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Points of clarification: Are they material? Are they genuine?
The matter of F and G (Children) (Sexual Abuse Allegations) [2022] EWCA Civ 1002 was heard in the Court of Appeal on 13th July 2022, when an intervenor in care proceedings, D, appealed against findings that he had sexually abused the five-year-old daughter of his former partner, F.
Background
The allegations in care proceedings related to events in January 2021, when F underwent a medical examination and made disclosures of sexual abuse against D. A number of conversations and interviews took place, one of which was the initial conversation between F, the Social Worker and police on 21st January 2022, a conversation which was of some contention as not taking place in accordance with ABE guidance.
F made a number of allegations, at times in respect of other individuals, though none of these were disclosed on more than one occasion. The allegation against D was repeated numerous times. According to F, her mother was also aware of the abuse. Medical evidence from the initial clinical examination appeared to support F’s allegations that there had been penetrative abuse.
In May 2021, the Local Authority issued care proceedings in respect of F and her younger sister, G. D was joined as an intervenor and a fact-finding hearing took place in March 2022, with judgment being reserved and handed down on 13th April 2022.
In giving judgment, Recorder Evans noted that F has given “clear and cogent” disclosures, albeit slightly less clear in terms of the identity of the perpetrator, the Recorder concluded that none of the other persons mentioned by F, other than D, were likely to have abused her. In respect of D’s evidence, the Recorder noted the inconsistencies. Findings were made that D had abused F and that it did not happen on just one occasion. The findings are set out at paragraph 23 of the Court of Appeal decision.
The Appeal
On 19th April 2022, D sought written clarification. Recorder Evans declined to expand upon the judgment or to provide further clarification and refused an application by D on 26th April 2022 for permission to appeal.
A notice of appeal was subsequently filed by D on 19th May 2022. The six grounds relied upon included the assertion that insufficient weight was given to the fact that “multiple professionals had concluded that F did not have an understanding of the difference between truth and lies” [25], along with issues in respect of ABE guidance and procedure.
In considering the appeal, Baker LJ considered that although Recorder Evans had not listed comprehensively all of the discrepancies in certain evidence, it was clear from the judgment that the Recorder was “fully aware that the conversation was not compliant with the ABE guidance which he had recited at length” [37], and that the Recorder was “fully aware that there had been significant departures from the practice recommended in the ABE guidance” [39].
In respect of the issue of truth and lies, it was clear to the Court of Appeal that Recorder Evans had in fact grappled with this issue, referring to it when summarising the evidence [42].
The Court of Appeal did consider that there was an omission in Recorder Evans’ judgment in relation to D’s third ground of appeal, that the Recorder had not weighed up sufficiently evidence from the Maternal Grandmother that F had disclosed that her father had told her to make the allegations against D, however, considering the totality of the judgment, the Court of Appeal did not consider this omission to be sufficient justification to overturn the decision of the lower court [60].
Conclusion and Analysis
The Court of Appeal reiterated at paragraphs 54-57 the approach to be adopted for requests for clarification by both advocates and judges, set out in Re A and another (Children) (Judgment: Adequacy of Reasoning)[2011] EWCA Civ 1205 ("the Practice Note") and Re I (Children)[2019] EWCA Civ 898. The procedure to be adopted is set out in the Family Procedure Rules 2010 Practice Direction 30A paragraph 4.6 to 4.10.
It was noted by Baker LJ that in this case, the points of clarification sought were “not seeking to reargue the case nor water down the judgment. But in my view the points of clarification raised went beyond what is intended by the authorities and the recorder was not obliged to answer them” [58].
It was reiterated that when giving a judgment in a complex matter such as this, no judge will deal with every point of evidence or every submission made on behalf of each party. The Practice Note guidance was emphasised by Baker LJ, reminding advocates that the purpose of points of clarification are:
“to raise with the judge and draw to his attention any material omission in the judgment, any genuine query or ambiguity which arises on the judgment, and any perceived lack of reasons or other perceived deficiency in the judge's reasoning process” [59].
Baker LJ went on to say that “It is therefore rarely if ever appropriate for counsel to enquire as to the weight which the judge has given to a particular piece of evidence” [59].
Finally, in respect of the approach to be taken when dealing with child abuse allegations, it was submitted on behalf of D (although not raised as a ground of appeal) that the framework identified at paragraph 3 of Re S (A Child: Adequacy of Reasons) [2019] EWCA Civ 1845 by Peter Jackson LJ ought to have been followed by Recorder Evans. Whilst the Court of Appeal noted this is an invaluable framework, it was clear that, if not followed, this is not going to be sufficient to amount to a ground of appeal, and will not necessarily be applicable in every case of child abuse [61].
This decision serves as a good reminder to all professionals involved in such cases to approach points of clarification with caution, bearing in mind the Practice Note and other guidance set out above.
