M (Children: Findings of Fact)

Factual and Procedural Background

The proceedings concern three girls: one aged eight, and twins aged four. There has been a longstanding involvement of the local authority. The children entered foster care on 19 October 2023. Following the parents' separation after the father was arrested for assault and criminal damage on 31 October 2023, he was removed from the home and subsequently became subject to an 18-month restraining order. The children have since returned to their mother.

The local authority initiated care proceedings in November 2023. The final hearing spanned five days in July 2024 before Her Honour Judge Edwards, who had overseen the case. On 8 July 2024, the judge found the threshold for intervention had been crossed in eleven respects, made a care order based on the children’s return to their mother, and authorised the local authority to refuse contact between the father and the children.

The father appealed, with permission granted by Baker LJ, against two threshold findings: sexual abuse of one twin causing injury to her genital area, and physical abuse of the other twin by slapping her bottom and genital area.

Unappealed findings included parental failure to seek medical attention for the injury, the father tying one twin to her cot, leaving the twins unsupervised naked in the street, the father's serious fluctuating mental health impairing his parenting, a volatile parental relationship featuring domestic abuse, parental cannabis misuse, the mother allowing unsupervised care by the father despite his mental state, and the father’s aggression and inability to prioritise the children’s needs.

In the period before removal, referrals were made to the health visitor noting various injuries and signs of neglect, including bruising, tiredness, hunger, soiling with blood in underwear, facial injuries, and genital swelling and soreness observed at nursery.

Following referrals, a safety plan was implemented on 12 October 2023, initially placing the paternal grandmother in the home to supervise care of the children, later amended to permit maternal grandmother supervision. A GP examined the twins on 12 October without reporting relevant injuries. A consultant community paediatrician examined the twins on 19 October, observing an injury to one twin’s genitalia indicative but not diagnostic of sexual abuse; a follow-up examination found healing.

A consultant paediatrician, instructed as a single joint expert, reviewed the medical evidence, concluding the injury was traumatic and consistent with blunt force but could have been accidental without supporting history. She noted the timing was uncertain, and that common non-sexual genital injuries could occur from straddle injuries, though no such history was given.

In January, the children participated in Achieving Best Evidence (ABE) interviews, which were extensively reviewed by the judge.

Legal Issues Presented

1. Whether the threshold findings of sexual abuse of one twin by the father, and physical abuse of the other twin by slapping, were properly made on the evidence.
2. Whether the judge erred in finding the father responsible for the injuries despite submissions regarding the adequacy of supervision and the nature of the evidence.
3. Whether the judge improperly reversed the burden of proof in respect of the father's responsibility for the injuries.
4. Whether undue weight was placed on the ABE interviews given the children’s ages, the delay before interview, and the interview techniques used.

Arguments of the Parties

Appellant's Arguments

• The judge incorrectly found the injury to the child was caused by biting, which contradicted expert medical opinion.
• The mother’s evidence about supervision by grandparents was unchallenged, and the absence of their testimony undermined the finding of inadequate supervision.
• It was illogical to conclude the father caused the injury when it was found that one child was bitten by her sister due to inadequate supervision.
• The judge reversed the burden of proof by relying on the absence of an account of the injury from the parents.
• Too much weight was placed on the ABE interviews considering the children’s young ages, the delay before interviews, the frequent use of closed questions, and the children’s lack of engagement.

Appellee's Arguments

• The judge did not find that the injury was caused by biting; the wording in the order was an error introduced by counsel and should be corrected.
• The GP’s examination on 12 October suggested the injury had not occurred by that time, supporting the judge’s finding that supervision was inadequate.
• The judge’s findings were based on the totality of evidence, including the children’s credible accounts and the lack of any plausible alternative explanation.
• The absence of an account of the injury was a legitimate factor to consider and did not amount to reversing the burden of proof.
• The judge properly assessed the ABE interviews, taking into account all limitations, and was entitled to give them considerable weight.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Re BR (Proof of Facts) [2015] EWFC 41	Consideration of the absence of an account of injury by a carer does not amount to reversal of the burden of proof but can be a significant factor.	The court rejected the appellant’s argument that the judge reversed the burden of proof, confirming that the judge’s approach was proper and proportionate.

Court's Reasoning and Analysis

The court examined the appeal against the two threshold findings of abuse. It clarified that the judge did not find that the injury to the child was caused by biting, noting that the wording in the order was erroneously inserted by counsel and should be corrected. The judge’s findings were based on a detailed and careful assessment of the medical evidence, including expert opinion that the injury was traumatic and consistent with abuse, as well as the children’s credible and compelling accounts given during the ABE interviews.

The court acknowledged the submissions regarding supervision by grandparents but found that the GP’s examination on 12 October suggested the injury had not occurred by then, supporting the judge’s conclusion that supervision was likely inadequate during the relevant period. The absence of any explanation for the injury from the carers was a relevant factor supporting the judge’s findings.

The court rejected the argument that it was illogical to find the father responsible given the chaotic household, emphasizing that the judge’s findings rested centrally on the child’s account. The court also rejected the submission that the judge reversed the burden of proof, relying on established authority that the absence of an account can be a significant factor without amounting to reversal.

Regarding the ABE interviews, the court held that the judge had carefully and appropriately weighed the evidence, considering the children’s ages, the delay before the interviews, and the interview techniques used. The judge’s assessment of the interviews’ forensic value was entitled to significant weight.

Overall, the court found the judge’s decision to be well-reasoned, based on a thorough evaluation of evidence, and clearly open on the facts. The appeal was dismissed.

Holding and Implications

The court DISMISSED the appeal. The two threshold findings of sexual abuse and physical abuse against the father were upheld as properly made on the evidence.

The local authority was directed to take steps to amend the Family Court’s order to remove the erroneous wording that the injury was caused by biting, reflecting the judge’s actual findings.

The decision directly affirms the lower court’s findings and does not establish new legal precedent. It confirms the proper approach to assessing evidence in care proceedings, particularly regarding the evaluation of young children’s accounts and the consideration of the absence of explanatory histories for injuries.