Case Study

K (Children), Re [2019] EWCA Civ 184

The central issue of the appeal was whether the first instance judge was wrong to make

a finding that the appellant father had sexually abused his 6-year-old daughter. The father

contended that the evidence was inadequate to support the judge's findings.

The background is set out at 3-7. Broadly, in summary "Anisa" had lived with her parents

and 13-year-old sister. She made allegations of physical and sexual abuse against her

father to a teacher at her mosque which, in turn, led to referrals and the father moving

out of the family home. The Local Authority initiated care proceedings and there was a

four-day fact-finding hearing. The judge made a number of threshold findings (found at

5) but the father only sought to appeal the finding of significant sexual harm against

him.

The evidence is summarised at 8-21. There were two strands to the evidence. First, the

investigation into Anisa's statements to the teacher (parts of which were unrepeated by

Anisa and thus formed the primary evidence of the Local Authority in respect of the

sexual abuse). Notably, the judge was highly critical of the process by which Anisa's

account was investigated and a list of defects is found at 16. Second, the accounts

subsequently given by the workers who supervised the father's contact, when they each

said that they had briefly seen the father with what they thought was an erection (which

supported a finding that the father had been sexually aroused at contact).

The trial judge's reasoning is found at 22-25 and the arguments on appeal from 26-

31. The father argued that the judge went beyond what the evidence allowed including

wrongly relying upon the evidence of the teacher (see 27) and erring in using the

"speculative" and "incompatible" accounts of the contact workers to bolster her main

findings.

In largely dismissing the appeal, the court reiterated that an appellate court will rarely

contemplate reversing a trial judge's findings of primary fact before listing nine fact

specific reasons (at 33) as to why the appeal failed that rigorous hurdle. The nub being

that the judge had given herself a model legal self-direction, had applied the direction to

the evidence in a clearly reasoned judgment, there was evidence to support the judge's

findings and the judge was entitled to make the findings she did.

Thus, the appeal largely failed. The only point of departure from the judge's findings was

in respect of the finding that the father had been sexually aroused at contact. Peter

Jackson LJ concluded (at 35) that the evidence of the contact workers was too uncertain

to form a sound basis for the finding such that the finding was set aside (without,

however, tainting the judge's primary finding of sexual abuse).

Summary by Max Turnell, barrister, 1 King's Bench Walk

From the case study, please help me draft a brief introduction and also conclude if there was enough evidence to support the child's claim of being sexually abused by the father.