Public Law
May 2023

27 June 2023
Second appeal in a fact finding concerning sexual abuse upholds original judgment.
T (Fact-Finding: Second Appeal) [2023] EWCA Civ 475

Overview: The Court of Appeal allowed a second appeal in a fact finding made by a local authority against a decision by Circuit Judge HH Judge Greensmith. The Court of Appeal highlighted that it is an established principle that an appellate court must not interfere with findings of fact, unless compelled to do so. The fact finding concerned sexual abuse allegations made by T.

Background: The care proceedings involved four children. Initially all four children were jointly represented by a children’s guardian but it was decided that T should be separately represented by her own lawyers who she instructed directly. The fact-finding concerned allegations made by T, aged 15. T had made allegations at school, that over the course of three years her stepmother had been waking her up in the middle of the night and taking her to a car occupied by two male family friends. One man would kiss T in the front of the car while the other man had sexual intercourse with the stepmother in the back of the car. T said that the men had threatened her with violence if she said anything about it.

T was ABE interviewed and a key issue raised was the flaws within the ABE interview. In considering the allegations DDJ Hornby first considered T’s credibility. DDJ noted that T had been able to describe the two men, she knew the men’s employment and was able to describe the care. The details were not challenged by the father and stepmother. Consideration was also given to the inconsistencies and lies in the statements and evidence of the father and stepmother. Based on all the evidence the DDJ found the allegations proven.

First appeal

The stepmother appealed and put forward 4 grounds of appeal. The appeal was heard by circuit judge, HH Judge Greensmith.

  1. his analysis of T as a reliable and credible witness was flawed;
  2. he omitted evidence that undermined the reliability and credibility of the allegations;
  3. he failed to apply the Lucas direction properly and wrongly placed disproportionately significant weight on the stepmother's inconsistency;
  4. he gave inadequate reasons as to why the findings were made.

The stepmother’s appeal was upheld. The circuit judge found that the previous judge had attached too much weight to the flawed ABE. HH Judge Greensmith had made observations about the improbability that a child could be taken to a car parked in the street where sexual activity involving three adults took place on many nights over a three-year period without any reports from neighbours. He had conducted a Google search and looked at the property and that the description of the street in the deputy district judge's judgment as "narrow" was correct. In response, counsel for the local authority said that the police had conducted only limited house-to-house inquiries, to which the judge replied that he did not think it would require any such inquiries for the activity complained of to be reported to the police.

HH Judge Greensmith set aside all findings. He declined to discharge the interim care orders or to continue the orders pursuant to s 40 CA 1989 and set the matter down for a welfare hearing.

Second Appeal

The local authority appealed. Baker LJ gave the lead judgment and found that the CJ was wrong to allow the appeal on the first three grounds before him. He had failed to adopt the proper approach to the hearing of an appeal against finding of fact. It is an established principle that an appellate court must not interfere with findings of fact, unless compelled to do so. Barker LJ observed that “it is wrong for any judge to carry out his own investigations and doubly wrong for a judge to do so on appeal when the issue is whether the judge at first instance was wrong to make the findings on the evidence before him.”

“The DDJ had given a comprehensive analysis of the evidence and a detailed explanation of his reasoning, the CJ had alighted on only a few aspects of the evidence in a way that could not unfairly be described as island hopping”. Barker LJ noted that the DDJ had watched the video recording of T’s ABE interview which he subjected to a “detailed analysis.” “In contrast, Judge Greensmith, who had not seen the recording and dismissed the interview.”

Baker LJ observed that it was unclear on what basis the CJ allowed the proceedings to continue. The final care order in respect of T was made based on the findings that were being set aside, therefore, that order should have been discharged immediately. There was no basis to continue proceedings or exercise any welfare jurisdiction. Barker LJ stated that “The CJ may have been concerned about the prospect of the children returning home without preparation, but it was not lawful to continue care orders for that reason. The right course, given the local authority was considering an appeal, would have been to make interim orders under s 40.

Concluding the judgment, Baker LJ said: “I conclude that Judge Greensmith was wrong to allow the appeal on the first three grounds advanced before him. As to the fourth ground, contrary to the judgment on appeal, the deputy district judge's reasons were neither inadequate nor misguided. They accorded with his assessment of the evidence. Accordingly, I find that it was not open to the judge on appeal to set aside the findings.”

The Court of Appeal allowed the local authority’s appeal and restored the findings made by the Deputy District Judge.

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