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Family analysis: Maud Davis, partner at TV Edwards LLP looks at the issues raised by the case of Re W; Re F (Children)  EWCA Civ 1300 where the court described breaches that resulted in two of the Achieving Best Evidence (ABE) interviews with the children falling ‘woefully short’ of the requirements set out in the guidance.
Re W; Re F (Children)  EWCA Civ 1300,  All ER (D) 59 (Jan)
The Court of Appeal, Civil Division, in allowing the appellant’s appeal against findings made in the course of care proceedings that he had sexually abused three children, held that no court could have reasonably found that he had abused any of those children on the basis of the evidence adduced before the recorder.
What were the evidential problems in this case?
The evidential problems fall into three categories. Firstly, ‘wholesale and serious’ breaches of the 2011 ‘Achieving Best Evidence in Criminal Proceedings—Guidance on interviewing victims and witnesses, and guidance on using special measures’ (the guidance). These breaches resulted in two of the Achieving Best Evidence (ABE) interviews with the children falling ‘woefully short’ of the requirements set out in the guidance. Baker J refers to the interviewing officer asking ‘blatantly leading’ questions when introducing the topic of the allegations, then continuing to lead the child by referring to what had been said in earlier conversations; and to other examples of leading questions that ‘littered both interviews’.
Allied to that, the evidence of the oldest child, M, was challenged, partly because of the failure to comply with the guidance in interviewing him. It was submitted, on behalf of the appellant, that a number of other explanations for the children’s sexual knowledge and behaviour were possible, and M’s account could not be relied upon.
The second evidential problem was the failure of police officers and social workers to take adequate notes of conversations with the children, for instance when two of the children were visited at school as part of an investigation by the local authority under section 47 of the Children Act 1989 (ChA 1989); and when there was a later conversation with one of those children. In particular, there were no contemporaneous social work records of either conversation, with only a note, included nine months later, in a report described as a ‘s 47 report’.
Thirdly, there was the limited value of the medical evidence. Although Baker J accepted that, overall, the fact that several of the children displayed signs consistent with abuse was a matter of concern, none of the individual signs, in and of itself, was diagnostic of abuse. The examining physician, a consultant paediatrician referred to as Dr O, had been careful to describe the ‘abnormalities’ he found as consistent with, but not diagnostic of, sexual abuse. The problem with Dr O’s evidence was not that it was flawed, as such (as was the case with the ABE interviews). Rather, too much weight was placed upon it in the first instance judgment.
How did failure to comply with ABE guidelines impact on the case?
Baker J expressed sympathy for the first instance judge, and for the police officers and social workers who investigated this complex case. However, he was clear that the first instance judge’s ‘difficult forensic task’ was made ‘much harder by the deficiencies of the investigation’. He acknowledged that the guidance is detailed and complex, but pointed out that the courts require high standards in these sorts of investigations, otherwise ‘miscarriages of justice will occur and the courts will reach unfair and wrong decisions with profound consequences for children and families’.
He went on to state that ‘the extent of the deficiencies in the investigation and interviews were so great that it was unsafe to place any weight at all on what was said by the children in the two interviews’.
That, in turn, was one of the reasons why Baker J concluded that it had not been safe for the first instance judge to rely on the oldest child’s allegations against that child’s own father.
The upshot was that Baker J decided that the findings against the appellant could not stand, the children’s evidence having been ‘rendered wholly unreliable’, and the appeal was allowed.
Does this case highlight pitfalls for local authority children’s services when dealing with cases of this nature?
The local authority had clearly relied upon the ABE evidence gathered by the police. The judgment does not suggest that social workers had carried out their own investigation—nor would they be expected to, given the potential for re-traumatising the children by conducting a parallel investigation, repeating the work of the police.
The difficulty lies in how the case was pleaded, and the extent of the local authority’s reliance on obviously flawed ABE evidence. The ChA 1989, s 31 threshold was crossed in any event, irrespective of any findings of sexual abuse, as a result of concessions made by the two mothers in the case, in respect of all seven children.
Arguably, the local authority could have addressed the issue of the children’s sexual knowledge and behaviour in other ways, for instance by suggesting therapy, rather than seek findings of fact when the evidence was so flawed.
What are the practical implications of the decision for best practice for those dealing with this kind of case?
The most obvious point concerns the training and supervision of anyone conducting ABE interviews, and the need for strict compliance with the guidance. Baker J cited the judgment in T v A City Council (fact-finding: finding of sexual abuse)  EWCA Civ 17,  All ER (D) 142 (Jan) (which concerned an earlier version of the guidance) as follows:
'52 …the Guidance makes it clear that the interviewer has to keep an open mind and that the object of the exercise is not simply to get the child to repeat on camera what she has said earlier to somebody else. We regret to say that we were left with a clear impression from the interview that the officer was using it purely for what she perceived to be an evidence-gathering exercise and in particular to make LR repeat on camera what she had said to her mother. That, emphatically, is not what ABE interviews are about and we have come to the view that we can place no evidential weight on it.
53 Against this background, the judge’s assessment that LR was a forthright child capable of standing up to and overcoming incompetent interviewing does not in our judgment stand up to analysis…it is not sufficient for a judge to rely primarily on the fact that the child is able, when being interviewed, in a thoroughly unsatisfactory manner and contrary to the Guidance, to make a number of inculpatory statements. A clear analysis of all the evidence is required and the child’s interview must be assessed in that context.’
Baker J later concluded that in two of the ABE interviews, the police officer ‘continued to lead the child by reference to what had been said in the earlier conversation—precisely the error identified in TW’. He also refered to the breaches of the guidance, in those interviews: ‘there was no rapport phase, no real ground rules discussion, only a perfunctory discussion of truth and lies, and no opportunity for free narrative’. These are indeed shocking and basic breaches of the guidance.
The joint investigation carried out by the police and social workers made matters worse, with the lack of accurate, consistent and contemporaneous notes of conversations with the children. The standard of record keeping in such cases has to be high, with scrupulous attention to accuracy and detail.
It is not clear what the children were subsequently told about the outcome of the appeal. At some stage, they will have to know, and come to terms with the fact that they were let down—whatever the truth of the matter—by the agencies responsible for protecting them. If nothing else prompts better practice, that should.
Interviewed by Anne Bruce.
The views of our Legal Analysis interviewees are not necessarily those of the proprietor.
This News Analysis was first published in LexisPSL Family. Click here for a free one week trial.
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