Case No:   B4/2017/2814
Neutral Citation Number: [2017] EWCA Civ 2445
IN THE COURT OF APPEAL (CIVIL DIVISION)
The Royal Courts of Justice
Strand
London
WC2A 2LL 

Date: Tuesday, 19 December 2017
BEFORE:

LORD JUSTICE MCFARLANE
LORD JUSTICE BEATSON
LORD JUSTICE PETER JACKSON

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BETWEEN:

M (A CHILD)

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MISS ANNA McKENNA QC and MISS MARCIA HYDE (instructed by Freemans Solicitors) appeared on behalf of the Applicant
MR SAM MOMTAZ QC and MISS FINOLA MOORE (instructed by London Borough of Hackney) appeared on behalf of the Respondent
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JUDGMENT (Approved)

If this transcript is to be reported or published, there is a requirement to ensure that no reporting restriction will be breached. This is particularly important in relation to any case involving a sexual offence, where the victim is guaranteed lifetime anonymity (Sexual Offences (Amendment) Act 1992), or where an order has been made in relation to a young person.
LORD JUSTICE PETER JACKSON:  
1.	This is an appeal from a finding of fact made by Her Honour Judge Boye sitting at the Central Family Court on 18 September 2017 at the end of a ten-day fact finding hearing in proceedings involving six children.
2.	The judge found that Mr H (as I will call him) who is the husband of the children’s mother and father of the youngest child, had sexually abused another child (who I will name K) twice since 2012.  K (who was 9 at the time of the allegations) is the granddaughter of a woman with whom Mr H had, at one time, lived.  The judge rejected other allegations made against Mr H except insofar as one of them related to a conviction for possession of extreme pornography, found during the police investigation into K’s allegations.  
3.	The core of this appeal (argued by Miss Anna McKenna QC and Miss Marcia Hyde, who both appeared below) is that the judge should not have made a finding of non-penetrative sexual abuse against Mr H when, on one view, K’s allegations at her ABE interview had amounted to a clear allegation of penetrative abuse.
4.	The appeal is opposed by the Local Authority who seek to uphold the judge’s finding.  The children’s guardian has not appeared on this appeal, but does not seek to overturn the finding.  Other parties to the proceedings have not taken part.  
5.	The matter is due to return before Her Honour Judge Boye in January 2018 for a welfare hearing in relation to all of the children of this family.  The finding of fact that has been made is of importance to that welfare decision. Permission to appeal was granted by Moylan LJ in order to allow Mr H to argue as to whether the judge’s reasons were sufficient.  
6.	I briefly outlined the chronology.  In 2001, Mr H came to this country from abroad.  The following year he met the maternal grandmother of two children, one of them being the complainant, K.  K was born in 2004 and her cousin (the other child concerned in the allegations) was born in the following year.  In 2008, Mr H moved into the grandmother’s home and there he lived until 2013 when he was detained by immigration services and found himself in detention for some weeks.  
7.	It was at that point that the allegations arose.  
8.	The mother of K is KD and she and K, together with a friend known as JC, and that friend’s daughter, J, and the other child, O, were making what was a second visit to Mr H in detention.  During the journey, allegations were made by K, firstly to JC and secondly, to her mother, which set off the investigation with which we are concerned.
9.	Shortly after that a series of telephone calls took place between adult family members and Mr H, who was in detention, and those adult family members in various ways describe Mr H making admissions to having touched K, but denials of other behaviour.
10.	On 24 December 2013, KD took her daughter, K, to the police station where a statement was made, and on 27 December an ABE interview of K was carried out.  There was an ABE interview of the other child at a subsequent stage.  
11.	In February 2014, Mr H was released and he was then interviewed several times about matters, including K’s allegation. 
12.	In September 2014, Mr H married the mother of the children who are the subject of these proceedings.  However, in January 2016 he was arrested (belatedly) in respect of K’s allegations and other matters.  He was remanded in custody and remained there until the conclusion of a two-week criminal trial which occurred in July 2016.  The only matter for which he was convicted by the jury was the allegation in relation to pornography, for which he received a four month sentence of imprisonment.  On release, he returned to the home of the mother of the children.  That led to the issuing of care proceedings and the children were removed into foster care in September 2016.
13.	In April of this year a child was born to Mr H and the older children’s mother.  He himself is now subject to an interim care order.  There have been a series of interim stages in the proceedings that it is unnecessary to describe.  What is important is that on 21 August, Her Honour Judge Boye began the fact-finding hearing.  She heard from all the significant family members and she viewed the ABE interview with K, among other recorded material.  She handed down a draft judgment on 12 September and a perfected judgment accompanied by answers to points of clarification requested by some of the parties.  The appellant’s notice was duly filed and the matter has now come on fairly swiftly for determination.
14.	I turn next to the nature of the allegations in broad terms.  The first evidence relates to the visit that was being intended to be made to Mr H in detention.  The family had travelled as far as Gatwick and were about to get transport to the detention centre when, as the judge describes, this happened.  While they were waiting for transport, K’s mother went to look for the bus, leaving the children with JC.  According to JC, “out of the blue” K said to her:  “Aunty, H used to touch me up.  He used to feel me up.”  JC then alerted K’s mother and K then repeated what she had said and the mother asked why she had not told her before.  K said that H had told her not to.
15.	The family then discontinued its trip to the detention centre and returned home.  The judge describes how a conversation took place in which K then said to her mother that H would “touch her fanny” and her “breasts” and “rub his willy against her bum.”  She pointed to her bottom and the part where the cheeks of her bottom separate and stated that H would do this until the milky stuff came.”
16.	On 24 December, the mother took K to the police station.  She (the mother) was in a very distressed state and K is described as having been particularly anxious.  They were fortunate to be met by a capable and meticulous officer who kept full notes that were available to the judge and who gave evidence.
17.	Briefly, on that occasion, K told the police officer that Mr H had “put his thing on my bum where I poo out of it.”  On 27 December an ABE interview took place conducted by a different officer.  It is unfortunately common ground that the interview was overlong and not skilfully conducted, and during the course of the interview, K repeatedly said that “Mr H had put his thing in her bum and that white thing had come out.”  
18.	The judge devoted several paragraphs to an analysis of this interview which she had, of course, viewed.  What she says about it is this:  
	“The interview is poorly conducted and opportunities are lost to ask follow-up questions.  The child is forced to repeat the same information, no doubt wondering why she is not being understood. The interview lasts an-hour-and-a-half and it comes at the end of a long wait.
	Despite the deficiencies in the interview, K’s disclosures are consistent with her answers to PC H.  She provides a context and a detailed description for each assault.  She describes her clothing, the way it is pulled down and the positioning of Mr H in relation to her. There is a convincing narrative with comments like her escaping going upstairs and Mr H “kissing his teeth,” which has a ring of truth.  She describes a feeling of sadness at the realisation that it was not just a tickling game.  More importantly, she describes feelings and the sensation of “it” feeling really, really hot and it felt like poo.”     
This ABE interview is the only real account that K has been asked to give of her experiences.  
19.	Next in time, on 27 December, K’s mother (KD) made a witness statement in which she set out that K had described to her abuse of a non-penetrative kind.  That account is one that she confirmed when she gave evidence to the crown court in due course.  I turn then to the evidence collected from the friend, JC, who had been at Gatwick.  She made statements in August 2014, March 2016 and gave oral evidence at the crown court trial. That was to the effect that K had complained of Mr H “touching her up.”  However, in the family court, she further stated that K had told her that Mr H had “put his thingy on her.”  
20.	It is also a feature of the evidence that the judge heard that witnesses said that Mr H had admitted touching K when it was put to him on the telephone.  This is said to have been the case by the grandmother on 22 December and by KD and her sister KN on 23 December.   
21.	The way in which the case was put by the Local Authority against Mr H had evolved, particularly as a result of the crown court trial and the evidence given in the first days of the hearing by K’s mother.  The criminal charge of rape had been withdrawn on the direction of the judge in the light of K’s evidence that no allegation of penetration had been made by her daughter.  The Local Authority’s case in the family court had been put in the alternative at the outset.  Without going into more detail, it was either penetration or the rubbing of Mr H’s penis on K’s bottom.  However, after K’s mother had given her evidence only the second alternative was pursued.  That was then known to Mr H by the time he came to give his evidence.
22.	The judgment was handed down in written form and is supplemented by certain clarifications in response to a number of questions that were put.  It runs to some 15 pages, 63 paragraphs. The opening 25 paragraphs relate to the background and the allegations that had been made together with an account of the applicable law. There is no complaint in respect of that part of the judgment.
23.	There is then a description by the judge of the range of allegations that were then made against Mr H.  Of the seven allegations, the first two did not directly relate to him.  The last concerned the pornography conviction.  Three of the other four concerned abuse of other children. In one case involving K herself it was allegation number 3 that I have already described as having been put in the alternative that forms the issue for this appeal and which led to the judge making the finding.
24.	During the course of her judgment between paragraphs 35 and 52, the judge makes a number of findings.  She found the police officer who took the initial complaint to be a reliable and impressive witness.  As to the ABE interview, she said this:  “K is childish in her recounting of an event and just does not have the vocabulary to describe what it is.”  And again:  “K is describing experiences that she has had.”
25.	As to K’s mother, she found that she had not changed her story and that she had never made an allegation that K had been only raped.  She found her to be a straightforward witness.  She found the aunt KN to be honest and suggestable.  She accepted the evidence that Mr H had made admissions to the family, although she found he had no intention of doing so to authority.  She found that the allegations had not been manufactured and rejected Mr H’s allegation that they had.  She thought the family had no motive for doing so and showed no malice.
26.	I refer to four matters which the judge clarified in response, particularly, to requests on behalf of Mr H.  Some of the questions for clarification are not particularly easy to understand, but at all events, the judge added to her judgment in these terms:
	“The criminal charge is not a matter for the family court.  As I said in the judgment, it is likely that the original charge was placed on a misunderstanding as the allegation made was not of anal rape. Then this court does not characterise this assault by Mr H on the child to be lesser conduct. That is a criminal concept. 
	The findings sought by the Local Authority is serious and significant.  Then K was 9 and had no experience of anal intercourse or the vocabulary to accurately distinguish it from the description she gave her mother of ejaculation between her bottom cheeks.  I do not accept that she would understand that the term “in” her bum was different. I do not accept that she was alleging that Mr H put his penis into her anus. 
	I have dealt with the deficiencies in the ABE process (paras 37 and 41).  I have considered K’s descriptions (paras 37 to 41) and concluded that she is describing experiences that she has had. The deficiencies do not undermine the essential truth of what K is saying.
	It is not for Mr H to disprove the Local Authority’s case and I have not approached the evidence in that way.  I considered all matters that Mr H put before the court in evidence, including the case as to fabrication.  I concluded that the counter-argument of fabrication was unlikely to be true for the reasons set out in the judgment (paras 51-52).”
27.	I come now to the appeal to this court.  As drafted, they appear in these terms under three grounds: 
	“Ground 1:  The learned judge made a finding which she was not entitled to make and which was not open to her to make on a proper analysis of the evidence in that she wrongly substituted the allegation the child had made during her ABE with one that the child’s mother had alleged the child had made.  The learned judge failed to provide any or any sufficient evidential basis for so doing, either by way of primary evidence or by making inferences that could be properly drawn from the evidence.
	Ground 2:  The learned judge failed sufficiently: (a) to analyse the evidence of the complainant child and her mother, KD; and (b) to take into account the errors in the child’s ABE procedure and in the police investigation/assessment.
	Ground 3:  The learned judge failed to sufficiently engage with, assess and scrutinise the wider evidence to the extent that the findings she made is unsafe.” 
28.	In argument, Miss McKenna developed ground 1 in a way that, in effect, argued that the judge should not have made the finding that she did, rather than the opening argument which is that she could not have done.  Miss McKenna makes these particular points, of which the first is, in my view, by far the most important.  She says that the judge should not have said that K’s allegations had been misunderstood thus leading to heavy criminal proceedings.  She submits that K was clearly alleging penetrative abuse in her interview. There could be no “misunderstanding.”  There is a stark difference between “in” and “on.”  So significant is this difference that it should have led the judge not to be satisfied of the truth of the allegations.  In effect, she found Mr H guilty of something that K had not herself alleged.  
29.	Taking then a number of the subsidiary arguments, Miss McKenna argues that the judge should have more closely analysed the change in JC’s evidence; that she should have made a proper evaluation of Mr H, who had given evidence for some four hours, making a consistent denial.  He, says Miss McKenna, is entitled to understand what the judge had made of him.  Next, she should have made a closer assessment of K herself.  Then the judge should have analysed why the crown court trial had led to an acquittal in distinction to her own finding; and finally, the judge should have looked more closely at the conclusion that no finding could be made on count 4 in which K had been, to an extent, concerned, yet went on to make a finding on allegation number 3.
30.	In response, Mr Sam Momtaz QC, who appears today leading trial counsel Miss Finola Moore, makes these submissions.  The judge, he says, had clear evidence of what the child said and evidence of admissions that she was entitled to accept.  She had the advantage of seeing the witnesses who were consistent in their account, and of viewing the ABE interview.  No application had been made for K to give evidence in the family court; and lastly, he says that many of the points raised on behalf of Mr H on this appeal had not been put to the judge, at least, not in quite the same way.
31.	The obligation on a judge in these circumstances was set out by Black LJ at paragraph 56 of her judgment in Re Jane (A Child) (Care Proceedings: Adequacy of Judge’s Findings and Reasoning) [2013] EWCA Civ. 1685. She said this:
	“I have already remarked that the judge’s judgment is short… However, although he kept the judgment short, the judge gave clear signposts to the evidence that supported his conclusions… It is not incumbent on a judge to replicate all the evidence in his judgment provided that he identifies sufficiently the evidence he has accepted; what he takes from it and what findings he makes based upon it.  In my view, this judge did that and, taken as a whole, his judgment clearly shows that he engaged with the essence of the case and directed his mind to and answered the key questions.  We can see from it why it was that he made the orders that he did.”   
32.	The judgment in this case is not a lengthy one and it is not a closely analytical one.  However, in my view, applying the appropriate standard, it withstands the forensic scrutiny that Miss McKenna has given it.  On the central point, the judge had, in the ABE interview, K’s clear account of seriously sexually abusive behaviour by Mr H, and she assessed it to be true.  She was entitled to find that K was describing an unfamiliar event in a childlike way and that her allegation was consistent and contained telling detail.  She was also in a good position to evaluate whether there was a serious discrepancy between the account given by K in her ABE interview and that understood by others, particularly her mother; she found that there was not and nothing in the submissions made today persuades me that she was wrong.
33.	I also note that although the allegation was not for Mr H to disprove, he forewent the opportunity to pursue this point in the crown court where K was not cross-examined about this, and also before the family court, where she might have been called to give evidence herself.
34.	As to the evidence from the adults, its real significance was firstly on the question of whether they had motive to coach K to make false allegations; and secondly, whether their distress had in some way contaminated her evidence.  As to the first possibility, the judge found it not to be so and as to the second, she was alert to this danger.  It had led her to decline to make a finding in relation to allegation number 4.  So, with those findings, Mr H’s case that this was, in effect, a conspiracy against him, dropped away.
35.	As to the other allegations I was not struck by the submissions regarding the evidence of JC.  In particular, the original allegation that was made by K at the station may very well have involved less serious touching than her subsequent explanations.  That would not be unusual.  As to the judge’s omission of any assessment of Mr H and his evidence, I have sympathy with this submission. The judge clearly disbelieved Mr H, as in one particular respect did the jury, but it would have been better had she stated her view explicitly, and it could have been done quite shortly.  As it is, she was not asked for clarification on this point and the inescapable inference is that, having stated that Mr H vehemently denied the charges, the judge simply did not believe his denials.  This is not, in my view, an issue that undermines her overall conclusions.
36.	As to the absence of a wider assessment of K, that no doubt arises from the fact that all the evidence before the judge showed her to be a normal child for her age.  What was more important, in my view, and what the judge clearly carried out at paragraph 43 of her judgment and the four preceding paragraphs, was a careful assessment of her account.
37.	I accept that the judge did not cross-check her conclusion against the acquittal in the crown court proceedings.  That is easily explained by the fact that penetration would have been a vital ingredient to the charge of rape and also by the different standard of proof.  The judge might have said this, but again its absence is not significant in the scheme of things.  
38.	Lastly, examination of the third and fourth allegations shows that the judge’s conclusion that no finding should be made on the fourth allegation had no real significance for her assessment of K’s credibility in relation the third allegation.
39.	For all these reasons, I conclude that the judge was able to reach the finding of fact she did on the evidence before her.  She had credible evidence from a child, a family who had not contaminated her evidence, and a perpetrator who had made admissions.  That was sufficient to underpin her conclusions and I would therefore dismiss this appeal.
LORD JUSTICE BEATSON:  
40.	I agree.
LORD JUSTICE MCFARLANE:  
41.	I also agree.

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