West Law Report

R (A CHILD) v DEVON CC & OTHERS

Posted in Westlaw Reports by mrkooenglish on July 23, 2008

Court of Appeal (Civil Division) Laws, Scott Baker, Wilson LJJ July 15, 2008 Care proceedings – Findings of fact – Reasons – Sexual abuse – Sufficiency of evidence – Children – Sufficiency of evidence to support findings of fact

Last Updated: 6:42PM BST 23 Jul 2008

FACTS

The appellant child (C) appealed against a decision on a fact finding hearing in care proceedings that he had abused his younger sister (K). When aged 10 years old, K had disclosed to a teacher a secrets book in which she had written, after crossing out the words “my uncle”, that C had abused her. K’s friend had also disclosed an allegation in her own secrets book against her uncle using identical words, which allegation had later been withdrawn. The next day K had been interviewed and gave details of mostly vaginal but also anal abuse by C over a number of years, the most recent of which had taken place two days earlier. Medical evidence was inconclusive, and forensic evidence was that C’s semen had been found on K’s pyjama bottoms but not on her knickers. C completely denied any abuse. The judge concluded that the abuse had occurred on a few occasions in the vicinity of K’s anus but more repeatedly in the vicinity of the vagina and that C may have on occasions achieved partial penetration. C argued that (1) the evidence did not support the judge’s findings; (2) he had not been given the opportunity to deal with suggestions of partial penetration; (3) there was evidence that was not dealt with by the judge at all or was referred to cursorily that favoured C’s case and suggested that K might not have been telling the truth.

ISSUES

(i) Whether the evidence did not support the judge’s findings.

(ii) Whether C had not been given the opportunity to deal with suggestions of partial penetration.

(iii) Whether there was evidence that was not dealt with by the judge at all or was referred to cursorily that favoured C’s case and suggested that K might not have been telling the truth.

HELD (appeal dismissed)

(1) Taking the evidence as a whole, including K’s age, the medical evidence and the fact that semen had been found on K’s pyjama bottoms, the judge had been entitled to make the findings he had.

(2) C had completely denied any sexual misconduct and so he had suffered no injustice by the judge’s finding of partial penetration. The judge had not made any finding that abuse had occurred on any occasion that was not the subject of allegations.

(3) It was very difficult to know what weight the judge had given to matters that suggested that K had not been telling the truth. In particular, the judge had rightly said that the similarities in the entries in the secrets books coupled with the withdrawal of the friend’s allegations gave rise to concern, but he had not explained convincingly how his concerns had been allayed. However, it was clear that the judge’s concerns had been overridden by his belief that K’s account was essentially true, corroborated as it was by semen on her pyjamas.

Anthony Ward (instructed by Hartnell Chanot, Exeter) for the appellant. Tina Cook (instructed by in-house solicitor) for the first respondent. JI Farquharson (instructed by Ford Simey, Exeter) for the second respondent. Chris Godfrey (instructed by Foot Anstey, Exeter) for the third respondent.

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