(Court of Appeal, Longmore, McFarlane LJJ, 29 November 2012)
Following the breakdown of the parents' relationship the children lived with the mother for a period. Both parents had issues with drug and alcohol abuse during the relationship but when the mother's use continued the children were removed and placed with their father. Three years later one of the children made disclosures of sexual abuse by their mother while in her care.
During a fact-finding hearing the judge found none of the specific allegations contained in a schedule had been proved. However, due to the comments made by the children he found their sexual knowledge to be of concern. He made alternative findings that they had witnessed adult sexual activity while in the mother's care. The mother appealed.
The appeal would be allowed. While it was understandable that the judge would find the children's comments concerning it had not been open to him to make alternative findings when those contained in the schedule had already been found unproved.