SR (A Child), Re, Court of Appeal - Civil Division, December 06, 2018, [2018] EWCA Civ 2738

Resolution Date:December 06, 2018
Issuing Organization:Civil Division
Actores:SR (A Child), Re
 
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Case No: B4/2018/1909

Neutral Citation Number: [2018] EWCA Civ 2738

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE FAMILY COURT AT PETERBOROUGH

HH Judge Gordon-Saker

PE17C01234

Royal Courts of Justice

Strand, London, WC2A 2LL

Date: 6 December 2018

Before :

LORD JUSTICE DAVID RICHARDS

LORD JUSTICE HENDERSON

and

LORD JUSTICE BAKER

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IN THE MATTER OF THE CHILDREN ACT 1989

AND IN THE MATTER OF SR (A CHILD)

Between :

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Rachel Langdale QC and Justin Slater (instructed by Dodds Solicitors LLP) for the Appellant

Shabnam Walji (instructed by Local Authority Solicitor) for the First Respondent

The Second and Third Respondents were neither present nor represented on the appeal

Hearing date: 6 November 2018

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JudgmentLORD JUSTICE BAKER :

  1. This is an appeal by the father of a boy, now aged 7, against a finding made in care proceedings that he sexually abused his son.

    Background

  2. S was born in August 2011. His parents were never married but his father has parental responsibility by virtue of being named on his birth certificate. After they separated some years ago, S lived with his mother but had contact with his father, including staying contact, in accordance with court orders made in private law proceedings under the Children Act 1989. Meanwhile, the mother entered into a relationship with another man, J, in the course of which she suffered violence and abuse. In 2017, that relationship came to an end and the mother and S moved away. Subsequently, however, the mother decided to return to live with J. At that point, the local authority, who had been involved with the family, decided to start care proceedings, on the grounds that S would be likely to suffer significant harm by being exposed to further domestic violence. An interim care order was made under which S was removed from his mother's care and placed in foster care.

  3. In the course of its investigations, the local authority was informed by S's foster carer that he had made comments which indicated that he might have been sexually abused by his father. This report set in train a process of investigation which lies at the heart of this appeal, the details of which are considered below.

  4. After various case management hearings, the proceedings were listed for a fact-finding hearing in July 2018 before HH Judge Gordon-Saker. In compliance with the court's direction, the local authority drafted a schedule of findings which it invited the court to make in support of its assertion that the threshold criteria under s.31(2) for making an order under Part IV of the Children Act were satisfied. Most of the findings sought were directed at the mother. It was asserted that she was proposing to return to live with J notwithstanding the history of domestic violence; that as a result, S would be exposed to the risk of physical and emotional harm; that S had suffered neglect in the mother's care; that he had not attended school; and that the mother's ability to meet S's needs had been affected by her mental health. In addition, however, the schedule also included a section alleging that S had been sexually assaulted by his father.

  5. After further negotiations between the parties on the first day of the hearing, agreement was reached on all aspects of the schedule, save for the section containing the allegations of sexual abuse, which were disputed by the father. It was accepted by the parents that the threshold under s.31 was crossed on the basis of the agreed findings. Nevertheless, the local authority continued to seek findings against the father on the sexual abuse allegations, and the judge therefore proceeded to conduct a hearing to consider those allegations. She heard oral evidence from S's foster carer, to whom it was alleged S had first made allegations against his father; from one of the social workers, H, and from both parents. At the conclusion of the evidence, and having heard submissions, she delivered a judgment in which she found the contested allegations proved and made a further case management order in preparation for a further hearing to determine the appropriate orders to make for S's welfare. She refused the father permission to appeal.

  6. On 10 August 2018, the father filed notice of appeal to this court against the findings. On 18 September, Peter Jackson LJ granted permission to appeal, observing that it was at least arguable that the evidence available to the judge was insufficient to justify a safe finding of sexually-motivated abuse.

    The allegations and the evidence of sexual abuse

  7. The relevant section in the schedule of findings stated as follows:

    ``7. The father has sexually assaulted S.

    (a) He has moved his hand backwards and forwards over S's penis.

    (b) He has kissed S's penis.

    (c) He has bitten S's penis.

    (d) He has said he loves and wants to eat S's penis/testicles.''

    The father accepted allegation 7(d), asserting that this was a common and acceptable thing to say within his culture, and did not amount to sexual abuse. He denied all other allegations.

  8. The written evidence concerning the allegations put before the judge was as follows.

  9. On 27 November 2017, after he had been in foster care for over three weeks, S had a conversation with his foster carer which she recorded that evening in a notebook. On the previous evening, she had told S that he would be having a medical appointment the following day and that he would have to get undressed. S had said that he didn't want to get undressed. At breakfast on the following morning, he said: ``I don't wanna take my pants off at the doctors.'' The foster carer had tried to reassure him, whereupon S said: ``I don't want he touch, it make me angry ... Daddy touch my willy''. The foster carer asked: ``would you like to tell me about that?'' S replied: ``he kiss it, he bite it, I don't like.'' The foster carer's note continued:

    ``I told S that it was good that he had told me this, he hadn't done anything wrong, nobody should touch his private parts like that so it was good that he had told me about it, I told him that I would have to tell C [the social worker] what he had told me .... I explained that if he had a poorly or a sore winky and he needed to show me or Mummy it, it was okay for us to take a look to see if we could make it better. S said he had had a really sore willy before, it got sore when he went down down down fast and it really hurt and it hurt in a fast car too. S then said that he touched me like that ... he demonstrated this by touching the underside of the worktop in the kitchen with the tips of his fingers on his outstretched hand with his palm facing upwards.''

  10. The foster carer's note continues with a brief description of what happened during the doctor's appointment, reporting that S repeatedly said that he did not want to take his pants off. Later that afternoon, S returned to the subject. The note continues:

    ``... after a while he asked, why is it bad people touch private parts, I explained that it was okay if he has a poorly [sic] for the doctor but other touches were not good, he said so not good that my Dad likes to eat my willy, I said No, that was wrong, that was naughty, nobody should touch your winky in that way. Reassured again that he had not been naughty, just the adult, it was good that he had told me.''

  11. The foster carer informed C about what S had said. C reported the matter to the police in an email, describing it as a ``disclosure''. On the following day, 28 November, C visited S at school. The note of her visit produced to the judge records that, after an initial chat about other matters, the conversation continued as follows:

    ``C: Can you tell me about daddy?

    S: Daddy says he likes to eat my willy, Daddy says he loves my willy.

    C: What happened next?

    S makes a fist with his hands and puts it to his willy (over his trousers) then starts making a fast back and forth motion with his hand.

    S: It makes me feel sore.

    C: Did you tell Daddy it felt sore?

    S: No I didn't tell him.

    C: What did Daddy say?

    S: I love your willy, I want to eat your willy.

    C: Did he eat your willy?

    S shakes head.

    C: When Daddy touched your willy, where were you?

    S: At Daddy's house.

    C: Was anyone else there?

    S: No just Daddy.

    C: Can you remember when it happened?

    S: A long time ago.

    The social worker's note continues by recording that S

    ``dropped to the floor on all fours and pretended to be a dog, he crawled around the room on all fours making very loud yelping noises and panting like a dog.''

    He then made some comments about the mother's boyfriend, J.

  12. The foster carer also made a note about events on 28 November. She recorded that she had told S's schoolteacher to expect a visit from his social worker ``as S had made a disclosure to me the previous evening''. When she met S after school, he told her that C and a policeman had come to see him. (In fact, there was no other evidence that a police officer had visited him at school that day.) The foster carer's note continues by recording S saying that J was a bad man, that the social worker and police officer had said that he was in trouble for being bad to his mum, and that he had told them all about it. The foster carer recorded that she "gave him a squeeze and acknowledged that he had had a tough day''.

  13. On 6 December 2017, the father was interviewed by the police about this matter. The evidence before the judge about the interview consisted of a summary contained in a police computer log, which included the following passage:

    ``D [the father] was then made aware of the actual allegation that S has said that he has touched his willy. D said that of course he touches his willy as he is his father and he has to give him a shower. D was asked ... was there any other time when he would have touched his penis and he said no. D was also told that...

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