F & B (Fact-Finding: Gonorrhoea)

Factual and Procedural Background

In June 2023, a six-year-old girl, hereafter called "F", was diagnosed with gonorrhoea. The local authority initiated care proceedings concerning F and her younger brother, "B", aged five. Interim care orders were granted, with the children residing with their maternal grandmother. The local authority sought findings on threshold criteria under section 31(2) of the Children Act 1989, including allegations of sexual abuse, emotional harm, parental drug and alcohol misuse, domestic violence, and criminality by the children's father. All findings were largely accepted except those related to sexual abuse, which proceeded to a fact-finding hearing before HH Judge Greensmith in September and October 2024. The local authority alleged that F contracted gonorrhoea through sexual abuse by either the mother or the mother's brother, "X". However, the judge found that F contracted the infection through fomite transmission facilitated by X, who knew he was contagious at the time.

The local authority appealed this finding. The appellate court allowed the appeal and remitted the case for rehearing before a different judge. This judgment sets out the reasons for that decision.

The children’s mother has a history of substance and alcohol abuse and poor mental health. The parents’ relationship was troubled by domestic violence and ended in 2021. X, aged 21 in 2023, lived at the grandmother’s house at the relevant time. X had previously been investigated for sexual offences as a teenager but faced no criminal proceedings. X was notified of his gonorrhoea diagnosis on 25 May 2023. F showed symptoms on 1 June 2023, and tests confirmed gonorrhoea infection in her eye and vulva on 5 June. The grandmother expelled X from the property immediately. Subsequent tests showed the mother also tested positive for gonorrhoea, while B, the grandmother, and her partner tested negative.

Medical examinations of F were difficult due to her distress and refusal to cooperate. Neither child made any allegations of sexual abuse. The local authority sought care orders with conditions restricting household residents to the grandmother and her partner. X was permitted to intervene and was legally represented.

Two expert reports were obtained from Dr Amos Ghaly, a consultant in genitourinary medicine and forensic physician, and Dr Michael Rothburn, a consultant medical microbiologist. Both experts confirmed gonorrhoea is primarily sexually transmitted, with fomite transmission considered rare and theoretical due to the fragility of the organism outside a moist human host. The experts agreed that while sexual abuse is strongly suggestive when gonorrhoea is diagnosed in a child beyond the newborn period, fomite transmission cannot be totally excluded but is not supported by robust evidence.

The fact-finding hearing included oral evidence from the experts, the grandmother, and X. The mother failed to attend most of the hearing and did not give evidence. The father participated by video link but was not required to give evidence. The judge summarized the evidence, including expert opinions and witness testimony, and considered the legal principles on burden of proof and treatment of lies in court.

The judge found no direct evidence of sexual abuse beyond the infection itself, accepted the grandmother’s account of household routines, noted the moist bathroom environment conducive to survival of the bacteria for up to 12 hours, and concluded that fomite transmission was unlikely but not impossible. The judge found X’s evidence unimpressive, including inconsistencies about when he discovered his infection, but concluded there was no cogent evidence that X had sufficient opportunity to abuse F. The judge did not find the mother responsible for F’s infection. The judge relied on a previous Court of Appeal judgment (Re A, B and C) to support his approach.

Legal Issues Presented

1. Whether the judge erred in law by attaching excessive weight to the possibility of fomite transmission despite expert evidence indicating it was rare and theoretical.
2. Whether the judge failed properly to analyze the wider evidential context alongside the expert medical evidence.
3. Whether the judge misapplied the burden of proof and the legal principles regarding the assessment of lies and expert evidence in child sexual abuse cases involving gonorrhoea transmission.

Arguments of the Parties

Appellant's Arguments

• The judge wrongly placed significant weight on the inability of experts to totally exclude fomite transmission, contrary to the correct standard of proof.
• The judge failed to properly analyze the wider canvas of evidence, including the grandmother’s credible evidence, bathroom conditions, allegations against X, and X’s unsatisfactory testimony.
• The judge was wrong not to explain his reasons for rejecting the expert medical evidence and relied improperly on the Court of Appeal judgment in Re A, B and C.

Intervenor's Arguments

• The appellate court should exercise restraint in interfering with factual findings and inferences drawn by the trial judge.
• The judge adequately considered the entirety of the evidence, including factors supporting and opposing sexual abuse, and rationally concluded that fomite transmission could not be excluded on the balance of probabilities.

Mother's Counsel

• Broadly supported the intervenor’s position, although the mother disengaged from legal representation after the fact-finding hearing.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Re A, B and C (Fact-Finding: Gonorrhoea) [2023] EWCA Civ 437	Burden of proof in sexual abuse cases; need to consider wider evidential context rather than relying solely on medical evidence.	The court found the trial judge misapplied this precedent by treating counsel’s submissions as the judge’s conclusion, leading to an erroneous checklist approach and insufficient balancing of evidence.
R v Lucas [1981] QB 720	Assessment of lies told out of court as potential corroboration in criminal proceedings.	The court noted the trial judge’s flawed application of this principle in discounting the possibility that X’s lie about infection timing supported the abuse allegation.
Re H-C (Children) [2016] EWCA Civ 136	Approach to treatment of proved lies in Family Court consistent with Crown Court principles.	Referenced to support the principle that a lie does not automatically prove guilt but may be evidence to consider.
Re A, B and C (Children) [2021] EWCA Civ 451	Reaffirmation of principles about lies and evidence in family proceedings.	Referenced to confirm the legal approach to lies in the context of child abuse allegations.
Fage UK Ltd v Chobani UK Ltd [2014] EWCA Civ 5	Appellate restraint in interfering with factual findings and weight attributed to evidence.	The court acknowledged the general principle of restraint but found it necessary to interfere due to errors in the trial judge’s analysis.

Court's Reasoning and Analysis

The court carefully reviewed the expert medical evidence, which strongly suggested sexual abuse as the likely mode of transmission of gonorrhoea to the child, while acknowledging that fomite transmission, though theoretically possible, was rare and unsupported by robust evidence. The trial judge was found to have misapplied this evidence by focusing disproportionately on the mere possibility that fomite transmission could not be totally excluded, attaching excessive weight to this possibility despite expert opinions describing it as unlikely.

The court identified flaws in the trial judge’s treatment of the evidence, particularly regarding the handling of X’s deliberate lie about the timing of his infection. The judge discounted the possibility that the lie was to conceal abuse without adequate explanation, thereby failing to properly weigh this evidence against the wider evidential context.

Further, the judge misinterpreted the appellate judgment in Re A, B and C by treating counsel’s submissions as judicial conclusions and applying them as a checklist to the facts of the case. This led to an unbalanced analysis that failed to properly consider the totality of evidence pointing to sexual abuse.

Consequently, the court concluded that the trial judge erred in law by failing to give appropriate weight to the expert medical evidence and the wider evidential picture, resulting in an unsatisfactory and flawed fact-finding judgment.

Holding and Implications

The appeal is ALLOWED and the case is remitted for rehearing of the fact-finding hearing before a different judge.

The direct effect of this decision is that the initial finding that the child’s gonorrhoea infection resulted from fomite transmission is set aside. No determination is made regarding the ultimate facts of sexual abuse, as the rehearing will consider the totality of evidence anew. The court explicitly refrains from expressing any view on the likely outcome of the rehearing. This decision does not establish new legal precedent but clarifies the proper application of expert evidence and evidential balancing in similar child protection cases.