03 JUL 2014
Re J (A Child)  EWCA Civ 875
(Court of Appeal, McFarlane, Gloster, Briggs LJJ, 27 June 2014)
[The judicially approved judgment and accompanying headnote has published in Family Law Reports  1 FLR 1152]
Finding of fact hearing – Appeal – Vulnerable witness – Weight attached to emotional presentation of witness
Please see attached file below for full judgment.
In private law proceedings in respect of a 12-year-old girl, it came to light that a young woman had made allegations of sexual abuse against the child’s father. An issue arose of whether the young woman’s identity should be disclosed, on which judgment was given in Re A  UKSC 60,  1 FLR 948 requiring disclosure of her identity in the private law proceedings.
Following an 8-day fact-finding hearing the judge found the young woman’s allegations to be fundamentally true: Re A  EWHC 2124 (Fam). The father sought to appeal the findings.
Although the Court of Appeal observed the well-established principle of the need for caution when overturning a first instance finding of fact, the determination could not be upheld, the appeal was allowed and the findings were set aside.
The absence of an ABE interview did not rule out what a complainant had to say, but it was a matter of note for the judge in assessing the material. In this instance it was a significant omission of the judgment that no mention of the absence was made or taken into account when the evidence was evaluated.
The judge noted that the level of emotion presented by the young woman was a powerful factor in her evaluation of the truth of the allegations. Although this was an essential component of evaluating the evidence, where significant weight was placed on the witness’ emotional affect there was a need for the judge to step back and conduct a reality check having regard to the factual content and other evidence in the case. Where the judge didn't take that step there was a risk of a strong emotional presentation having a disproportionately powerful effect on the otherwise dispassionate process of determining whether a fact was established on the balance of probability.
In this case the judge had failed to sufficiently engage with the lack of any sensory or contextual detail, specifics of timing and location or detail of the alleged abuse itself.
The best way to assess reliability, if the witness could tolerate it, was by exposure to the full forensic process where oral evidence was tested through examination and cross-examination. There was a corresponding sliding scale where the degree to which a court could rely on evidence would increase as the process came nearer to the full forensic process. In this case the judge had failed to evaluate the impact of the compromised process on the reliability of the young woman’s evidence.
Even allowing for the fullest justifiable weight to the young woman’s demeanor, a finding against the father was not open to the court to make on the evidence as a whole. No greater clarity was likely to be elicited from a retrial. The private law proceedings would now proceed on the basis that no findings had been made against the father in respect of the young woman’s allegations.
The fully referenced, judicially approved judgment and headnote will appear in a forthcoming issue of Family Law Reports. A detailed summary and analysis of the case will appear in Family Law.
Neutral Citation Number:  EWCA Civ 875
Case No: B4/2013/2165
IN THE COURT OF APPEAL (CIVIL DIVISION)ON APPEAL FROM HIGH COURT, FAMILY DIVISION
Mrs Justice Pauffley
Royal Courts of Justice
B e f o r e :
LORD JUSTICE MCFARLANE
LADY JUSTICE GLOSTER
LORD JUSTICE BRIGGS
Re J (A child)
Ms Kate Branigan QC and Miss Alev Giz (instructed by Fisher Meredith) for the Appellant
Mr Paul Storey QC and Ms Camille Habboo (instructed by Blackfords LLP) for the Second Respondent
Miss Sarah Morgan QC (instructed by Russell-Cooke Solicitors) for the Second Intervenor
The first respondent appeared in person
The First Intervener was represented by Mr Mark Twomey but excused attendance
Hearing date: 28 March 2014
Re J (A Child)  EWCA Civ 875