Court of Appeal dismisses challenge from father over ex tempore ruling by judge in care proceedings

The Court of Appeal has rejected all the grounds argued by a father about alleged errors in findings of fact by a circuit judge in care proceedings involving his daughter.

In C (A Child) (Fact-Finding) [2022] EWCA Civ 584 Lord Justice Baker said that he was “wholly unpersuaded” that a minor omission affected the validity of the judge’s findings and that the judge had been entitled to reach the conclusions she did.

She had also been entitled to decide the father’s reason for not attending court was “ridiculous” namely that he refused to attend unless his daughter - now aged 14 - also did so.

Following the breakdown of her parents' relationship in 2011, child A lived with her father until February 2021 when, aged 12, she was found alone at home by the police and removed to a family placement.

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In the course of a section 47 investigation, she informed a police officer and social worker that she had been left alone frequently, that her father drank excessively and that he physically assaulted her.

As a result, he was arrested on suspicion of child neglect. A was interviewed on video, when she repeated her allegations of neglect and physical abuse, referring to notes she had made.

The circuit judge summarised the evidence given by the professional witnesses called by the unnamed local authority involved - police officers and social workers - whom she described variously as clear, consistent, accurate, truthful and reliable and set out in detail statements made by A about her father.

Hearing that the father refused to attend court, the circuit judge said: "I understand that the reason given by him is that, if A is not attending court, then he is not attending court either.

“I think that is an absolute ridiculous reason for an adult to give as to their non attendance. Mother is clearly in court. I do not see why the father should not be in court. There are serious allegations that are being levied at the father. His response is a simple denial and saying that the mother or the grandmother or both have put A up to making these allegations against him.”

The judge made a schedule of the findings, which included that A had been left alone overnight in a home that was cold and dirty on a very frequent basis for long periods in the evening and sometimes overnight, when the father on several occasions returned home in the early hours of the morning intoxicated from consuming chronic excessive levels of alcohol, and that A was subjected on multiple occasions to physical abuse by the father.

The father argued that the judge had been wrong to accept A's evidence, which arrived before the court via a flawed ABE process that did not meet the burden of proof or adequately provide the father with sufficient opportunity to explore the inconsistencies in a fair way.

He also said the judge was wrong to reject his reasons for not giving evidence and to draw adverse inferences.

Video of a first interview with A showed her reading from notes, which the father said meant there was no ‘free narrative’ and only limited supplementary questions were asked, meaning the judge should have attached no weight to it.

He also said that in a second interview serious allegations of sexual abuse made against him had not been properly investigated to the standard necessary to allow the judge to give any weight to the evidence.

Baker LJ said: “It is plain that the judge was fully alive to the criticisms made of the investigation.

“It is clear, first, that the judge was aware that A had referred extensively to notes during the course of the first interview. It was the judge's clear impression from watching the video that the notes were ‘reminders for her as to what she wanted to talk about’ and that this was a form of free narrative in the sense that it was unprompted by anything said by the officers. It was also the judge's impression that very few questions were asked in the course of this interview, although it is clear from the transcript that a number of follow-up questions were put to the child after she had given her account based on the notes. I see no basis for this court concluding that the judge's evaluation of the first interview was flawed.”

Baker LJ rejected the argument that the evidential weight to be attached to the second interview should have been reduced because the interviewing officer did not challenge A about the differences between the allegations she was now making and those made in the earlier interview in March.

“As Peter Jackson LJ observed in the course of the hearing, there is a distinction between different accounts and inconsistent accounts,” Baker LJ said. “There were no or no substantial inconsistencies between the two interviews.”

The circuit judge had found the father’s explanation for refusing to attend “ridiculous" and had been entitled to come to that view and as a matter of law to draw an adverse inference, he said.

Lady Justice Andrews and Lord Justice Peter Jackson agreed.

Mark Smulian

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