be reversed. In Re A, B and C (Fact-Finding: Gonorrhoea) [2023] EWCA Civ 437, a case with similar facts to this, and in which the medical evidence was very similar, (one of the experts was Dr Ghaly,) Baker LJ warned:
'To my mind there is considerable force in the appellant's criticism of the judge's conclusion at paragraph 75 of the judgement that "despite the parents evidence they cannot be telling the truth, because the presence of the gonorrhoea infecting A itself is evidence of abuse". I would not characterise this as a reversal of the burden of proof. But I agree with the appellant submissions that by the statement the judge seems to have concluded wrongly on the medical evidence that the mere presence of gonorrhoea in the child was determinative that she did not sufficiently weigh it up against the substantial evidence pointing the other way. [53] (emphasis added).
Furthermore, the judge considered the evidence about the identity of the perpetrator after reaching a finding that the child had been abused.' [54]
The Court of Appeal allowed the appeal on two pleaded grounds; the relevant ground for this case was,
'The court failed to adequately consider the wider canvas of evidence and in doing so attached undue weight to the medical evidence to conclude that A was infected via sexual means.' [64]"
It should be noted that the emphasis in the citation of paragraph 53 from the judgment was added by HH Judge Greensmith.
- Secondly, under the sub-heading "Truth and lies", the judge said:
"16. It is not uncommon for witnesses during the course of proceedings to tell lies. The Court will be aware that this may be for a variety of reasons, such as shame, misplaced loyalty, panic, fear, or distress. The fact that a witness may have lied about some matters does not necessarily mean that they have lied about everything. I refer to the comments of Lord Lane CJ in R v Lucas [1981] QB 720 where he stated that:
'To be capable of amount to corroboration the lie told out of Court must first of all be deliberate. Secondly it must relate to a material issue. Thirdly the motive for the lie must be a realisation of guilt and a fear of the truth. The jury should in appropriate cases be reminded that people sometimes lie, for example in an attempt to bolster up a just cause, or out of shame or out of a wish to conceal disgraceful behaviour from their family. Fourthly the statement must be clearly shown to be a lie by evidence other than that of the accomplice who is to be corroborated, that is to say by admission or by evidence of an independent witness.'
17. The approach to be taken within the Family Court to the treatment of proved lies is no different to that which applies within the Crown Court as held in Re H-C (Children) [2016] EWCA Civ 136 and reaffirmed in Re A, B and C (Children) [2021] EWCA Civ 451.
18. Therefore, the mere fact of a lie being told does not in itself prove a primary case against a party or witness, should they have been found to have lied to the Court."
- The judge then considered the evidence of the two experts. In addition to summarising their reports, he added a number of matters arising from their oral evidence. In particular, of Dr Ghaly's evidence, he recorded:
"28. ….he emphasised the fragility of the gonorrhoea bacteria and stressed how susceptible it is to dryness. To support the doctor's opinion that fomite transmission was unlikely he stressed that it is difficult for gonorrhoea to exist outside of the infected person as once the organism leaves its host it is compromised.
29. Regarding transmission from an object inserted into a child's vagina, other than a penis, this he concludes is impossible as the object would have to be inserted past the hymen which would have caused the child significant pain.
30. Dr Ghaly went to lengths to explain that the mere presence of bacteria on a surface cannot itself pass gonorrhoea onto a person simply by that person coming into contact with the bacteria. There must be a mechanism by which the live bacteria can be transmitted to a mucous membrane. Merely sitting on the toilet seat or touching live bacteria with a finger would not result in a person contracting gonorrhoea unless the child, for example, placed their finger in their mouth or touched another mucous membrane.
31. When asked how long the gonorrhoea bacteria can live outside of its host Dr Ghaly said that it can live from minutes to hours depending on factors. Regarding transmission from a towel, Dr Ghaly said that the child would have to pick up a towel and then immediately touch a mucous membrane in order for the infection to be passed."
Of Dr Rothburn's evidence, the judge noted that he
"clarified firstly that his notion of a moist environment would be where there is sufficient steam to cause visible condensation, or simply a damp or wet towel. In either of these environments Dr Rothburn opined that the bacteria would remain sufficiently live to convey the infection for 12 hours or so."
- The judge summarised the grandmother's evidence, observing that she "was endeavouring to help the court by being honest". It was her evidence that during bath time conditions in the bathroom would be "very steamy and hot". His summary of her evidence continued:
"41. The family towel protocol was that bath towels were kept outside of the bathroom on shelves and a hand towel was retained in the bathroom hanging on the radiator, which would be changed once daily following the children's bath time. While [the grandmother and her partner] would bring their towels down to be washed after a bath or shower it was common for her son X to either leave his (damp towel) on the bathroom floor or in his bedroom. It was [the grandmother's] position that all would use separate towels save for the hand towel."
The grandmother reported that X "spent little time with the children as they tended to annoy him". The children slept in a room adjacent to hers while X had his own bedroom. She "was confident that if he entered the children's room during the night, she would be aware of his doing so."
- The mother had filed two statements in the proceedings but did not attend to give oral evidence at the hearing. The judge recorded her evidence that she had been diagnosed as having gonorrhoea in July 2023 and her explanation that she may have contracted the infection after having intercourse with two homeless men around that time. She said she was "extremely shocked" to learn that F had tested positive for gonorrhoea. The judge observed that there was "no acknowledgement within the statements that she may have been the person responsible for transferring gonorrhoea to her daughter, only an acknowledgement that her brother X had been accused of doing so". The mother said that she "could never imagine him sexually abusing any child let alone his niece". During the period the children were living at the grandmother's house, she had only seen them on one or two occasions for short periods.
- Turning to X, the judge noted that he had the benefit of an intermediary as well as legal representation, but had absented himself from much of the hearing, although unlike the mother he had eventually attended to give oral evidence. The judge described his explanation for failing to attend as "wholly inadequate". He noted his evidence that he had had very little contact with the children and was "very rarely alone with them". The judge found X's evidence about how he discovered he was suffering from gonorrhoea as "confused". In evidence, he said that he had found out in early June 2023 but he also confirmed that he had received a text message from the clinic informing of the diagnosis on 25 May 2023. The judge summarised X's evidence about his bathing routine, including that he sometimes left a used towel on the bathroom floor and that it was "therefore possible that F could have picked up a used bath towel of his that he had left lying around if she needed to dry her hands" or touched his underwear or towel left in a pile of washing.
- Next the judge set out the evidence disclosed by the police about offences allegedly committed by X, including the recent investigation into the allegation of rape. He recorded X's own evidence about this incident, describing it as "unconvincing". He also recorded that the police had not identified any relevant indecent images on X's telephone, although they had been unable to review all of the material due to the quantity of media on the device. The judge also referred to a report from the children's school of an incident in January 2023 when X, accompanied by another man, had come to collect the children from school. It was recorded that, when F saw them, she started to cry and told her teacher that she didn't want to go with them. When her teacher asked her why, F said "they told me what to do" and added that her uncle and the other man were "too loud".
- The judge then set out his overall analysis of the evidence regarding sexual abuse. He noted that the timeline was "narrow". There was "no evidence except the infection that supports an allegation that X or the mother sexually abused …F during the window". The judge noted that "the window of infection suggests X was responsible". He continued (paragraph 75):
"F first showed symptoms of having contracted Gonorrhoea on 1 June 2023. Her period of incubation would have been from 14 May to 28 May. This coincides with X's period of being contagious. I must look at the whole picture. [There] is no evidence which of itself would support sexual abuse of F other than her having contracted gonorrhoea. The expert evidence is that sexual abuse is the likely cause of the transmission of gonorrhoea to F, but Dr Ghaly opines that whilst the likelihood of the N Gonorrhoea bacteria having been transmitted from an inanimate object in the house are uncommon and has not widely been supported in the literature available, fomite transmission cannot be totally eliminated" [the judge's emphasis]
- The judge described X's evidence about the date he discovered he had gonorrhoea (that is, that he discovered he had the infection in early June, as opposed to mid May) as "unsustainable". He noted that "this story only became part of X's evidence after he would have been aware of the expert evidence". He continued:
"79. It is, in my judgment, likely that X made up this story to give a reason for the infection being present on the toilet seat or on towels he used in the bathroom. In my view it is likely that X has created a narrative which he thinks would tie in with the timings of the discovery of symptoms in F. X would be unlikely to understand the flaw in this explanation which is that it is most unlikely that F could have incubated the infection in this short period, sufficiently to show symptoms simultaneously with himself, so if this was his plan, it was destined to fail. The significance of this lie has to be regarded in the context of the Lucas principles outlined above. The fact that X has lied does not of itself negate the possibility of F having become infected by reason of X's lack of personal hygiene."
- The judge continued:
"80. The combined expert evidence does not exclude the possibility that F could have contracted the infection from fomite transmission. The collective evidence supports that the germ can survive on a surface for up to 12 hours in moist conditions. A damp towel located within a bathroom which is poorly ventilated and in which condensation forms, and is visible, is such a moist environment. For F to have contracted the infection from a fomite source, the germ must have been deposited on a surface and survived for a long enough period for F to come into contact with it. The germ must then have been conveyed to one of her mucus membranes for the infection to enter her body. This could be achieved directly by the object having been inserted into the body with such depth that it touches the membrane. In the case of the eye, this could be achieved by wiping the eye with an infected towel or by self infection from touching an infected part of the body and then touching the eye. In the case of the vulva, the infection would have had to have entered F's vestibule area. It has been suggested that the germ could have survived on the toilet seat and then conveyed to F. If F had sat on the toilet seat within such proximity for the germ to have survived, it would still have had to enter her body. This is imaginable in the case of the eye. For the germ to be found in the vulva it would have had to be digitally inserted into the body. The evidence does not exclude the possibility of F's eye and her vulva having been infected at the same time. Alternatively, each could have been infected before the other.
81. In light of F's age, any sexual contact would necessarily be sexual abuse. The experts expressly do not rule out fomite transmission as being possible. The grandmother's routine with the family's towels was meticulous. Some would say exemplary. The bathroom humidity makes it unlikely to have sustained the germ living for the necessary period for it to be picked up by F either form towels or a toilet seat, but not impossible.
82. X's evidence was unimpressive. The local authority points to aspects of X's profile which it says paints a picture of someone who may commit sexual abuse against a young child. This is pure conjecture. The evidence in this case paints a picture of X as a person with low sexual standards. The manner in which X has conducted himself throughout the proceedings evidence someone who has little or no respect for authority: someone who admits to dealing drugs and collecting drug debts by stealing. Accepting X's explanation as to how the infection passed is to accept that X continued to live in house with young children when he knew he was infectious with a sexual disease. While living in the house, X took few if any precautions not to pass the infection onto others. In fact, he continued with his usual low standards of hygiene of carelessly using towels and leaving infected clothing and bedding lying around.
83. I am satisfied that there is no cogent evidence to support that X spent sufficient or indeed any time alone with F to infect her physically in a way that would be necessary to pass the disease. The lack of a complaint from F is significant, as is no reference to such by B. The lack of supportive adverse evidence on X's phone is significant."
- The judge then considered the mother's position but concluded that on the evidence he could not find that she caused or contributed to F's infection.
- He then concluded his analysis of the sexual abuse allegations in the following paragraph:
"89. In conducting my analysis I must consider all the evidence in this case, I respectfully refer to the approach adopted by Mr Stonor KC in his submissions to the Court of Appeal in ABC. Baker LJ refers to Mr Stonor's submissions in paragraph 33 of his judgment. His Lordship says, referring to Mr Stonor submission:
'By formulating a presumption that the presence of gonorrhoea is in itself evidence of sexual abuse, the court prevented itself from considering each piece of evidence in the context of all the other evidence and therefore did not undertake an overview of the totality of the evidence in reaching its conclusion. A proper survey of the wider canvas would have shown the presence of gonorrhoea was the only evidence of sexual abuse. All the other features pointed the other way.'
Baker LJ then goes onto list the features of that case which were submitted as pointing the 'other way'. The list is remarkably similar to this case which has the following features:
a. A verbal 6 year old child had not made any allegations of having been sexually abused.
b. There is no (other or corroborative) evidence of F having been sexually abused.
c. There is no evidence to suggest that X had any sexual interest in children.
d. There was no evidence of X having had an opportunity to abuse F.
e. The expert evidence supports that fomite transmission is possible.
f. The evidence supports that the germs to carry the infection could have survived in a form that they remain transferrable in the environment described by X and his mother.
g. X (despite his cognitive limitations) has presented himself to court to give evidence and has denied an allegation of sexual abuse.
In my judgment, if I were to find that F contracted gonorrhoea as a result of having been sexually abused by X, I would (to quote the words of Baker LJ in ABC):
'Have concluded wrongly on the medical evidence that the mere presence of gonorrhoea in the child was determinative of sexual abuse and I would not sufficiently weigh it up against the substantial evidence pointing the other way.'"
- The judgment ends with a recital of the other findings on which the threshold criteria were satisfied.
The appeal – grounds and submissions
- The local authority was given permission to appeal on three grounds.
- Under the first ground, it was argued that the judge was wrong to place significant weight on the experts being unable to 'totally eliminate' or 'exclude' fomite transmission and in doing so did not apply the correct standard of proof. In the light of the evidence of the experts that fomite transfer is "rare" and no more than a "theoretical possibility" for which there is no supportive research evidence, the weight attached by the judge to the possibility that F contracted gonorrhoea via fomite transfer was inconsistent with the totality of the medical evidence.
- Under the second ground, it was contended that the judge failed to properly analyse the wider canvas evidence alongside the expert evidence. Under this heading, attention was drawn to several matters to which, it is said, he failed to give proper weight when considering whether, on balance, sexual abuse was the method of transmission. These matters included (1) the judge's finding that the grandmother was an honest witness whose account of the household routine and state of the bathroom was accepted; (2) his finding that the bathroom humidity "makes it unlikely to have sustained the germ living for the necessary period for it to be picked up by F either from towels or a toilet seat, but not impossible"; (3) the various allegations of sexual offences and/or inappropriate behaviour made against X, and (4) the judge's conclusion that X was an unsatisfactory witness who had made up his account of the timing of contracting gonorrhoea to fit the expert evidence.
- Under the third ground, it was submitted that the judge was wrong not to explain his reasoning for rejecting the medical evidence and simply relied on the case of Re A, B and C (Fact-Finding: Gonorrhoea) [2023] EWCA Civ 437 to justify a departure from the medical evidence.
- On behalf of the intervenor, reliance was understandably placed on the well-established principle that an appellate court must exercise restraint before interfering with findings of fact and inferences drawn from such findings. It was submitted that the judge had examined the entirety of the evidential picture, including the evidence supportive of a finding that sexual abuse had taken place, the factors which weighed against sexual abuse having taken place, and the environmental factors within the family home which could have assisted in facilitating fomite transfer of the gonorrhoea bacterium to F, in particular X's low standards of hygiene of carelessly using towels and leaving infected clothing and bedding lying around. Having undertaken that analysis, he was entitled to find that transmission via sexual abuse could not be found as having taken place on the balance of probabilities. Fomite transmission could not be excluded. Read in totality, the judgment adequately justified the judge's departure from the expert evidence regarding sexual abuse being the likely mode of transmission of the gonorrhoea infection. The conclusion was rationally supportable.
- These arguments on behalf of the intervenor were broadly supported by leading counsel for the mother, although she has disengaged with her legal representatives since the fact-finding hearing.
Discussion and conclusion
- This Court is always reluctant to interfere with a judge's assessment of the evidence and the attribution of weight to specific findings, for the reasons explained by Lewison LJ in Fage UK Ltd v Chobani UK Ltd [2014] EWCA Civ 5 at paragraph 114. But in my view in this case we are compelled to interfere with the judge's conclusions, for the following reasons.
- First, I accept the local authority's argument that the judge either misinterpreted or misapplied the expert evidence. The principal message from the expert evidence was that the presence of gonorrhoea in a child was, in Dr Ghaly's words, "strongly suggestive of sexual abuse". Because, as Dr Ghaly advised, there is for understandable reasons no robust research evidence on the topic, the possibility of fomite transmission has not been totally eliminated. But neither has it been established. It is no more than a theoretical possibility. It was Dr Rothburn's evidence that "the possibility of fomite transfer … is considered rare". When considering whether F had been sexually abused, the presence of gonorrhoea was not determinative, but, in Dr Ghaly's words, it was strongly suggestive.
- Instead of treating that as the starting point when considering the totality of the evidence, the judge focused on the fact that the expert evidence left open the possibility of fomite transmission. He said words to that effect at several points in the judgment. Although at paragraph 29 of his judgment, he referred to Dr Ghaly's observation in his oral evidence that in this case vaginal fomite transmission was "impossible", he seemingly did not take this into account in his overall analysis. Instead, he alighted on Dr Ghaly's observation that "moisture is a main factor" for the survival of the bacterium and Dr Rothburn's comment that its survival "on an inanimate surface depends on it being a moist environment". He noted that the conditions in the bathroom at the grandmother's home provided the moist environment in which it could have survived for up to 12 hours. He set out in paragraph 80 of his judgment ways in which F might have been infected by fomite transmission. It is right to note that at paragraph 81, he described the grandmother's routine with the family towels as "meticulous … some would say exemplary". But overall he concluded that fomite transmission in that environment was "unlikely … but not impossible".
- I therefore accept the local authority's submission that the weight attached by the judge to the possibility that F contracted gonorrhoea via fomite transfer was inconsistent with the totality of the medical evidence. The judge failed to factor the unlikelihood of fomite transmission into his overall analysis. He attached excessive weight to his finding that it was "not impossible".
- Under the second ground, the local authority did not suggest that the judge failed to address the "wider canvas" evidence. Its complaint was as to the weight he attached to the findings he made about it. Again, I bear in mind the restraint which an appellate court must show when invited to interfere with a trial judge's findings. This applies with particular force when considering a judge's findings about the credibility of a witness. In this case, however, there was a flaw in the judge's treatment of the lies told by X.
- When considering whether a child has been abused and/or the identity of the perpetrator of abuse, a deliberate lie on a material issue may be evidence which supports a finding, although in deciding the weight to be attached to such a lie the court must consider the totality of the evidence, including any explanation given for the lie, and bear in mind that people tell lies for many reasons. In this case, the judge quoted the passage from the judgment of Lord Lane CJ in R v Lucas [1981] QB 720 from which this principle is derived, but his application of the principle was flawed. He found that X had lied in his evidence about when he discovered he was suffering from gonorrhoea. That lie was plainly capable of supporting the local authority's case that F had been infected by X through an act of abuse. But the judge concluded, without explaining why, that it was "likely that X made up the story to give a reason for the infection being on the toilet seat or on towels". He decided that X "has created a narrative which he thinks would tie in with the timings of the discovery of symptoms in F" without explaining why he discounted the possibility that the reason for the false narrative was to conceal the fact that he had abused the child. His ultimate conclusion on this part of the evidence was that "the fact that X has lied does not of itself negate the possibility of F having become infected by reason of X's lack of personal hygiene." But as already noted there was no evidence to support this possibility other than the expert evidence that fomite transmission "cannot be totally excluded … due to lack of robust published research evidence". In so far as there was a possibility of fomite transmission, it is right that the lie did not "negate" it. But the lie was plainly capable of supporting, and arguably more consistent with, the expert evidence that F's infection was likely to have been contracted through sexual abuse and a finding that the perpetrator of that abuse was X. The judge failed to explain why he discounted this explanation.
- The third flaw in the judge's analysis was his misinterpretation, or mistaken application, of my judgment in Re A, B and C. That case also involved allegations that a child had been infected with gonorrhoea thorough sexual abuse and the suggestion that the infection could have been contracted through fomite transmission in a bathroom. The principal issue arising on appeal was the judge's finding as to the perpetrator. Amongst a number of submissions on behalf of the parents was an argument advanced by the mother's counsel (Nicholas Stonor KC and Ruth Phillips), based on a passage in the first instance judgment in which the judge said that "despite the parents' evidence they cannot be telling the truth because the presence of gonorrhoea is itself evidence of abuse". At paragraph 31 of my judgment, I recorded counsel's submission:
"They submitted that this demonstrated that the judge had been drawn into error because her perception of the expert evidence was that there was a presumption that the presence of gonorrhoea in itself evidences sexual abuse. It was submitted that this amounted to a reversal of the burden of proof because it required the parents to rebut the presumption by establishing an innocent mode of transmission."
- Building on that argument, Mr Stonor had formulated the further or alternative submission summarised at paragraph 33 of the judgment in Re A, B and C, that
"by formulating a presumption that the presence of gonorrhoea is in itself evidence of sexual abuse, the court prevented itself from considering each piece of evidence in the context of all of the other evidence and therefore did not undertake an overview of the totality of the evidence in reaching its conclusion. A proper survey of the wider canvas would have shown that the presence of gonorrhoea was the only evidence of sexual abuse. All the other features pointed the other way."
Developing that submission, Mr Stonor had proceeded to identify a number of features in the evidence which, he said, "pointed the other way" and which I recited in the following paragraph of the judgment.
- It was in that context that, when analysing the submissions at the end of the judgment, I made the observations at paragraph 53 which were cited by the judge in the present case when setting out the relevant law, concluding that the judge in that case had concluded wrongly on the medical evidence that the mere presence of gonorrhoea in the child was determinative of sexual abuse.
- I accept that my judgment in Re A, B and C could have been expressed with greater clarity, but for whatever reason the judge's reliance on it in the present case led him into error. He seemingly misconstrued paragraph 33 as representing my conclusion as opposed to merely a summary of counsel's submissions. It was counsel who contended that "a proper survey of the wider canvas would have shown that the presence of gonorrhoea was the only evidence of sexual abuse" and that "all the other features pointed the other way".
- Furthermore, and more worryingly, the judge in the present case elevated the list of factors identified by counsel in Re A, B and C and summarised in paragraph 34 of the judgment in that case into a sort of checklist against which the evidence in the present case could be evaluated. The list set out in paragraph 34 of the judgment was only a list drawn by counsel from the evidence in that case. It was not a checklist of factors which might be generally relevant in cases of this sort. Whilst there may be similarities between cases, each case turns on its own facts. In using the list drawn by counsel in Re A, B and C as the basis of his analysis of the facts in the present case, the judge overlooked a number of factors which supported the local authority's case that the infection had been contracted as a result of abuse, including the lies told by X. His analysis of the sexual abuse allegations ended abruptly without any proper attempt at balancing the totality of the evidence.
- In Re A, B and C the appeal was allowed inter alia on the ground that the judge failed to give adequate consideration to the wider canvas of evidence and in effect determined on the medical evidence alone that the child was sexually abused. In the present case, the judge failed to give adequate consideration to the expert opinion that the likely cause of the child's infection was sexual abuse and to the wider canvas evidence which supported that explanation. Instead, he erroneously focused on the possibility of fomite transmission and attached weight only to the factors pointing away from sexual abuse.
- It was for those reasons that I concluded that the appeal should be allowed and the case remitted for a rehearing of the fact-finding hearing.
- I stress that I am not indicating any view as to the outcome of that rehearing which will be a matter for the next judge to determine on the totality of the evidence and submissions then put before the court, which may well include evidence and submissions on a range of matters not considered at the first hearing.
LORD JUSTICE LEWIS
- I agree.
LADY JUSTICE MACUR
- I also agree.