Insufficiency of Court’s Reasons

A finding that a father had sexually abused his daughter O, was set aside by the Court of Appeal for insufficiency of reasons.  The Court ordered a rehearing before a different judge:  FD v A Local Authority (1) MD (2) O (by her children’s guardian)(3) [2021] EWCA Civ 419 Peter Jackson, Baker and Nugee LJJ.

Baker LJ acknowledged the very great pressure under which the judge, and all his colleagues in the Family Court, had been working during the past eleven months.

Drafting a judgment in a complex case always presented challenges even for an experienced judge.

It was a demanding task to draw the threats together when various aspects of the evidence pointed in different directions.

The problems were compounded where, as was almost invariably the case in the Family Court, no time was allocated for judgment writing.

There were, however, three overlapping problems with the judgment.  First, the reasoning was, in a number of respects insufficient.

Secondly, in reaching his ultimate conclusion, the Judge failed to take into account some material factors.

Third, he looked at the evidence in compartments and did not have regard to each piece of evidence in the context of the totality of the evidence, before reaching his conclusions.

Fourthly, the Judge did not refer to the extensive evidence given by the father in two statements in the proceedings and oral evidence, supported by evidence from other family members, about the contact visits between May and July 2019 in which he sought to demonstrate that he did not have the opportunity to commit the acts of grave abuse on the number of occasions that would have been required to inflict the injuries on the scale identified by the medical evidence.

Although the Judge listed the occasions on which the contact took place during that period, he did not analyse the father’s evidence about them or the submissions made on his behalf about that aspect of the case.

Fifthly, it was submitted to the Judge and to the Court of Appeal that the mother’s conversations with the child between 5 and 30 August 2019, in particular the conversation on 24 August, were an attempt to coach the child as to what she should say in interview.

The Judge made no findings about that issue, nor about a further grave incident in November 2019 when the  mother made an incorrect allegation.

Together, those errors and omissions undermined the reliability of the Judge’s conclusions that the father had inflicted the injuries identified.

The reasoning at that point in the judgment was far too insubstantial.

Jackson LJ added that the question was not whether O had been assaulted, but when, by whom and why.

On the evidence, the answer was the mother, the father, or one of them.

Any one of those grave findings had huge repercussions for O’s future, but unfortunately, the judgment did not contain the solid reasoning needed to underpin the finding arrived at by the Judge.

He relied on statements by O, as reported by the mother, without adequately assessing the reliability of either the mother or of O.

He did not weigh the relative opportunities of each parent to cause the unusual injury, or their possible motivations.

He made findings of earlier grooming and abuse without assessing whether there was dependable evidence to support them.

He relied on the father’s demeanour in interview and in evidence without explaining how his reaction to a false allegation of such extreme seriousness might be expected to differ from his reaction to a true allegation.

Nor did the judgment address the inherent probabilities, or in the present case, improbabilities, of either parent having assaulted O in circumstances where it seemed that one of them must have done.

It was fortunately unlikely that the medical evidence would need to be reheard.  It had been transcribed and could now probably be agreed.

It was necessary to direct a rehearing so that matters could be considered afresh.