Introduction

The case of K & D (Children: Sexual Abuse Findings) [2025] EWCA Civ 263 presents a challenging scenario in family law and child protection proceedings. The case involves allegations of sexual abuse against a minor girl (K) and secondary harm inflicted on her younger half-sister (D) within a complicated family dynamic. Central to the disputes are the decisions rendered by the trial judge regarding the identification of the perpetrator, the interpretation of medical evidence, behavioral presentations, and the controversial implications of non-attendance by the father, identified as F.

Key parties in the case include F (the appellant and father of D), the mother, intervening parties X and Y, social work representatives, expert witnesses, and the local authority pursuing child protection measures. Amidst a background of domestic abuse allegations, complex family arrangements, and evolving contact orders, the judgment focused on establishing whether abuse had occurred, the credibility of various sources of evidence, and the appropriate legal inferences drawn from the conduct and attendance (or non-attendance) of the parties during proceedings.

Summary of the Judgment

The trial judge, in a detailed ruling delivered on 25 October 2024, concluded on the balance of probabilities that K had suffered direct sexual abuse—most likely of an anal nature—and that D had also suffered sexual harm, either by exposure or secondary contact with abusive behavior. The judge based these conclusions on a multi-faceted evaluation:

• Medical Evidence: Evidence from two separate medical examinations highlighted findings such as dynamic anal dilatation (DAD), perianal venous congestion (PVC), and possible lacerations. Expert testimony from Dr Jamieson Carter reinforced the view that, despite the possibility of alternative explanations including K's rare chromosomal abnormality, the constellation of findings was “quite strongly suggestive” of abuse.
• Behavioral Evidence: Observations by school staff and foster carers noted occurrences of sexualized behavior, genital touching, and displays of distress indicative of abuse.
• Inferences from Non-Attendance: A significant part of the appellate focus was on F’s failure to attend the final hearing and his subsequent disengagement from the proceedings. The judge inferred that his non-attendance was more consistent with an attempt to avoid cross-examination rather than a mere administrative oversight.

In addition, the trial judge carefully balanced the lack of direct disclosure by the children against the systemic challenges inherent in CSA cases. Following detailed analysis, despite dissenting submissions from F’s legal team on several grounds, the Court of Appeal ultimately dismissed the appeal, upholding the trial judge’s findings and methodology.

Analysis

Precedents Cited

Although this case represents an intricate fusion of medical, testimonial, and behavioral evidence, one notable precedent discussed was the application and analogy of Civil Procedure Rules—specifically, the reference to CPR rule 39.3. Drawing on guidance from the seminal case of Bank of Scotland v Pereira [2011] EWCA Civ 241, the judgment underscored that when a party fails to attend hearings, the prescripts governing the setting aside of judgments (modeled on FPR rule 27.5) serve to ensure that defendants are afforded an opportunity to present their case. Lord Neuberger MR’s six guidelines, particularly emphasizing that non-attendance does not preclude an appeal but does color the inferences that may be drawn against that party, played a crucial role in justifying the adverse inferences drawn from F's behavior.

Legal Reasoning

The legal reasoning of the court is multi-layered:

• Medical and Expert Evidence: The trial judge gave significant weight to the findings from the paediatric examinations and Dr Carter’s comprehensive report. Although the expert cautioned that medical evidence is only one part of the “jigsaw”, factors such as DAD, PVC, and the exclusion of alternative medical causes (e.g., chronic constipation or neurological disorders) underpinned the identification of abuse.
  Note: The judge was aware of the potential for K’s chromosomal abnormality to contribute to some findings; however, expert opinion and the absence of alternative medical explanations reinforced the abuse inference.
• Behavioral Indicators: The judge meticulously considered the children’s behaviors and testimonies from various parties. While acknowledging that children may not always disclose abuse due to fear or shame, the juxtaposition of negative behavioral expressions toward X and positive views regarding F provided additional context. However, it was the link between non-attendance and subsequent non-cooperation by F that was highly significant.
• Inferences from Procedural Non-Attendance: F’s failure to attend critical hearings was interpreted not as benign absence but as a deliberate avoidance of confrontation. Given that F had previously engaged with the system and that the threshold documents had repeatedly indicated him as a potential perpetrator, the negative inference was bolstered. The appellate court, while recognizing the contentious nature of drawing adverse inferences for non-attendance, ultimately held that in these circumstances, the procedural rule (FPR rule 27.5) provided adequately for the setting aside of any procedural defect but did not permit a wholesale reversal of evidentiary findings.

Impact

The judgment potentially sets an important precedent for both family law and child protection proceedings:

• Evaluative Framework: Future cases involving child sexual abuse will benefit from a rigorous evaluative framework that considers both medical findings and indirect behavioral evidence in a composite “jigsaw” approach. The recognition that isolated behavioral anomalies or medical signs on their own may not be decisive, but their cumulative presence can be compelling, is significant.
• Non-Attendance Implications: The ruling reinforces that a party’s non-attendance in hearings can, under appropriate jurisdictional rules, be used as evidence to infer reluctance to engage in cross-examination—a factor that may adversely affect the defense. This clarification is particularly pivotal given the sensitive nature of care proceedings where emotional and procedural complexities abound.
• Guidance for Legal Practitioners: Courts are reminded of their duty to balance respect for a party’s right to silence and procedural non‑attendance with the need to protect vulnerable children from ongoing or potential harm. It serves as a useful guide in the careful application and interpretation of FPR rule 27.5, ensuring that procedural rules do not eclipse the broader imperative of child welfare.

Complex Concepts Simplified

Several complex legal and medical concepts appear in the judgment. To simplify:

• Dynamic Anal Dilatation (DAD): This is a physical finding noted during paediatric examinations. In this case, DAD, coupled with other signs like mild perianal venous congestion, served as a red flag for possible anal abuse. Despite the possibility of alternative explanations, the absence of underlying conditions such as severe constipation made abuse the most plausible explanation.
• Non-Attendance and Adverse Inferences: A key issue was F’s non-attendance during hearings. The legal principle here is that if a party does not appear without a sufficient and promptly communicated reason, the court may infer that this absence was motivated by a desire to avoid challenging cross‑examination. The application of FPR rule 27.5 provides a structured remedy for such situations, ensuring that the opportunity to present evidence is preserved while still acknowledging the risks of non‑attendance.
• Evidence “Jigsaw”: This metaphor underscores that no single piece of evidence (medical, behavioral, or testimonial) is solely determinative. Rather, it is the assembly of various evidence pieces that creates a convincing narrative. The judge explicitly noted that each piece – even if ambiguous in isolation – can collectively produce a “compelling picture” when the totality of the evidence is put together.

Conclusion

The K & D judgment is a landmark decision that underscores the necessity for courts to carefully weigh both direct medical evidence and collateral behavioral indicators in cases of alleged child sexual abuse. The detailed analysis and deference given to the expert testimony in combination with a cautious yet robust assessment of procedural non‑attendance illustrates a nuanced approach to evaluating evidence.

Key takeaways include:

• The importance of a holistic assessment wherein multiple, though perhaps individually ambiguous, pieces of evidence are collectively considered.
• The reaffirmation that non-attendance, when unexplained or inadequately justified, can have serious inferential consequences and may undermine a party’s credibility.
• Guidance for future proceedings that such inferences, when supported by corroborative medical and behavioral evidence, are valid and can be determinative in safeguarding vulnerable children.

Ultimately, the Court of Appeal’s decision to dismiss F’s appeal and uphold the trial judge’s findings reflects a careful balance between adherence to procedural rules and the imperative to protect children from ongoing harm. This judgment will no doubt shape subsequent case law in the sphere of child protection and the application of family procedure rules in contexts involving severe allegations of abuse.