K & D (Children: Sexual Abuse Findings)

Factual and Procedural Background

This appeal concerns findings of sexual abuse made in care proceedings involving two girls, aged 9 and 7. The appellant, referred to as "F", is the younger girl's father. The older girl's father is unknown and uninvolved. The girls' mother is in a relationship with a man "X", who, along with his father "Y", were intervenors in the proceedings. The local authority initiated care proceedings following concerns about the children's safety due to the mother's mental health, domestic abuse allegations, and the presence of X, who had a history of aggression.

F had contact with the children, including overnight stays at X's home, where the children lived. Despite social services concluding neither F nor X should be alone with the children, F's overnight contact continued. In mid-2023, concerns arose from school reports about the children's behavior and physical signs suggestive of sexual abuse. Medical examinations of the older child revealed abnormal findings, while the younger child showed no physical signs of abuse.

The children were subsequently accommodated by the local authority under section 20 of the Children Act 1989 and placed in foster care. Care proceedings commenced in November 2023, and interim care orders were made. An expert paediatrician, Dr Carter, was jointly instructed and provided a report concluding that while it was not possible to be certain, the physical signs in the older child were significant and unusual and possibly indicative of child sexual abuse (CSA).

During the proceedings, various observations of the children's behavior in foster care were noted, some of which were interpreted as possible indicators of sexual abuse. Neither child made direct allegations of abuse despite opportunities to do so. Parenting assessments recommended the children should not return to their mother or X, and contact with F ceased in early 2024.

The local authority sought findings of sexual abuse against one or more of four named individuals, including F. The mother accepted the children should remain in foster care and did not oppose care orders. F disengaged from the proceedings and did not attend the final hearing in September 2024. The judge heard evidence over six days and reserved judgment, which was delivered in October 2024.

Legal Issues Presented

1. Whether the findings of sexual abuse of the older child were justified on the evidence presented.
2. Whether the younger child suffered sexual harm as a result of exposure to abuse of the older child.
3. Whether the appellant, F, was the perpetrator of the sexual abuse.
4. Whether a finding against F made in his absence without prior warning breached his procedural rights under Article 6.
5. The proper application of procedural rules regarding setting aside judgments made in a party's absence in family proceedings.

Arguments of the Parties

Appellant's Arguments

• The judge erred in finding that the medical evidence strongly supported a finding of anal sexual abuse; the evidence did not justify this conclusion.
• There was no evidence to support findings that the younger child suffered sexual harm or witnessed abuse.
• The judge improperly relied on an adverse inference from F's non-attendance at the hearing without warning him that such a finding could be made, breaching his fair trial rights.
• The judge incorrectly stated the timing of F's cessation of contact in relation to the expert report, undermining the inference drawn.
• F did not attend the final hearing due to anxiety and fear of X, who was abusive towards him.

Local Authority and Children's Guardian Arguments

• Opposed the appeal, supporting the judge's findings on the balance of probabilities.
• Asserted that the judge's detailed and balanced analysis of medical and behavioral evidence justified the findings.
• Contended that F knew or ought to have known that findings against him could be made in his absence, given his prior engagement in the proceedings.

Intervenor X's Arguments

• Supported the appeal grounds challenging the findings of sexual abuse and harm to the younger child.
• Opposed the grounds relating to procedural fairness and adverse inferences drawn against F.

Mother's Position

The mother remained neutral as to the outcome of the appeal.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Bank of Scotland plc v Pereira [2011] EWCA Civ 241	Guidance on the relationship between applications to set aside judgments/orders made in a party's absence and appeals against those judgments/orders.	The court applied Lord Neuberger MR's principles to clarify that applications under Family Procedure Rules (FPR) rule 27.5 should be made to the trial judge, and that an appeal without such application requires unusual circumstances. The court endorsed that the appellant's choice to pursue appeal without an application under rule 27.5 was permissible but not the usual course.
Fage UK Ltd v Chobani UK Ltd [2014] EWCA Civ 5	Standard of appellate review of findings of fact and inferences drawn by trial judges.	The court reaffirmed that appellate courts should not interfere with findings of fact or inferences unless there is a clear justification, applying this principle to uphold the trial judge's findings on sexual harm to the younger child.

Court's Reasoning and Analysis

The court conducted a detailed review of the trial judge's reasoning, emphasizing her thorough and balanced approach to the medical and behavioral evidence. The judge carefully considered expert evidence from Dr Carter, who stated that medical findings alone could not conclusively establish sexual abuse but that the physical signs in the older child were significant and unusual. The judge appropriately combined medical evidence with behavioral indicators and the totality of circumstances.

The court accepted the trial judge's caution against confirmation bias and her acknowledgment of the absence of direct allegations by the children, noting the well-recognized phenomenon that victims often do not disclose abuse. The judge's findings on the younger child's sexual harm were measured and based on observed behavior consistent with exposure to abuse.

Regarding the identity of the perpetrator, the judge considered the opportunities of all named individuals and the children's expressed views. The judge drew a strong adverse inference from F's disengagement and failure to attend the hearing, concluding that no satisfactory alternative explanation existed. The court found this inference was properly drawn on the evidence and that F was aware of the allegations and potential findings against him.

The court clarified procedural aspects concerning applications to set aside judgments made in a party's absence under FPR rule 27.5, referencing Bank of Scotland v Pereira. It confirmed that such applications should be made to the trial judge and that appeals without such applications are exceptional. The appellant's decision not to pursue a rule 27.5 application was accepted, and the appeal proceeded on substantive grounds.

Holding and Implications

The court DISMISSED the appeal.

The trial judge's findings that the older child was sexually abused, that the younger child suffered sexual harm through exposure, and that F was the perpetrator were upheld as properly supported by the evidence. The adverse inference drawn from F's non-attendance was found to be fair and not in breach of procedural rights, given his prior knowledge of the allegations and the proceedings.

This decision affirms the careful fact-finding role of trial judges in complex family proceedings involving allegations of sexual abuse and clarifies the procedural expectations regarding non-attendance and applications to set aside judgments in family cases. No new precedent was established beyond the application of existing principles.