NI Court of Appeal: Family court entitled to consider evidence excluded as hearsay in criminal court
Northern Ireland’s Court of Appeal has upheld a decision permitting evidence of sexual assault in the context of a family court application where the same evidence was rejected as hearsay in a criminal trial.
About this case:
- Citation: NICA 9
- Court:NI Court of Appeal
- Judge:Mrs Justice Keegan
The facts of this case are explicit and reader discretion is advised.
The appeal arose on foot of an application brought by the father for a residence order and a contact order in respect of his daughter FX, who was seven years old at the time of the judgment at first instance.
Prior to determining whether a residence or contact order should be made, the judge was required to adjudicate on allegations of sexual abuse made against the father. Ultimately, he was “satisfied that it was more likely than not that the father sexually touched his daughter FX with his finger to the vaginal area for the purposes of his sexual gratification”.
The mother and father were married parents to FX, now separated. They married in 2012. In 2013 the father engaged in inappropriate text messages with the mother’s niece who was 13-14 years at the time: “me being random lol only u could pull off lookin cute in them jammers lol xxx.”
The sending of the texts was admitted by the father. However, he denied that that they were inappropriate.
In March 2018, when FX was almost three years old, she made a disclosure in relation to her father’s behaviour towards her to the mother. The mother said that FX said to her words to the effect: “I don’t like it when dad hurts my bum.”
The following day, she noticed a foul smell from the child, and when changing FX she noted that “the area around her vagina and bottom was raw red”. When she asked what happened, FX was reported as saying that dad had hurt her “with his finger”.
The mother then brought FX to be examined on the same day by Dr Pilkington. His report recorded: “I asked her if she told daddy if it hurt and she said she did and told him to stop. I asked if he stopped and she said ‘no’.”
Dr Pilkington advised that they needed to report this to the police, given their concerns regarding previous grooming.
The police attended at the mother’s home that evening. That night her niece, to whom the father had sent the inappropriate text messages in 2013, also made a formal complaint against him. The appellant was subsequently charged with harassment and ultimately received an adult caution for the inappropriate text messages that he sent to the teenage child.
The mother also made contact with social services, who advised her that no contact should take place between the appellant and the child.
The father’s interview and charge
The father was arrested on 13 March 2018 and interviewed by the police, during which he refuted any suggestion of sexual abuse. Instead, he was concerned because he thought that the mother had been coercing or coaching the child.
He denied all of the allegations and asserted that the mother was “putting her up to that”. He was nonetheless charged with three criminal offences pursuant to the disclosures made by FX.
However, the criminal trial did not proceed. The trial judge, Justice Lynch KC, declined to admit the evidence of the mother and the GP in relation to the disclosures made, on the grounds of hearsay.
He also argued that there had been a substantial and unjustified delay in the case, given that it took 19 months for the case to be returned for trial. Given the young age of FX, and this delay, he found that there was no possibility that “a meaningful cross-examination of her could be undertaken by the defence”.
Family court hearing
In contrast, in the family court setting, Mr Justice McFarland had “no real hesitation in finding that the father was engaging in a grooming exercise with a view to sexual exploitation of this girl who was in her early teens”.
Further, in relation to FX, the judge noted that the utterances were remembered and recorded by various parties. Although the court accepted that the mother was not an independent party, the judge also found her to be an honest and accurate witness.
He rejected the suggestion that the mother deliberately coached the child to invent accusations against the father. The number and nature of the disclosures, and their overall consistency, made it unlikely that the mother had “put FX up to making up these allegations”.
Grounds of appeal
The six grounds of appeal generally overlapped, and essentially queried how a family court should assess hearsay evidence of sexual abuse allegations from a young child (here three years of age) which were denied, in circumstances where the father could not actually challenge the child.
A central issue was whether the judge committed an error of law in how he dealt with the hearsay evidence of the child’s disclosures. The appellant also argued that the judge “misinterpreted” the medical evidence from Dr Pilkington and “thereby improperly imported into the case a sexual aspect to the touching”.
First, the court noted that just because the criminal trial ended in a discontinuance against the appellant, that did not mean that the family court was absolved from considering the issue of whether the father sexually abused his child.
The court outlined that in family courts a child of FX’s age would not give evidence, but such evidence may usually be admitted by way of hearsay. Here, the trial judge accepted that FX had made the disclosures to her mother, medical professionals, and police.
Then, the judge would interpret the evidence and weight it’s overall strengths and weaknesses. The court stressed that the standard of proof also differs from a criminal trial, as in a family case it is on the balance of probabilities.
The appellant also argued that the medical evidence was misconstrued by the court. He argued that the child had said to Dr Pilkington that the father had put his fingers “in there” rather than “inside”.
The court found that it was plainly open to the judge to decide that the disclosure made by FX to Dr Pilkington suggested that she had been subject to inappropriate sexual activity by way of her father putting his fingers into her genital area.
Ultimately, the court’s view was that the trial court’s judgment was thorough and careful and could not be categorised as wrong.
Accordingly, the court dismissed the appeal. The fact-finding decision of the judge that the child suffered from sexual abuse perpetrated by her father stands.