Family lawyer organisation, Resolution, has issued two joint notes to assist family lawyers in England and Wales ahead of the end of the Brexit transition/implementation period at 11 pm on 31 December...
(Court of Appeal, Thorpe, Rafferty, Kitchin LJJ, 30 January 2013)
A fact-finding hearing conducted by Baker J concluded that the child had been abused by her step-father between the ages of 11 and 13. When the allegations were revealed the girl was clear that she had been subjected to penetrative sexual intercourse on a number of occasions.
The step-father appealed those findings on the basis that the evidence of the consultant paediatrician had demonstrated partiality. Her examination of the child found no physical signs of sexual abuse. In her written evidence she cited passages from the guidance on the Royal College of Paediatrics and Child Health (2008) including headline statements which seemed to establish that penetrative sexual intercourse with a minor may result in no physical signs upon subsequent paediatric investigation, without drawing attention to the fact that research findings suggested that that would be unusual. In three quarters of the cases there would be observable signs and only in one quarter would there be no observable sign, physical injury or trace left from the repeated penile penetration.
The step-father pointed to the fact that none of the parties had access to a copy of the Royal College guidance and, accordingly, that process of trial and judgment had run off the road, since effectively all involved had placed reliance on what was a partial medical report. Had the material been available to the court, the paediatrician would have been cross examined more effectively which would have revealed her partiality and the judge would, accordingly, have written his judgment in different terms and perhaps arrived at a different conclusion.
The appeal was dismissed. The absence of the guidance in court had not made a difference and it was, nevertheless, the responsibility of those representing the step-father to obtain a copy if they thought it was relevant to the probing of medical evidence. The doctor had been clear that the fact that the child was complaining of abuse that had happened on a number of occasions as opposed to one single act mattered not to her opinion.
The report of the consultant paediatrician was a model of how such tasks should be undertaken. To suggest that she was guilty of some sort of professional partiality was less than fair when it was never suggested to her when it was needed to be put, namely, during the course of trial.