FX (A Child), In the Matter of

Factual and Procedural Background

This appeal arises from a family law case concerning applications by the Father for a residence order and a contact order in respect of his daughter, FX, who was approximately 7½ years old at the time of the first instance judgment. The proceedings were brought under Article 8 of the Children (Northern Ireland) Order 1995. Prior to deciding on residence or contact, the trial judge was required to determine allegations of sexual abuse made against the Father. The parties agreed to a split hearing procedure, whereby the court first determined the material facts before addressing the welfare issues.

The hearing before the trial judge spanned two days in September 2022, during which evidence was heard from both parents and other witnesses. The judge found it more likely than not that the Father had sexually touched his daughter with his finger for the purpose of sexual gratification.

FX is the child of the married but now separated parents. They lived together briefly after FX's birth in 2015, separating in early 2016. Prior to FX's birth, the Father engaged in inappropriate text messaging with the Mother’s niece, who was a minor at the time, a fact admitted by the Father but denied as inappropriate by him. After separation, FX lived primarily with the Mother but had regular contact with the Father, often supervised by the Father’s parents. The Mother later remarried and FX now lives with her and her new husband.

The disclosures by FX of alleged sexual abuse began when she was nearly three years old in March 2018. FX made statements to the Mother and others indicating that the Father had hurt her "with his finger." Medical examinations by Dr Pilkington and later by Drs Forbes and Livingstone recorded physical observations consistent with FX's disclosures, though no definitive physical abnormalities were found. FX also made further verbal disclosures to various family members and professionals over time.

Police investigations followed, including Achieving Best Evidence (ABE) interviews with FX. The Father was interviewed twice under caution, denying all allegations and suggesting the Mother had coached the child. Criminal charges were brought but the criminal trial did not proceed due to evidential rulings excluding key evidence, including the ABE interviews and hearsay statements.

The family court hearing before McFarland J involved an agreed Statement of Facts, including the medical reports, transcripts of interviews, and admissions regarding the inappropriate text messaging. The judge made detailed findings on the credibility of the Mother and other witnesses, rejected allegations of coaching, and concluded that the Father had engaged in grooming behavior towards the niece and had sexually abused FX.

Legal Issues Presented

1. Whether the trial judge erred in law in his approach to hearsay evidence of the child's disclosures in family proceedings.
2. Whether the trial judge misinterpreted the medical evidence, particularly the examination by Dr Pilkington, to imply sexual touching rather than innocent contact.
3. Whether the judge properly assessed the reliability, credibility, and weight of the hearsay evidence in context.
4. Whether the judge's fact-finding conclusion that the Father sexually abused the child was wrong on the evidence.

Arguments of the Parties

Appellant's Arguments

• The Father contended that the trial judge misinterpreted the medical evidence, particularly the significance of the child's statement to Dr Pilkington that the Father had put his fingers "in there," arguing this did not necessarily imply sexual penetration.
• He argued that the judge failed properly to assess the hearsay evidence, including the child’s disclosures, which were made to non-independent witnesses, thereby rendering reliance on such evidence unfair.
• The Father maintained that errors were made at every stage in assessing the disclosures and that the judge's finding of sexual abuse was erroneous.
• He suggested the Mother had coached the child to make false allegations.

Respondent's Arguments

• The Mother supported the judge’s findings, emphasizing the consistency and number of disclosures made by the child to multiple people over time.
• She highlighted the medical evidence and the professional concerns raised by Dr Pilkington, who referred the matter to the police due to the nature of the child's disclosures and physical signs.
• The Mother denied any coaching or manipulation of the child to fabricate allegations.
• She argued that the judge properly applied the law relating to hearsay evidence and made a reasoned and careful assessment of all evidence.

Table of Precedents Cited

Court's Reasoning and Analysis

The Court of Appeal acknowledged the sensitive and complex nature of family proceedings involving allegations of sexual abuse. It emphasized that in family law, hearsay evidence, including the child’s disclosures, is routinely admissible under statutory provisions but must be carefully weighed for reliability and credibility.

The court reviewed the trial judge’s detailed and thorough judgment, noting that the judge had critically evaluated all evidence, including the child’s multiple consistent disclosures to various persons and the medical evidence. The judge had also assessed the credibility of the Mother and other witnesses, rejecting the Father’s suggestion of coaching.

Regarding the Father’s argument that the medical evidence was misinterpreted, the Court found no error in the judge’s evaluation. The judge was entitled to interpret the child’s statement to Dr Pilkington that the Father had put his fingers "in there" as indicating sexual touching rather than innocent contact. The judge’s interpretation fell within the range of reasonable conclusions.

The Court further held that the judge properly considered the hearsay nature of the evidence, its reliability, and the statutory framework governing such evidence. The judge’s judgment was clear and demonstrated that he had taken into account all relevant factors, including potential contamination, coaching, and alternative explanations.

The appellate standard was whether the judge was wrong in his fact-finding. The Court concluded that the judge’s findings were well within the range of reasonable decisions and not wrong.

Holding and Implications

The Court of Appeal DISMISSED THE APPEAL, thereby affirming the trial judge’s fact-finding that the Father sexually abused his daughter.

The immediate consequence is that the case will return to the trial judge to determine appropriate orders concerning residence and contact under the Children (Northern Ireland) Order 1995. No new legal precedent was established; the decision reinforces established principles regarding hearsay evidence and fact-finding in family proceedings involving allegations of child sexual abuse.