Court of Appeal hands down Judgment in K-K (Children) [2024] EWCA Civ 1025

Edward Lamb KC and Tara Vindis, instructed by Enfield Legal Services, successfully defended an appeal that dealt with the retraction of allegations; burdens of proof and deficiencies in investigatory procedures relating to allegations of sexual abuse within a family.  Tara Vindis was instructed for the fact finding hearing in which the findings were made by HHJ McKinnell.

Facts

A girl made repeated allegations of sexual abuse against her stepfather, KK, over a number of years, ultimately retracting all of them.

The Circuit Judge at first instance made findings that KK had sexually abused A in a number of ways and that the mother had not responded appropriately to her allegations and had not protected her. The first instance Judgment is found at K-K (Children) (Fact Finding: Retracted Allegations) [2024] EWFC 271

KK (Penny Howe KC and Sandra Fisher) and the mother (John Tughan KC and Lauren Bovington) appealed. The appeals were supported by the child ‘A’ (Joanna Youll). The local authority and the remaining children’s guardian (Mark Twomey KC and Victoria Roberts) opposed the appeals. 

Interesting points arising from the appeal

1. All acknowledged the significant hurdle to cross for appellant’s appealing findings of fact: per Lewison LJ in Fage UK Ltd & Anor v Chobani UK Ltd & Anor [2014] EWCA Civ 5 at [114] and [115] and in Volpi & Anor v Volpi [2022] EWCA Civ 464 .

2. Evidence of contemporaneous reporting of allegations is important. Lady Justice Macur regarded the ‘critical base of the judge’s inquiry to centre on the emergence and context of the first allegations made by A in or around 2017 arising from the evidence of NK and KK.’ This was of critical importance in considering the credibility and reliability of A’s subsequent allegations and retractions.

3. Focusing on the evidence of an alleged abuser did not shift the burden of proof; ‘the discharge of the burden of proof is not restricted to consideration only of the evidence called by the party who bears the burden.’

4. Poor ABE/interviewing practice must be seen in context and does not always lead to that evidence being dismissed. The judge was rightly concerned that a social worker who had interviewed A in November 2022 had not followed good practice but was entitled to find that the evidence of a teacher who also spoke to A at the time was supportive of the substantive allegation recorded by the social worker. There were, as the judge acknowledged, deficiencies in the investigation of A’s allegations in 2022, but (per Peter Jackson LJ in Re S (A Child) (Findings of Fact) [2023] EWCA Civ 346 at [36]) ‘the fact that guidance has not been followed does not mean that findings of abuse cannot be made where the evidence as a whole justifies it.’