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

The judgment is lengthy and detailed; the Judge distilled a great deal of oral and written evidence (the documents filed for the hearing had exceeded 3,000 pages). The Judge addressed himself appropriately as to the law, citing a number of key authorities in the area; he concluded his review of the legal principles by reminding himself, correctly in my view, that:

“The judgements to which I have referred make it clear that the greatest of care needs to be taken if the risk of obtaining unreliable evidence from a child is to be minimised”.

The Judge summarised the evidence of each of the witnesses who had given oral evidence, one by one, before turning to his assessment of that evidence and then the central allegations, which he took in turn. For the purposes of this appeal, I focus on six aspects of the judgment:

(i) Family history. Early in his judgment, the Judge referenced the fact that “several generations of the maternal family have been sexually abused and have gone on to perpetrate abuse themselves”. He later described how “issues of risk are woven throughout the maternal familial structure”. The Judge later explained that “specific findings” had been made by HHJ Lopez about CH as a victim of serious sexual abuse from his older brother, and the fact that his parents (the maternal grandparents of the subject children) had failed to protect him.

Later in his judgment, when introducing his review and analysis of the evidence specific to the allegations against CH (which become finding 3), the Judge said this:

“There is, as the Guardian submits, a backdrop of troubling inappropriate sexualised behaviour in CH’s past spread across several years. Whilst that history is not determinative of the allegations in issue, the court is entitled to consider it as part of the wider evidential canvas. I have already referred to the judgment of his Honour Judge Lopez dated 27 October 2017 in which there is reference to concerns regarding inappropriate behaviour demonstrated by CH since 2008, and the sexual abuse of CH perpetrated by his brother. On any view CH has had a difficult and traumatic childhood.”. (Emphasis by underlining added).

(ii) Judge’s assessment of credibility. The Judge formed broadly negative assessments of the mother and CH as historians; his assessment of the father was mixed. He referenced “inconsistencies” in the evidence of all three, before adding:

“Although the overall thrust of the father’s evidence was that he denies the allegations of sexual harm, there are aspect of the father’s evidence that I find were credible concerning the arguments between him and mother regarding the extent to which mother wished to maintain contact between the children, the maternal grandparents and CH. CH is a very vulnerable witness and although there are aspects of his evidence which I am unable to accept, he spoke clearly about his love for his sister and the contact he continues to have with her family”.

The Judge went on to find that both parents “… have not been entirely honest about the extent to which they have allowed the children to have unsupervised time with the maternal grandparents and CH”.

He recorded CH’s denials of abuse of H, and added:

“CH is clearly vulnerable and I have had that vulnerability in mind when considering his evidence. However, I do not accept that he is an honest and credible witness. He has in the past, as he accepts, asked others to lie for him and faced with what is a very serious allegation made against him, I do not accept that he is being truthful in his response”.

Later the Judge added:

“I do not accept the evidence of the mother and father that CH has not had any unsupervised contact with the children since the sexual risk order was made. I find that father was being entirely honest when he acknowledged in his evidence that he was uncomfortable about the involvement of CH in the children's lives because of what he had been told… I accept [the father’s] evidence that mother struggled with understanding the risks [posed by CH]…” (Emphasis by underlining added).

This point was repeated later in the judgment, when the father was said to have been “entirely candid when he said that he was uncomfortable about the involvement of CH in the children's lives because of what he had been told by [the social worker]”.

I should add that the Judge found the nursery worker who reported that she had seen the maternal grandmother and R together on 27 October 2023 to be “straightforward, candid and honest”; she had been “clear and consistent” (a phrase used to describe her evidence repeatedly in the judgment) in her recall of what she had seen as she drove slowly passed them; this assessment of credibility was central to his conclusions on finding 10.

(iii) ABE interviews: I have mentioned above (see §16 and §22) that H was interviewed in purported compliance with the ABE Guidance twice in April 2024. The Judge recorded the investigating police officer’s concession that the “practices surrounding” the ABE interviews were “sub-optimal”. The Judge gave himself a perfectly proper self-direction thus:

“… this is regrettably a case in which the guidance set out in "Achieving Best Evidence in Criminal Proceedings Guidance on interviewing victims and witnesses and guidance on using special measures" ("ABE") was not followed by those charged with caring for the children and investigating the allegations that have been made by H. H was almost four years old when the children were placed in the care of foster carers. His recall of events required care and any delay between an event he was recalling, at that age, may have influenced the accuracy of his recall. Amongst other failures, unfortunately, particularly in respect of the allegations made by H against the parents, there is very little evidence of any clear and full records of questions that he was asked and the answers he gave” (Emphasis by underlining added).

The Judge described in some detail the opening sequence of the ABE interview on 5 April 2024, highlighting material breaches of the ABE guidance before concluding “the weight I attach to what was said by H is extremely limited”.

The Judge referenced the fact that part-way through the second ABE interview on 28 April 2024, H had left the room and that “there are discussions outside the room during which it seems H is promised a visit to the toy shop”. The Judge added:

“… the way in which [the police officer] conducted the investigation undermined the reliability of what H is recorded as having said during the ABE interview such that I attach only very little weight to it”.

(iv) Foster carer recordings: Given the deficiencies of the professional investigation, the Local Authority was, in the end, heavily reliant on the evidence of the foster mother in its pursuit of findings.

Having acknowledged the inexperience of the foster carers, the Judge recorded the foster mother’s concession that she felt “under prepared” in relation to record keeping, and that she and her husband had been “learning on the job”. The Judge remarked that this lack of experience and ability “inevitably impacts on the weight I can properly attach to her evidence”. With regard to H’s allegation of sexual abuse by the father (11 December 2023 – see §14 above), the Judge said that he could “… attach only limited weight to [the foster mother’s] evidence in this regard”, given her “limited training about how to address allegations of sexual abuse or harm” and her failure to adopt “the proper approach to record keeping”. He added:

“The form of the incident log and absence of a full record makes it impossible to assess the extent to which, if any at all, the ABE guidance was followed. … Although I have every sympathy because of the inexperience of the foster carers, the failure to follow even anything close to the ABE guidance, is in my judgment forensically significant”.

In relation to H’s allegation of inappropriate touching by the mother (29 January 2024 – see §15 above), the Judge remarked that “I find [the foster mother] did not adopt the proper approach to record keeping. That is unfortunate because … there are several differences in the account of the foster carer”. He added:

“… the difficulty with these varying accounts is that I have no clear account of the question that H was asked and precisely what H said. Furthermore, what is clear is that in the statement [the foster mother] made to the police on 15 March 2024 some six weeks after H first made the allegation, there is an account of further discussion between H and [the foster mother] that does not feature in her initial notes. [The foster mother] acknowledged questioning H in her oral evidence… Furthermore, it appears that the following day [the foster mother] asked H to repeat the story to her husband and daughter. Beyond [the foster mother] wanting H to repeat what he had told her the previous evening, [the foster mother] was unable to explain why she asked H to repeat “the story” to her husband and daughter. If the aim of that exercise was to simply get H to repeat what he had said to [the foster mother] earlier, it was misguided.”.

The Judge rightly recorded in his judgment that asking a child to repeat an allegation was “in breach of the [ABE] guidance”.

The foster mother’s incident log of 21 April 2024 is, as I have mentioned, reproduced in full into the judgment and was pivotal to the Judge’s finding against CH. The Judge went on to reproduce into his judgment, in the same section, an extract from the police statement made by the foster mother’s daughter. Although the Judge rightly recorded that the foster mother was “misguided” to ask H to repeat allegations (see §42 above), the Judge did not, as it happens, identify a number of discrepancies between the two adults’ accounts which are evident from the extracts which the Judge had explicitly incorporated into his judgment (see §71 below).

As to the foster mother’s recordings for 21 April 2024, the Judge made these crucial findings:

“Although I accept that [the foster mother] was ill-equipped, at least initially because of the limited training she had received, she was as she said in evidence and I accept, ‘learning on the job’. The notes for the allegation made on 21 April 2024 themselves demonstrate a significant improvement in her recording of events”.

The Judge went on to explain what he meant by this:

“The incident log does not follow the format of an interview recordwith a sequential note of the question asked and the answer provided. That would be a counsel of perfection and it is unrealistic in my judgment to expect that a foster carer would record such a conversation in the same way as specifically trained professionals, particularly in the context of what was I find, a ‘chat’ that was instigated by H as [the foster mother] said, without any forewarning”.

And then:

“When reading the incident log as a whole I find, [the foster carer] sets out, verbatim, the questions she asked and in quotes, recorded the reply by H. This is not a summary…” [Emphasis in each case by underlining added].

The Judge concluded his review of the foster mother’s evidence in relation to the 21 April 2024 in this way:

“I have carefully considered whether any (sic) breaches of good practice or failure to follow the relevant guidance amounted to a serious breach of the guidance such that reliability of the log and the allegation recorded is undermined. I find that the breaches do not undermine the specific allegation recorded by [the foster carer] and I attach due weight to what was said by H to [the foster carer].”

(v) H’s reliability: The Judge rightly recorded in several places in his judgment that H had a history of making false statements and allegations. He specifically referenced that:

When considering the allegations which led to finding 3, the Judge said this:

“In considering the allegations made against CH I have had in mind throughout that H has made allegations against lots of people including his parents. I have not found the allegations made by H against his parents to have been proved by the local authority for the reasons I have set out and I do not repeat. [The foster mother] confirmed in her oral evidence that H has been known to make allegations against anyone he meets over silly little things, such as an adult having pushed him, that she knew were not true. Allegations would be made by H regularly. I have had in mind throughout the possibility that the allegations made against CH might also have been untrue” (Emphasis by underlining added).

The Judge was persuaded as to the truth of the allegation made by H against CH (finding 3) at least in part because of “a level of detail that was given by H to [the foster mother] that is worthy of note”. In this regard, he referred to the location of the alleged abuse (the toilet), the reference to H not wanting “wee in my mouth”, and the reactions of the mother and grandmother when H allegedly reported to them what had happened.

(vi) Photographs: The Judge placed reliance on photographic evidence of the children in Hallowe’en costumes as probative of the allegation against CH. It had been the parents’ evidence that the children had gone ‘trick or treating’ on Hallowe’en in 2023; CH had not been living at his parents’ home in October 2022, so that could not have been relevant to H’s allegation of abuse at the maternal grandparents’ home at a Hallowe’en party in that year. The Judge observed:

“I find the children did dress up in Hallowe’en costumes on Hallowe’en 2023. The evidence of mother was clear that the maternal grandparents threw a Hallowe’en party in 2022 that she attended with father and the children. When asked whether the family met for Hallowe’en in 2023, mother sought to evade the question and vaguely responded that she was with father, “[A], [H], [L] and the kids, we didn’t even go to my mum and dads”. Father said he could not recall if the children went to their grandparents. I find they did go to their grandparents and the parents have tried to portray that they did not, because of the possibility that CH may have had the opportunity to harm H in the way that he claims”.

(vii) Conclusions: The Judge took each of the allegations of fact from the schedule of proposed findings separately, reaching conclusions on each individually. I discuss only those which are relevant to our decision on this appeal.

In summarising his conclusions on finding 3, the Judge described how he had had regard to “the wide canvas of evidence”. He concluded that “at Hallowe’en 2023, the children were taken to a Hallowe’en party at the house of the maternal grandparents and that CH sexually abused H in the way alleged by H on 21 April 2024.” The Judge then listed the five discrete and specific allegations of sexually abusive conduct; he converted H’s allegation of “he put his hand up my bum” and “grabbed up his bottom hard” (see §19 above) into a finding that CH had “penetrat[ed] his anus with his fingers/hand and/or plac[ed] his hand between his buttocks”.

In his judgment, the Judge described evidence which strongly and unmistakeably indicated a range of sexually disinhibited behaviour on the part of H; this evidence informed his conclusions which led to finding 4. Somewhat surprisingly, the ‘particulars’ listed in finding 4 (see §56(ii) below) do not include an unchallenged incident described by the Judge in a report from H’s school thus:

“H pulled his trousers and pants down and was showing people his private parts. H was then playing with a truck when he started ramming it repeatedly into his groin and said, "it's sucking my cock"”.

Additionally the Judge recorded evidence of H using explicit and obscene language at school and in the foster home; the evidence was not (it appears) materially challenged. Indeed the Judge recorded the father’s acceptance that at least some of the obscene expressions were “probably picked up from the language they [the parents] used, and from others in the area where they live”. Again, surprisingly this did not become one of the particulars supporting finding 4.

In relation to finding 10, the Judge had made favourable findings about the reliability of the nursery worker’s evidence (see §35 above), which was in some respects corroborated by her proprietor and safeguarding lead at the nursery. The Judge properly set out the parents’ denial that R had been with the maternal grandmother, and their competing case about the events that day; he indicated that where there was a conflict of evidence, he preferred the evidence of the nursery worker. The backdrop to this finding is the Judge’s clear view (evidenced by a lengthy section of the judgment) which revealed that the mother had not been honest about the extent of the contact between the children and the maternal grandparents and/or CH over a number of months, and that the mother had been struggling to accept the risks posed by them. In this regard, the Judge was not entirely unsympathetic to the mother’s position:

“Given her vulnerability, it is understandable that she found it difficult to reconcile the fact that on the one had, the local authority claim her parents pose such a significant risk that they should not have any contact with the children, and yet she was allowed to remain living with them following the earlier proceedings. … [the] mother accepted that it is hard for her to hear about the risks posed by her parents because it reflects on her as a person”.