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England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> M (A Child)  EWCA Civ 245 (19 December 2017)
Cite as:  EWCA Civ 245
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B e f o r e :
LORD JUSTICE BEATSON
LORD JUSTICE PETER JACKSON
|M (A CHILD)|
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MR SAM MOMTAZ QC and MISS FINOLA MOORE (instructed by London Borough of Hackney) appeared on behalf of the Respondent
Crown Copyright ©
LORD JUSTICE PETER JACKSON:
"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.
"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)."
"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."
"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."
LORD JUSTICE BEATSON:
LORD JUSTICE MCFARLANE:
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