CA-2025-001133 - [2025] EWCA Civ 993

The case has a complex background history. Fortunately, it is unnecessary for the purposes of this appeal to rehearse it at length.

The mother was just 19 years old when she gave birth to H, and is currently 25 years old. CH is one of her three younger siblings and is now 20 years old. CH and his two younger siblings were the subject of Part IV CA 1989 care proceedings which concluded in 2017; the mother was approaching adulthood at the time of those earlier proceedings and was not therefore the subject of that application. In those earlier proceedings, HHJ Lopez had found that all four siblings had been subjected to serious sexual abuse; the parents of the mother and CH (i.e., the maternal grandparents of the subject children in the current proceedings) had, in the finding of HHJ Lopez, failed to protect their children from this abuse. CH had demonstrated sexualised behaviour which was found to be likely to be attributable to his abuse. At the conclusion of those proceedings, CH and the two younger siblings were removed into foster care; the mother had remained living with her parents. On leaving care in December 2022, CH returned to live with his parents.

The mother is a vulnerable adult; she suffers with seizures and has borderline cognitive ability. When she gave her oral evidence at the fact-finding hearing, she was assisted by an intermediary. We were advised (this is not apparent from the judgment) that when giving evidence, the mother suffered from a seizure.

The father is 29 years old; he suffers from depression and anxiety. He has one other child. The mother and father are no longer in a relationship, but continue to reside together.

Like the mother, CH is a vulnerable adult, having been formally assessed with borderline intellectual functioning, Attention Deficit Hyperactivity Disorder, Reactive Attachment Disorder, and Post Traumatic Stress Disorder. He has a conviction in 2021 for taking a child without lawful authority (contrary to s.2(1)(a) Child Abduction Act 1984), and he is the subject of a Sexual Risk Order which remains in force until 2028. At earlier stages of the current proceedings, two different case management judges had questioned the proportionality of a hearing to determine findings of fact against CH as an intervenor, but on each occasion had concluded that the application should proceed. Throughout the hearing, CH had the benefit of an intermediary to assist him, and ground rules were established and maintained to enable him to participate and give evidence.

On 23 October 2023, the mother and father signed an agreement to the effect that they would not allow H and/or R to have unsupervised contact with the maternal grandparents, and no contact with CH. On 27 October 2023, a more stringent working agreement was signed which prohibited any contact whatsoever between the children and the maternal grandparents. On the very same day, a nursery worker reported that she had seen the maternal grandmother with R walking down the road. Ms Taylor KC confirmed to us that this may well have been the tipping point which prompted the launch of proceedings.

At the time the protective measures were taken in respect of the children in November 2023, it is agreed by all parties that they had suffered or were likely to suffer significant harm (the ‘threshold criteria’: section 31(2) CA 1989), on the basis that:

The children were removed into foster care together in November 2023, where they have remained. The foster carers were new to the role; H and R are their first foster children. Over the months which followed, H made a number of allegations to his foster mother of physical, sexual and emotional abuse. He identified a number of individuals as perpetrators of this abuse including his parents, CH, his foster mother, the foster mother’s daughter’s boyfriend, the social worker, nursery and school staff.

Specifically, on 11 December 2023, H made an allegation to the foster mother in which he described inappropriate sexualised behaviour by the father towards him. The foster mother did not report this to the social worker who visited the foster family on the following day, but nonetheless recorded it in an incident log. H has never repeated the allegation.

On 29 January 2024, H told the foster mother that his mother had inappropriately touched his penis. The following day, the foster mother asked H to repeat the story to her husband and daughter; he did so. H was visited by the social worker on or about 4 February 2024; the social worker (who, the Judge recorded, accepted that she had not followed “all” of the ABE Guideline principles when speaking with H on this visit) asked H, in the presence of the foster mother, to repeat the allegation. Initially H had said that he “did not know what she was talking about”; the social worker led him by asking “what happened in mummy’s bedroom”. H had then repeated the allegation.

On 5 April 2024, H was interviewed jointly by a police officer and social worker in purported compliance with the ‘Achieving Best Evidence’ (‘ABE’) Guidance (January 2022: MoJ/NPCC). We have read the transcripts. The assessment of H’s understanding of truth or lies was cursory and inconclusive; the questioning of H fails in material respects to comply with the guidance. Although H repeated in bald terms the allegation that the mother had touched him, he did not say where, nor (until asked a patently leading question) how she had touched him. H was distracted, and repeatedly left the room.

On 21 April 2024 H made further allegations to his foster mother, directly implicating CH in sexual abuse of him. This was some five months after his placement in care. The circumstances and context in which the allegations were made and recorded by the foster mother were examined at length at the hearing before the Judge, and were the focus of our review on appeal. Accordingly, I set out the facts in a little more detail.

H’s allegations were recorded in a foster carer ‘incident log’; we have seen a copy of the manuscript original. The Judge appropriately reproduced the entire note of the log in his judgment. The recording reveals that at about 5pm that evening, H apparently spontaneously told his foster mother that he wished to talk about “Uncle CH”. The foster mother records asking, “what about?”, and H reported that CH had touched his genitals “at CH’s house in the toilet”, while they were both wearing Hallowe’en costumes. In response to a direct question, H said that it made him feel “scared and sad”. H is reported to have said “he (CH) put his hand up my bum”; the foster mother recorded “I’m unsure whether he meant as in grabbed between his cheeks or penetrated”. At this point, the foster mother recorded that her adult daughter entered the room: “I asked H to tell [the daughter] the story, and he repeated it”. The foster mother told H that “nobody should touch him there” and asked H if what he had said was true, to which (the recording in the log continues): “… his eyes glazed and said, ‘I was joking’ so I left the conversation there for half an hour as I could see he was distressed”.

The incident log goes on to reveal that half an hour later, the foster mother and her daughter sat with H to do some drawing; the foster mother recorded: “we drew our house and CH’s house”, and they went on to discuss what the foster mother’s daughter would wear at Hallowe’en and how it was celebrated. H is recorded to have repeated the earlier allegations; it was said that “CH had grabbed up his bottom hard”. H is further reported to have alleged that CH had put his penis in H’s mouth, to which H had said “I don’t want wee in my mouth”.

The foster mother recorded how she had believed that when H had earlier said that he was “joking”, he had only done so as “he was worried CH would be in trouble”. The foster mother went on to record that H had allegedly told his maternal grandmother what had happened; the maternal grandmother is reported to have said “Oh CH”. H had also described a loud argument between the mother and CH after these events. The foster mother’s incident log concludes by recording her conversation with H about a holiday and “buying him a football kit”.

Some of the exchanges with H are recorded in speech marks; some are not. Ms Taylor accepted that the incident log was not a verbatim account. The foster mother’s daughter made a statement to the police about these events, which I discuss further below (see §43 and §71).

H’s allegations against CH were explored in a further ABE style interview on 28 April 2024 of which we have the transcript; as before, H was distracted and repeatedly left the room. The questioning, as previously, was leading and unskilled. H repeated some aspects of the account he had given to the foster mother on 21 April 2024, but could not say in which room the alleged abuse had occurred, or (surprisingly given that this was originally said to have happened at Hallowe’en, with H and CH both wearing costumes), when it had occurred, or whether any one else was in the house (also a surprise given that it was originally said to be a party).

On 14 May 2024, H repeated the allegations to the social worker but only (on the Judge’s finding) after the social worker had asked him “a series of leading questions”, which had had the effect (as the Judge later found) of rendering all that H had said on that day unreliable. Notably, H had told the social worker that the mother and father were “downstairs” when CH had abused him; CH lived with his parents in a bungalow.

CH has been interviewed by the police about these matters. No further action has been taken on the allegation.

A schedule of allegations was prepared for the fact-finding hearing. Several of the allegations were accepted by the parents before the hearing began. The fact-finding enquiry focused on allegations made by H that his mother, his father and CH had all separately sexually abused him.

The children have had no contact with their parents for many months; the mother had been precluded because of conditions initially imposed by police bail. The father’s contact was intermittent until April 2024 and in August 2024 an order was made by the Court under section 34(4) CA 1989 granting the local authority permission to restrict contact between the children and both parents. This lack of current contact makes all the more pressing the need for urgent resolution of this application.