Gonorrhoea and Presumed Sexual Abuse – Court of Appeal Clarifies Re A, B and C
Late last year, second-six pupil Avaia Williams wrote a summary in relation to Liverpool City Council v M and F and P [2024] EWFC 318 (B), a case concerning non-sexual transmission of gonorrhoea. The matter has since been successfully appealed and Avaia now considers what the appeal judgment in F and B (Fact-Finding: Gonorrhoea) [2025] EWCA Civ 340 means for such cases going forward.
Background
The matter concerned F, a six-year-old girl, (referred to in the first instance decision as ‘C’ and in the appeal as ‘F’) who presented at A&E in mid-2023 and was tested positive for gonorrhoea. At this time, F lives with her maternal grandmother and maternal uncle, X (referred to in the first instance decision as ‘P’ and in the appeal as ‘X’). X had also tested positive for gonorrhoea prior to F’s diagnosis, F’s mother, M, also tested positive.
Crucially, F had made no allegations of sexual abuse and no such statement was made which suggested as such. Further, partial examination revealed no signs of sexual abuse.
It was the Local Authority’s case at first instance that the diagnosis must have been caused by sexual contact and sought findings against either X or M.
First Instance Decision
The court at first instance was guided by A, B and C (Fact-Finding: Gonorrhoea) [2023] EWCA Civ 437 which cautions against an immediate jump to an infection equalling evidence of sexual abuse and the need to consider the broad canvas of evidence in the case.
The case was heavily guided by the evidence of two experts, Dr Amos Ghaly, a consultant in genitourinary medicine, and Dr Michael Rothburn, a microbiologist. Dr Ghaly stated in his report that gonorrhoea is primarily sexually transmitted, noting that:
“Transmission is by direct inoculation of infected secretions from one mucous membrane to another. The main route is sexual contact with relevant anatomical sites…”
Dr Ghaly provided a simplified overview of transmission, noting that gonorrhoea being present on an object or surface, and then somebody simply coming into contact with that surface is not likely to transmit gonorrhoea, there needs to be a transmission via a ‘mucous membrane’ such as the mouth, nose, eyes, and genitals. Dr Ghaly noted that:
“A positive culture for N gonorrhoeae from any site in a child without prior peer sexual activity is strongly suggestive of sexual abuse. The question of whether gonococcal infection in children can be acquired through fomites still arises. To date there are no convincing data to support nonsexual mode of transmission in children.”
In conclusion, Dr Ghaly believed the transmission was likely due to sexual contact, but that fomite transmission could not be excluded.
Dr Rothburn explained of fomite transfer that:
“The possibility of fomite transfer (transfer via an inanimate object), is considered rare because gonorrhoea is a fastidious organism which does not survive outside the human host in a dry environment.”
The court therefore noted that:
“The combined expert evidence does not exclude the possibility that [F] could have contracted the infection from fomite transmission. The collective evidence supports that the germ can survive on a surface for up to 12 hours in moist conditions. A damp towel located within a bathroom which is poorly ventilated and in which condensation forms, and is visible, is such a moist environment. For [F] to have contracted the infection from a fomite source, the germ must have been deposited on a surface and survived for a long enough period for [F] to come into contact with it. The germ must then have been conveyed to one of her mucus membranes for the infection to enter her body. This could be achieved directly by the object having been inserted into the body with such depth that it touches the membrane. In the case of the eye, this could be achieved by wiping the eye with an infected towel or by self infection from touching an infected part of the body and then touching the eye.”
As such, it was found that F’s infection was transmitted via non-sexual contact, i.e. via fomites.
The Appeal
The Local Authority appealed the decision on three grounds:
- The judge was wrong to place such weight on the experts being unable to conclusively eliminate fomite transmission as a possibility, thus not applying the correct standard of proof;
- The judge failed to properly consider the wider canvas of evidence alongside that of the experts, notably in respect of the bathroom conditions being unfit to incubate gonorrhoea and P’s credibility as a witness;
- The judge was wrong for not explaining why he rejected the medical evidence, instead relying on Re A, B and C (Fact-Finding: Gonorrhoea) to depart from this.
The Court of Appeal, whose judgment was given by Baker LJ, reminded itself of the caution against interfering with a trial judge’s findings of fact or assessment of the evidence, citing Fage UK Ltd v Chobani UK Ltd [2014] EWCA Civ 5 which reminds courts that:
“The expertise of a trial judge is in determining what facts are relevant to the legal issues to be decided, and what those facts are if they are disputed. The trial is not a dress rehearsal. It is the first and last night of the show. Duplication of the trial judge’s role on appeal is a disproportionate use of the limited resources of an appellate court, and will seldom lead to a different outcome in an individual case. In making his decision the trial judge will have regard to the whole of the sea of evidence presented to him, whereas an appellate court will only be island hopping. The atmosphere of the courtroom cannot, in any event, be recreated by reference to documents (including transcripts of evidence). Thus even if it were possible to duplicate the role of thr trial judge, it cannot in practice be done.”
That being said, the Court of Appeal found they were compelled to interfere with the trial judge’s conclusions, accepting that the judge either misinterpreted or misapplied the expert evidence. The Court of Appeal noted that the expert evidence principally was that gonorrhoea in a child was a strong indicator of sexual abuse and, whilst fomite transmission could not be ruled out, it is a rare occurrence.
Baker LJ therefore held at [45] that:
“Instead of treating that as the starting point when considering the totality of the evidence, the judge focused on the fact that the expert evidence left open the possibility of fomite transmission. He said words to that effect at several points in the judgment […] he alighted on Dr Ghaly’s observation that “moisture is a main factor” for the survival of the bacterium and Dr Rothburn’s comment that its survival “on an inanimate surface depends on it being a moist environment”. He noted that the conditions in the bathroom at the grandmother’s home provided the moist environment in which it could have survived for up to 12 hours. He set out in paragraph 80 of his judgment ways in which F might have been infected by fomite transmission. It is right to note that at paragraph 81, he described the grandmother’s routine with the family towels as “meticulous … some would say exemplary”. But overall he concluded that fomite transmission in that environment was “unlikely … but not impossible””
Ground one was therefore successful, with the court finding that the judge had failed to factor in the rarity of fomite transmission, attaching excessive weight to the point that such a finding was not impossible.
On the second ground, the Court of Appeal found that the judge was flawed in his treatment of the lies told by X in evidence. Whilst lies must be treated flexibly within family proceedings, a lie on a material issue might be evidence supporting a finding. Baker LJ noted at [48] that:
“He found that X had lied in his evidence about when he discovered he was suffering from gonorrhoea. That lie was plainly capable of supporting the local authority’s case that F had been infected by X through an act of abuse. But the judge concluded, without explaining why, that it was “likely that X made up the story to give a reason for the infection being on the toilet seat or on towels”. He decided that X “has created a narrative which he thinks would tie in with the timings of the discovery of symptoms in F” without explaining why he discounted the possibility that the reason for the false narrative was to conceal the fact that he had abused the child. His ultimate conclusion on this part of the evidence was that “the fact that X has lied does not of itself negate the possibility of F having become infected by reason of X’s lack of personal hygiene.” But as already noted there was no evidence to support this possibility other than the expert evidence that fomite transmission “cannot be totally excluded … due to lack of robust published research evidence”.”
Ground two was therefore successful, with the court noting that the lies told by X was capable, and in fact more consistent, with the expert evidence that the infection was likely sexually transmitted.
On the final ground, Baker J was clear that the judge was mistaken on the application of A, B and C (Fact-Finding: Gonorrhoea) (notably a judgment given by Baker LJ). Baker LJ clarified that, his judgment in A, B and C, was within the context on an argument that an infection of gonorrhoea was de facto evidence of sexual abuse and this amounting to a reversal of the burden of proof, with counsel in that case identifying features which suggested non-sexual transmission. Baker LJ at [51] provided that:
“It was in that context that, when analysing the submissions at the end of the judgment, I made the observations at paragraph 53 which were cited by the judge in the present case when setting out the relevant law, concluding that the judge in that case had concluded wrongly on the medical evidence that the mere presence of gonorrhoea in the child was determinative of sexual abuse”
Baker LJ went further, noting at [52] that:
“I accept that my judgment in Re A, B and C could have been expressed with greater clarity, but for whatever reason the judge’s reliance on it in the present case led him into error. He seemingly misconstrued paragraph 33 as representing my conclusion as opposed to merely a summary of counsel’s submissions. It was counsel who contended that “a proper survey of the wider canvas would have shown that the presence of gonorrhoea was the only evidence of sexual abuse” and that “all the other features pointed the other way”.”
The Court of Appeal expressed worry over the judge presenting the factors identified by counsel in Re A, B and C as an effective checklist against which to evaluate evidence in the present case. Baker LJ reaffirming that this list was a list drawn by counsel in that case, not a checklist to consider as an art for all such cases.
Concluding, the Court of Appeal held that Re A, B and C was a successful appeal on the ground that the judge did not adequately consider the wider canvas of evidence and did effectively find that the medical evidence alone equated sexual abuse; the issue in this case was that the judge did not adequately consider the expert evidence that the likely cause was sexual contact and the wider canvas supporting this, instead being tied to the fact that fomite transmission was not a factual impossibility.
Commentary
The real significance of F and B lies in the way it ensures that Re A, B and C is read contextually and clarifying the box within which that decision squarely fits. Clearly, since 2023, the evidence of a usually sexually transmitted infection not being determinative of sexual contact has been misinterpreted into a starting point or a high bar to overcome. As did the judge at first instance here, treating the “features pointing the other way” as some sort of checklist which can defeat any allegation of abuse based on an infection is not an approach sanctioned by the case law.
Baker LJ was clear that, the list and discussion within Re A, B and C was no more than that, it was useful advocacy within the facts of that case, but never intended to become a template of defining principles. The first-instance judge in Liverpool CC v M, F and P fell into error precisely because he elevated that counsel-drafted list to the status of principle, setting it up against the expert evidence as though the two carried equal weight.
What the Court of Appeal has clarified is that, just because an infection alone is not conclusive of sexual abuse, this is simply one factor to consider within the broad canvas of evidence. What the law does not, however, say, is that this lack of inherent presumption does anything to the evidential canvas other than to ensure a judge does not place all the weight solely on the infection, and that infection must be contextualised. If two experienced specialists are united in saying that paediatric gonorrhoea is “strongly suggestive” of sexual contact and that non-sexual transfer remains only a theoretical rarity, a judge must then consider that the possibility of an outcome is not the same as the probability of an outcome.
Re A, B and C was never a mandate to discount expert consensus whenever a fanciful alternative can be imagined; it was a reminder not to convict on science alone without canvassing the wider evidence. F and B restores the missing half of that equation: the wider canvas does not licence a court to simply discount what the science says is overwhelmingly likely. Nor does it sanction a “tick-box” defence drawn from someone else’s litigation strategy.
Simply put, F and B does little by way of change or gloss to the law, what it does make clear, is to suggest that any ‘defence’ of fomite transfer is one which is going to be rarely capable of succeeding once the full canvas of evidence is considered alongside the scientific evidence. The presence of gonorrhoea is still not de facto proof of sexual abuse, but alternatives which are “not impossible” are simply not capable of dominating a case by virtue that they technically exist.
The full judgment can be found here.
