Re S (A Child: Findings of Fact)
[2023] EWCA Civ 346
O (Description of Sexual Abuse), Re
15 February 2024
[2024] EWCA Civ 126
Court of Appeal
A child was repeatedly exposed to porn by her parents' negligence. The court ruled this was sexual abuse, even though it wasn't intentional, because it seriously harmed the child. The mother's appeal failed.
Key Facts
- •Seven-year-old O was repeatedly exposed to adult sexual material (nudity and pornography) on mobile phones and electronic devices due to the unintentional negligence of her parents.
- •The exposure led to O exhibiting sexualized behavior, including taking and storing over 100 intimate photos and videos of herself.
- •The parents, both with histories of drug use and domestic abuse, had different levels of awareness and culpability regarding O's exposure.
- •The father regularly watched pornography and used O's phone to screenshot explicit images; the mother and her partner shared intimate content online, potentially accessible to O.
- •The court found no evidence of physical contact sexual abuse, but the Judge concluded that the unintentional and negligent exposure amounted to sexual abuse.
Legal Principles
Definition of sexual abuse under the Children Act 1989 and its interpretation in relation to unintentional and negligent exposure to adult sexual material.
Children Act 1989, section 31(2)(b)(ii), section 31(9); DfE Guidance; NSPCC Guidance
The threshold criteria in section 31 CA 1989 must be satisfied to justify care proceedings; the focus is on the harm suffered by the child, not solely on the intent or actions of the perpetrator.
Children Act 1989, section 31
Caution against using criminal law concepts and labels in family court fact-finding hearings; focus should be on factual findings and their impact on child welfare.
Re R (Children)(Care Proceedings: Fact-finding Hearing) [2018] EWCA Civ 198; A v B [2023] EWCA Civ 360; Re H-N and Others (children) (domestic abuse: finding of fact hearings) [2021] EWCA Civ 448
Procedural fairness in family court hearings; judges should provide opportunity for parties to comment on significant departures from proposed findings or introduction of new guidance.
Re G & B (Fact-Finding Hearing) [2009] EWCA Civ 10
Outcomes
Appeal dismissed.
The Court of Appeal upheld the lower court's finding that the parents' unintentional and negligent exposure of O to adult sexual material constituted sexual abuse under the Children Act 1989. The court emphasized the significant harm suffered by O and the importance of the statutory definition of harm, which includes sexual abuse, even in cases of unintentional negligence.