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Tag Archives: ABE interview

Hounds of justice

 

 

 

I was momentarily tempted to headline this piece

 

Qui odoratus Isacus, de qua n eam

But then I remembered that I didn't do Latin at school, so I've no way of checking whether 
Google translate is right when it claims that this is the Latin for "He who smelt it, dealt it". And I knew the comments would be full of corrections to it.


This is a curious little case, involving a flawed ABE interview.  Not that unusual, it is more startling to find a judgment which commends the ABE for good practice than castigates it for bad.

This one though involves both anatomically correct dolls being used by the intermediary (The 1980s faxed and said "hi") and a dog being brought in. 

Yes, a dog. 

A real one. 

https://www.bailii.org/ew/cases/EWFC/OJ/2019/B36.html

Re J and K (Flawed ABE interview) 2019

 I don't think His Honour Judge Hayes QC was too enamoured with this process. 


  1. As to the presence of B the dog in the interview room, I have never before seen a dog present during an ABE interview. There was no good reason to have a dog in the room and I find that it was misguided to have the dog present.  What took place during the video (summarised below) amply demonstrates why I say this.
  2. The purpose of the video was to speak to and elicit a free narrative from J.  And yet there were frequent times during the video when the dog took centre stage and attention / comments were directed to the dog rather than J. At one point, the dog took up a position on one of the chairs. The chair was there for child J, not the dog.
  3. On more than one occasion, the dog licked J on the face and on her hand.  J was distracted by this.  The adults were enamoured by it.  I was left asking myself why it was happening at all during an ABE interview of a young child


At one stage, after a vitally important (and pretty leading)question had been asked, the whole interview then forgets itself because of a certain doggy odour 

J Because he said, “Don’t ever tell anybody and we’ll do it, er, when mummy isn’t here and when mummy is here we’ll cover them up”
Officer Okay.  Do you smell a little smell in the room?  Do you think B has [done] a little trump?
J Yeah.
Intermediary Has she?
Officer I’m not sure.  I think so.
Intermediary Oh no.
Officer That’s okay.  She’s okay. Can you smell it or it is just me?
Intermediary I can’t smell anything.
J I can.
Intermediary Can you? Oh no, it’s probably going to reach me in a minute.
Officer That’s okay.
Intermediary Sometimes she gets a bit of wind.
Officer That’s okay.  That’s what animals do isn’t it?
J And we do.
Intermediary Yes, and we do.


So it was that what J said at the start of the above exchange about what her father had said to her (clearly a worrying account) was not developed any further.  The smell made by the dog distracted the attention of the officer, the intermediary and the child. The conversation turned from what J said to a discussion about the dog breaking wind.  It is simply unacceptable that that this happened.

 

[65]  As I have said, the observations that I have made do not, in the circumstances of this case, have any bearing on my findings of fact.  But the errors that were made could – in other circumstances – have had serious evidential consequences. A poorly conducted ABE interview has some parallels with a police officer (or some other person) trampling over a potential crime scene rather than adhering to essential forensic guidelines.

 

[66]  The video interview of J on 22 November 2016 regrettably strayed from its objective of “achieving best evidence” from the child.  It would be helpful for my observations to be fed back to the officer and the intermediary and, subject to considering any representations to the contrary by the parties, I will give permission for them to see this Judgment (or part thereof) for that purpose.  My observations are intended to be constructive criticism .  I hope that they are read in that spirit and that those involved will reflect on what went wrong and avoid making the same mistakes in the future.



Maybe I should have called it Never Work with Children AND animals...
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For his own amusement

“It was a bright cold April day and the clocks were striking thirteen”

“Hale knew, before he had been in Brighton three hours, that they meant to murder him”
“All this happened, more or less”
“It was a queer, sultry summer, the summer they electrocuted the Rosenbergs and I didn’t know what I was doing in New York”

Those are great opening lines (1984, Brighton Rock, Slaughterhouse Five and The Bell Jar, respectively)

This is one of the best opening lines in a judgment I’ve ever seen.

“First of all, my decisions. I find proven the following facts, and I am taking them in chronological order, as regards the BB gun incident, I find as a fact that F deliberately shot W with the BB gun for his own amusement”

Tell me you’re not hooked.

The words were crafted by His Honour Deputy Circuit Judge Brasse (This is my first time with one of his judgments, and he has sky-rocketed to very high up on my list of Judges that are always worth reading)

Kent County Council v A,B,C and D (Children : Weight to be attached to evidence of child after flawed ABE interviews) (Rev 1) [2017] EWFC B72 (01 March 2017)

http://www.bailii.org/ew/cases/EWFC/OJ/2017/B72.html

The case involves a lot of findings about sexual abuse, which I’m not going to put into the blog. I don’t have a strong enough stomach for them. And I’m conscious that this blog comes into people’s email in boxes, often early in the morning. So I have spared you all the grim stuff. It’s very grim.

For those who don’t know, a BB gun is commonly known in England as an air rifle. It uses compressed air to fire small pellets. Those pellets can, if the range is wrong, pierce the skin or cause fractures. No normal human being would shoot one at a child.

179. A in her statement says that F was playing with an airgun at their home when he shot W with a pellet in the stomach. On 28 September a teaching assistant, noticed when she was changing for swimming that W had suffered a bruise to her hip. When asked how it happened she stated that she was clumsy and did not know. W then showed the teaching assistant another mark on her lower back. Then she stated that F had shot her there with a BB gun pellet. This was reported to H, the deputy head teacher, on 29 September 2015. She spoke to W, and W recounted that F had been in his bedroom, he had got the BB gun and shot her in the back last week. They were standing next to the bed and he had told her to put on her Mum’s jacket and then had shot her. She did not want to say that it hurt as she gets into trouble for being “mouthy”. H asked her if she had told her mother and W said that she had, and her mother told her that she should not have let F do it.

180. H liaised with 1B from the Social Services Department. At a joint visit by a social worker and DC Mitchell, both spoke to her. She said she got on well with F and did not want to get him into trouble. She said they had been playing a game. She told Detective Constable Mitchell that F had asked her to go into the bathroom and told her to put on her mother’s jacket and then had shot her. The police report made by Detective Constable Mitchell states that W became upset when she recounted this incident. She said that the injury had hurt at the time but she had not wanted to say anything as she “is always getting into trouble for being mouthy”. Later she told her mother, who became cross with her, telling her that she should not have allowed F to do this to her. W said that at the time of the incident the Mother was not present.

181. She gave a more detailed account. She said: “We were playing. I was standing in Mum’s and F’s bedroom playing the shooting game. It’s a BB gun with little white bullets. He was having fun with me. It hit the bottom left of my back and made me cry.” She said that he, F, had “belly flopped” her to try to make her feel better, but it did not work. She said that later that day, playing the same game, he had shot X, but he had protected his leg with a towel. X was hurt on the arm.

182. When the Mother was spoken to, she confirmed that there were BB guns in the house, kept in her bedroom where the children were not allowed to enter. They were not locked away and kept loaded (highly careless with young children around). She recalled an incident when she had heard W cry. She stated that she had not been aware that F had shot W. She seemed to think that Y, then only three years old, had been responsible. She denied that W had ever mentioned to her that F had shot her. She said that F suffered from schizophrenia, which is not true, and Asperger’s Syndrome, which is possibly true, but was brilliant with the children. The Mother reported that the air guns had been removed from the home to F’s parents’ address. In her recent statement A said that when she was questioned at the time she panicked as she did not want to lose the children. She lied and denied that F caused the injury and alleged instead that X had done it. She may have meant Y; that is who she is recorded to have blamed.

183. F was questioned by the police and social workers. He denied using the BB gun in the house or hurting W.

If possible, it is even more distasteful that father sought to deflect blame for this appalling behaviour onto an innocent three year old child.

274. My findings of fact are as follows. Number 3, as regards the BB gun incident, I find as a fact that F deliberately shot W with the gun for his own amusement. Although, as I find, he told her to wear her mother’s jacket to soften the impact of the bullet, it was a grossly irresponsible act which could have caused very serious harm. I find that both the Mother and F punished W for reporting it by angrily scolding her and sending her to stay with Q. It demonstrated the Mother’s inability to protect the child from harm and a willingness to prioritise the interests of her relationship with F above the safety of the child. This was in itself a traumatic experience and did lasting harm by making W very reluctant to confide in professionals assigned to safeguard and promote her welfare, and hence made her more vulnerable to further abuse.

Almost every factual issue in the case was disputed and fell to be decided by the Judge, who provides a master-class in how to deal with disputes in a wide variety of areas. Too many to be completely covered by this blog, so I’m going to pick out a few.

38. The court should take into account the inherent probability or improbability of the relevant alleged incidents. The court, in addition, must not, however, guess or speculate or draw inferences from what are still only suspicions rather than proven facts. Mr Johnson forcefully made the point that in this case there were a number of unproven allegations against his client and this was not the French Revolution where people are found guilty of suspected offences. Mr Johnson’s point is that past allegations are only relevant if proven. He is right. If established, they may well provide evidence of propensity. The Court may, however, arrive at reasonable conclusions based on proven facts.

45. The child’s statements, whilst they must be taken seriously, must not be assumed to be true. The use of the word “disclosure” should not be used in relation to them; they remain allegations until and unless they are proven.

46. There is statutory guidance in Achieving Best Evidence in Criminal Proceedings (March 2011 Edition) which should be followed when conducting the initial questioning of a child to see if there is a matter to be made the subject of recorded interview, and then on how to conduct the recorded interview itself. The guidance lays emphasis on the need for planning; the recording of all decisions to follow, or not to follow specific guidance, or any other matter which materially affects the interview; and on the manner of interviewing a child witness. In this regard the guidance requires the interviewers to explain to the child the ground rules of the interview; to establish whether the child knows the difference between truth and lies; and to allow the child to provide free flowing narrative at their own pace and in their own language, aided rather than directed by the contents and manner of the questioning. Thus, leading questions should be generally avoided; questions should be kept short, taking one fact at a time; and allow the child time to answer.

47. In general, interviews should be conducted as soon as possible after the initial allegation. There should rarely be more than one interview. The responses of the child should not be led or pressured from him. Questions should be simple, factual, and interviews should be kept as short as possible in keeping with the age and concentration span of the child.

48. Mr. Justice Macdonald in AS v TH and BC and NC and SH [2016] EWHC 532 (Fam) stressed the importance of compliance. At paragraph 52, in reviewing the effect of the relevant authorities, he said that “where there has…been a failure to follow the interviewing guidelines, the court is not compelled to disregard altogether the evidence obtained in interview, but may rely on it together with other independent material to form a conclusion. However, where the court finds that no evidential weight can be attached to the interview the court may only come to a conclusion that relies on the content of the interviews where it has comprehensively reviewed all the other evidence”. This I have endeavoured to do in this case.

49. In Re E (A Child) 2016 EWCA, what emerges from judgement of Lord Justice McFarlane at paragraph 98 is that where there have been numerous and substantial deviations from good practice by police in carrying out the ABE exercise, these need to addressed and analysed to assess their effect on the reliability of the evidence obtained. I have found that guidance of particular help in this case.

50. The evidence of X regarding sexual abuse and W regarding the air gun incident is hearsay, which is admissible in children proceedings pursuant to the Children (Admissibility of Hearsay Evidence) Order 1993. But great caution is needed as the evidence cannot be tested by cross-examination. What weight can be placed upon it should be assessed by having regard to the factors set out in section 4 of the Civil Evidence Act 1995, which applies to family proceedings. Section 114 (2) of the Criminal Justice Act 2003 applies only to criminal proceedings, but is also apposite to any fact finding exercise based on hearsay evidence.

51. I remind myself of section 1 of the Civil Evidence Act 1995. The Act begins with a caution, because it made a radical inroad into the rule that hearsay was inadmissible. Section 4 then gives useful guidance to the court on how to estimate the weight to be given to hearsay evidence. Weight is a legal concept. It means the importance that a tribunal of fact places on a piece of relevant evidence. There is no need to weigh irrelevant evidence. A single piece of evidence can outweigh other evidence. Section 4 sets out that ‘the court shall have regard to any circumstances from which any inference can reasonably be drawn as to the reliability or otherwise of the evidence’. Subsection (2) sets out a list and I have each of those factors very much in mind when I weigh evidence of those witnesses who did not give evidence in court. I have directed myself that the factors within section 4 do not comprise an exclusive list, and section 114 (2) of the Criminal Justice Act 2003 lists other factors not included in section 4 of the Civil Evidence Act 1995. I have incorporated those factors when considering the evidence in this judgment too.

On the issue of allegations that the mother continued a relationship with father after learning that he was accused of horrendous sexual abuse of her children, the allegations were in part from identifications and sightings of them together and in part from social media (remember, even following the recent blog post about monitoring of social media that the evidence is admissible even where it is alleged to have been unlawfully obtained – I don’t see any allegation in this case that it was, so let us not make any assumptions either way)


Facebook entries

91. Both Mother and F have Facebook accounts. If a person posts a message or photograph on Facebook his friends, people who have agreed to share their Facebook with him and communicate with him by Facebook, can indicate the degree of their approbation on his Facebook account page by a thumbs-up sign which means that they like it, or a heart sign if they love it. Facebook pages can be closed to prying eyes of the outside world by privacy settings, but F’s is left open so that the social worker has been able to visit his page and see who has approved his postings. F said that he “unfriended” A after his bail conditions were imposed on 12 February 2016, and she says she blocked him from her Facebook account around that time, but nonetheless she reappeared as his Facebook friend thereafter and proactively sent approbating signs to his postings.

92. What the undisputed evidence has established is that A thus remained his Facebook friend until at least December 2016 and approved his postings (which included on 16 February 2016 photographs of Y and Z taken on 2 February 2016), once in June 2016, three times in August 2016 and on 20 November 2016. As I shall later explain, from September 2016 onwards she accepted what X had alleged against F was true. On 20 October 2016 she shared with F on his Facebook page a photo of X taken on 20 October 2016, and this was the anniversary of the photo, well after she had accepted the truth of X’s allegations. Furthermore, it was done just five days before the start of this hearing and a month after the Mother had signed a statement saying that she now believed that F had sexually abused her son.

93. A gave various explanations. Before anyone became aware of the approbations in relation to the “like” sign sent by her on 20 November 2016, she said that she did not realise that she had approved F’s postings. Then, when the earlier postings were discovered by the social worker sitting in court using her own smartphone and were shown to the Mother, she agreed that she was aware that she was sending her approval postings to put up on F’s page. When asked why, after she knew what he had done to her children, she was prepared to send a thumbs up and on one occasion a heart to his Facebook page showing that she liked or loved his postings, she said: “It’s not a crime to like someone’s postings.”

94. F says that he was the passive recipient of these communications from the Mother. He did not check his account to see who sent him communications. She was proactive but he was not, and there is no evidence that he ever replied to the Mother. But in my judgment a reasonable parent who believed her child had been sexually abused by another would not approve anything the perpetrator posted on Facebook. She would not wish to communicate with him or even his Facebook page at all, for any reason. It implies either that she did not really believe he was the perpetrator or did not care. It also makes it more likely that she was in touch with F in other ways as well, as Facebook communications must often be one facet of a more rounded relationship.

On the alleged sightings of the parents together, the Judge gives an immaculate summing up of the relevant law

96. This is a disputed identification case. The court must direct itself in accordance with the Court of Appeal’s guidance in R v Turnbull [1997] QB 224. In this case an important issue turns substantially on the correctness of one or more identifications of F being with the Mother, which they allege to be mistaken. In such a case it is imperative that the judge should warn himself of the special need for caution before making a decision on the basis of the correctness of the identifications. Additionally, the judge should remind himself as to the reason for the need for such a warning, namely that a convincing and honest witness can be a mistaken witness. Secondly, the judge should direct himself to examine closely the circumstances in which the identification by each witness was made, and some of these circumstances may include, for example: for how long was the accused under observation by the witness; at what distance was the witness from the accused; what length of time elapsed between the original observation and the subsequent identification to the police or Social Services? The judge should also remind himself of any specific weaknesses which have appeared in the identification evidence.

97. As for recognition, it is commonly accepted that recognition is more reliable than identification of a stranger. However, even when the witness appears to recognise someone who he knows, the judge should remind himself that mistakes in recognition of close relatives and friends are sometimes made.

98. The quality of the evidence. If the quality is good and remains good at the close of the case having heard all the evidence, the danger of a mistaken identification is lessened, but the poorer the quality the greater the danger. When ,in the judgment of the trial judge ,the quality of the identification evidence is poor, the judge should not rely on the identification evidence unless there is other evidence which goes to support the correctness of the identification. The trial judge needs to identify to himself the evidence which he believes is capable of supporting the evidence of identification.

As we can see from the title of the piece, flaws in the ABE process were a particularly striking feature of the case (I’m snipping out the graphic details about the nature of the alleged – and now proven – abuse.

Admitted breach of ABE guidelines

229. On that day Detective Constable Carter and Detective Constable Farmer interviewed X, the former asking the questions. DC Farmer agreed that they had been instructed by a superior to get on with the interview, leaving them no time to plan it properly. She admitted that they had failed to observe the ABE guidelines in four important respects; she made no excuse and could offer no explanation. One possible explanation that emerges from the interview itself is that X was so willing, ready and able to give his account, in their eagerness to hear it they forgot these fundamentals.

230. Planning: although the importance of planning the interview is stressed in paragraph 2.1 of the guidance, none was done and there was no record of a plan, as required by paragraph 2.222. Intermediary: no consideration was given to the need or otherwise of one, as required by paragraph 2.94. At the outset of the interview the guidance provides for the establishing of a rapport with a child by talking about mutual topics and importantly explaining ground rules. As the guidance says at paragraph 3.12, the interview is an alien situation. What will happen will need explanation. This was done, albeit very briefly. As the interview proceeded it became apparent that X had picked up the ground rules without questioning – video recording, et cetera – which showed that he was an intelligent child.

231. The evidential effect of failure to address the difference between truth and lies

232. The officers failed altogether to establish whether X knew the difference between truth and lies. It was admitted that this failure went to the heart of the reliability of the ABE interview. The stage at which the witness is asked to distinguish truth and lies is an important safeguard and guarantee of reliability, but it is not the only one. The video recording itself gives the court a chance to examine the child’s statements in detail. The quality and pace of the questioning is a very important feature of the interview. In this case it was good. The surrounding evidence gives the court a chance to check the facts. It is clear from extraneous evidence, for instance regarding the BB gun incident and a subsequent interview on 26 February 2016, that he, X, did understand the difference between lies and truth because he admitted to telling a lie. Ultimately the court’s assessment of the substance of his account is the most important test of whether this is a made up or truthful account. It is important to have these failures in mind, however, when evaluating the weight to be given to X’s statements and I have kept them in mind as I have done so.

233. In this interview X seemed relaxed and happy to talk to the officers. It was a relatively short interview, fifteen minutes or so, and there was no sign that X ever tired or flagged. He was asked to give his name and age, he was told that the purpose of the interview was to have a little chat with him. He was reminded of two cameras on the wall and knew that they showed him and April Farmer. He was told of the microphone, it would be recorded on DVD. He seemed to understand all of this. He was told that 1A was a social worker. He agreed he knew her role was to keep him safe. He went through the members of his family and the living arrangements in the home and in the bed and breakfast. I am fully satisfied that X very quickly grasped the purpose of the interview. He plainly understood that it was being recorded. He was familiar with the technology of DVDs. He knew what he was going to be asked about, as became very quickly apparent.

234. I am fully satisfied he knew the difference between truth and lies, as was demonstrated over and over again before, during and after this interview, as I have commented in the course of this judgment. So I conclude that although the truth and lies routine, important as it is, was not gone through, its lack of itself did not substantially impair the quality of the evidence obtained in the interview.

235. The initial questions about his family and home were concordant with the ABE guidance in that they helped put him at ease. What is notable is that it was X who hastened the interview to reach its point: an investigation of his allegations

(details omitted)

242. I comment: (1) the ground rules were established. In my view they often take too long. Detective Constable Farmer agreed with that point of view. (2) The truth and lies routine was missed out but, as I have already commented, there is abundant evidence that X knew the difference. (3) It is striking that the allegation made against F by X was volunteered after an unrelated question. (4) The interview was relatively short. (5) X was able to concentrate. The social worker’s assessment at page C84 of the evidence was that: “X was able to follow instructions, concentrate for long periods and show respect.” In my judgment that was borne out by his behaviour in the interview. The questions were generally short questions containing single subjects. (6) As regards a description of the events recounted, they were naturalistic and realistic. (7) It was not implausible that F abused the other children as reported by X, believing that they would not speak out, and X could have seen the adults engaged in sexual intercourse, including fellatio. Reference to F doing it to himself, as I mentioned earlier, must have been reference to masturbation, a part of the sexual routine. (8) As to numbers and times, he was only six years old and unschooled. (9) If he told the Mother – this is very serious – instead of reporting the behaviour of F towards X to the police, as she had promised X she would, she did the opposite and alleged to the police that X had lied. In my judgment this was the supreme betrayal.

Second Interview

243. After the Mother’s claim that X had lied, he was interviewed again on 26 February 2016, this time with Detective Constable Farmer. Once again Miss Farmer admits frankly she forewent the ground rules, the truth and lies routine prescribed by the guidance. During this interview X’s demeanour was altogether different to that of the first interview. He was restless, fidgety, moved around the room, often hid his face behind a folding game board and his answers were often rambling, digressive and incoherent, revealing an internal confusion and anxiety which had not been present at all during the first interview. This was a little boy who was manifestly uneasy, struggling with the shame of confessing that he had told terrible lies about F, or alternatively lying against his will or better nature that his original account had been untrue.

244. The interview began with the day of the week, his name, age and identifying the names and roles of the adults present, the location of the police station and the functionalities of the interview room and the camera. They quickly got to the point. Question: “Do you remember the last time?” Answer: “Yeah.” Question: “You spoke to Marie,” that is Detective Constable Cutter, “can you remember what you said to her? Who did you talk about to her?” Answer: “It’s not true.” I comment that it came out so quickly it was clear that he knew that that was what he was there to say, but whether or not that was true is the issue. Question: “What do you mean?” Answer: “It’s not true because I saw it on TV.” This is a striking answer; it suggested extreme pornography seen on TV in the bed and breakfast hotel. This was also a suggestion made by F in his interview about how X could have come by the knowledge of such sexual behaviour, but this suggestion has, as I have already observed, been retracted by Mother.

245. X could not remember the day he saw it but said he was in bed at the time. He slept next to the TV. Asked to describe what he saw, he said he saw some rudeness. Question: “Who was on the TV.” Answer: “It looked like my Dad but it was on the TV.” He wanted the interviewer to believe that what he had seen was only a TV show. He was then asked to describe what he saw on the TV and his account became increasingly implausible as an explanation for having said that [details omitted]. Question: “Was anyone else on the TV?” Answer: “A lady danced with him. They wore swimming costumes. The man wore a marry costume,” clothes in which you get married. He was unable to explain what he meant by his earlier assertion there was rudeness. Asked where was his mother, he said nowhere, and then in the shower, and his Dad was cooking and W was in bed. So he was describing in fact an innocent TV show about marriage or swimming when he, W, Z, Y and F were going about routine activities. He was unable to describe the rudeness at all. This sounded like a mere embellishment to give some force to his original assertion that the lie he had told about F was something he had learned from seeing a TV show. He described Dad cooking a “burger meal” for dinner. Then he said he saw Dad flipping pancakes.

246. He was brought back to the point. Question: “So you said you had seen something on TV, what you told us about. Was that true?” Answer: “That always be true.” Question: “What you said about F.” X did not respond, he seemed to be squirming. Question: “So when you said you saw something on TV, why do you say that?” Answer: “I get confused.” He was then asked when he previously spoke to Marie Cutter and told her what had happened with F, was that the truth? Answer – at this point X was hiding his face behind the board and needed to be asked to lower it for the camera. He said: “Yeah.” He was asked if anyone had spoken to him about it. He said: “My Mum didn’t – told me to, I told her.” He was asked: “What do you mean?” He said: “The truth.” He was asked who told him to tell the truth and he said no-one. He was reminded that he had just said that “your Mum didn’t tell you. What did you say? Your Mum.” Answer: “Didn’t tell me to tell the truth. I telled (sic) her.” He was asked: “What is the truth?” and he said: “It’s the truth of what we are doing right now.” He said that he had talked to his Mum about telling the truth, and she had said: “If you want to do it then everyone said back me up, they are.” He elaborated: “They’re going actually give me money.” “Who?” Answer: “Mum.” “What for?” Answer: “For telling the truth.”

248. I comment that X’s comment of why he had lied is so implausible as to be unbelievable. It had all the hallmarks of imperfect coaching, where he had remembered to insist that he had previously lied but could not explain why he had lied at all or how he had got the detail and graphic information which he had used in the earlier lie. He sounded as though he was telling the truth when he said several times, in explanation for his confusing account, that he was confused. He certainly sounded and looked confused. His account of talking to his mother and insisting that he told her he had lied sounded scripted. X, when he was determined to tell the officers that he had lied and he had confessed to lying to his mother, tried to take control of the interview, volunteering the information, but he was utterly confused when he tried to substantiate this retraction. There were moments when he provided plausible explanations for his retraction: his mother had spoken to him; she had promised him that everyone would back him up; and she had offered a bribe of money. Most significantly, when asked if he had indeed told the truth during the first interview, he said: “Yeah.”

249. This interview was an unconvincing retraction of the very clearly stated accusation made during the first interview. It being entirely unconvincing, it tends to support the truth of the account given by X in his first ABE interview, which he found far easier to relate. As in the first interview, X was not asked whether he knew the difference between lies and truth. The importance of this is to give him a chance to demonstrate this knowledge. But he had demonstrated this knowledge on other occasions: (1) the BB gun incident, he had originally claimed to have shot W, then confessed that F had done it; (2) the subject of the difference between truth and lies had been given prominence by his mother in the days after the first interview; (3) in the second interview the subject matter was about truth and lies, and he showed he knew the difference; (4) H, who knew him very well, and 1A had both found him to be a truthful child.

After a detailed and thorough analysis of the evidence and the disputes, and making a number of very serious findings against the father the Judge concluded this:-

291. I shall direct there be a transcript of this judgment and it should be sent to the Kent Constabulary. I recommend that the CPS consider the question of charging F under section 5 of the Sexual Offences Act 2003, the rape of a child under the age of thirteen, with rape of X and his siblings. The ABE interviews of X taken together were the most compelling evidence of his guilt. The second interview, the so called retraction, strengthened rather than weakened the effect of the first. The Mother’s evidence of the pressure she put on X to retract is important explanatory evidence. The contents of F’s own interview under caution further supports the reliability of X’s evidence. Under the recently introduced system of ground rules hearings, intermediaries and pre-recorded cross-examination of the child, a prosecution would be viable and in the public interest.

292. Additionally, I recommend that the Kent Constabulary consider applying for a Sexual Risk Order under section 122A-K of the Sexual Offences Act 2003 as amended by the Anti-Social Behaviour, Crime and Policing Act 2014 Schedule 5 paragraph 4, as it is necessary to protect vulnerable women and their children from physical and psychological harm from F. The prohibition runs for not less than two years and in my judgment it is likely to be required for much longer. That is the judgment of the court.

Child questioned on FORTY FOUR occasions about alleged abuse by father

Such abuse turning out to have never happened and having been fabricated by the mother.

 

This is an extraordinary case heard by MacDonald J

AS v TH (False Allegations of Abuse) [2016] EWHC 532 (Fam) (11 March 2016)    

http://www.bailii.org/ew/cases/EWHC/Fam/2016/532.html

It was a private law case, though one threaded through by involvement with social workers, police officers and therapists.  It began when the mother of two children N and S, left TH (the father of S) and moved from Scotland to England.

She then made a series of allegations of abuse by TH, both against her and against the children.

To turn to the paragraph that gave this post its headline

 

78. Namely, that between 11 August 2014 and 29 July 2015, and when account is taken of the intervention by CAMHS that I will detail later in this judgment, the children were questioned with respect to, or seen as a consequence of the allegations made in this case, often in the presence of each other and their mother, by no less than nineteen professionals on no less than twenty occasions for S and no less than forty-four occasions for N. Five different police officers were involved with interviewing the boys.

 

The Judge notes at the end of the judgment, the comments of the Guardian.

235. The Children’s Guardian attended each day of this fact finding hearing. Having listened to the evidence in this case the Children’s Guardian told the court that she considered this case to be “quite extraordinary“. Surveying the conduct of professionals in this case she concluded that “it is as if a sort of hysteria took over and prevented people from asking certain questions“. I cannot help but agree.

 

To be honest, the case is peppered with judicial despair/horror about what had happened, and I could pluck critical paragraphs from almost anywhere.

But the opening gives you a flavour of where things are going:-

 

  1. This is very troubling case. In Re E (A Minor)(Child Abuse: Evidence) [1991] 1 FLR 420 at 447H Scott- Baker J observed:
      1. “It is disappointing that, despite the passage of time since the Cleveland report, several witnesses had either not read the report at all or, if they had, they ignored its conclusions in many respects. Permeating the whole case is the underlying theme of ‘the child must be believed’. Of course what any child says must be listened to and taken seriously, but the professionals must be very careful not to prejudge the issue”.
  2. Seventeen years later Holman J felt compelled to make similar observations in the case of Leeds City Council v YX & ZX (Assessment of Sexual Abuse) [2008] 2 FLR 869 at [143] as follows:
      1. “I wish only to stress…the very great importance of including in any assessment every aspect of a case. Very important indeed is the account of the child, considered, of course, in an age appropriate way. An express denial is no less an account than is a positive account of abuse. It is also, in my opinion, very important to take fully into account the account and demeanour of the parents, and an assessment of the family circumstances and general quality of the parenting…Even 20 years after the Cleveland Inquiry, I wonder whether its lessons have fully been learned.”
  3. Eight years after the decision in Leeds City Council v YX & ZX and nearly 30 years after the Cleveland Inquiry I have found myself during the course of this hearing asking myself the self-same question as that posed by Holman J.

 

 

And the closing

 

  1. 230. I am satisfied that that N and S have been the subject of emotional abuse by their mother by reason of her conduct towards them as set out above. I am satisfied that as a result of the conduct of the mother detailed in this judgment both children have suffered significant emotional harm.
  2. As I stated at the outset of this judgment, this is a very concerning case. In August 2014 the mother manufactured alarm using a falsified version of past events in an attempt to avoid returning the children to Scotland. Using a combination of emotional pressure, inappropriate exposure to adult discussions and, on occasion, coaching, the mother proceeded to recruit the children to her cause. With the aid of repeated and persistent poor practice by a range of professionals the mother further succeeded in enclosing the narrative she had created within a hermetically sealed bubble, thereby succeeding in preventing professionals carrying out the checks that would have revealed that the allegations that were being made first by the mother, and then by the children required, at the very least, a critical and questioning appraisal. Indeed, by reason of their almost entirely unquestioning approach towards the mother, a number of professionals simply acquiesced to their confinement in that bubble. Had professionals adhered to well established guidance and procedure they would have discovered that the allegations lacked credibility.
  3. It is important to recognise that the professional failures I have set out have had consequences. By reason of the failure of the relevant agencies to follow the clear and well established guidance and procedure the children were not only left in a situation where a parent was permitted to persist in conduct that was harmful to their emotional welfare but, by their omissions, those agencies actively contributed to that harm.
  4. Child abuse, including child sexual abuse, exists as a terrible reality in society. Professionals charged with safeguarding the welfare of children must be constantly vigilant. As Ms Lot rightly pointed out to me, professionals are trained to adopt an approach by which they recognise that such abuse can happen anywhere. However, in circumstances where false allegations of abuse are also a reality in society, it is essential that this professional vigilance is allied firmly to the rigorous application of practice and procedure designed to ensure the proper investigation of allegations of abuse if injustices are to be avoided.
  5. Within this context, this case suggests that it is once again necessary to re-iterate the importance of the principles set out at Paragraphs 22 to 52 above. When investigating allegations of child abuse, including allegations of child sexual abuse, it is imperative that all professionals involved adhere to the law and guidance set out in those paragraphs so as to ensure the rigorous and fair investigation of allegations that is the foundation of ensuring the children concerned are safeguarded.
    In terms of detail, the Judge described one of the ABE interviews. Apologies that some of the questions are graphic, but I’m afraid that’s the nature of the allegations. Bear in mind that the ABE guidance is really clear and strong about the need for the account to emerge from the child and the need to avoid leading questions.
      1. 188….DC Hackworthy’s had concluded that S was not suitable for interview. S’s interview on 5 March 2015 took place in the context of him having little notice that it was going to take place, having been removed early from school for the interview, not having eaten and being given snacks prior to the interview, which he consumed during the interview. It is clear from watching the interview that this creates a distraction for S. The items he was given to snack on during the interview were given to him by his mother immediately before the interview commenced and were considered by S to be treats. As with N, at the outset of S’s interview at the outset of the interview DC Glendenning told S that “If you say something really, really interesting she is going to write it down“. DC Glendenning thus, once again, created a cue for S whereby he would know what the “interesting” answers were by watching the officer’s pen.
      2. During the course of his interview S stated that his father had hit him on the arm and had choked him. He said this happened when the mother went to “Nanny S’s” with N but his father said he could not go. S also alleged that his father gave him wine (a new allegation). Later S also alleged that TH punched him in the neck (also a new allegation). Thereafter S repeatedly made clear to DC Glendenning that that is the sum of what had happened he has nothing more to say. From watching the interview it is clear that S is very firm in this regard. Notwithstanding this, DC Glendenning continued to push S to reveal further matters. At this point the interview departed even further from the precepts of the guidance.
      3. After S has stated eight times that nothing else happened DC Glendenning embarked on the following exchange with S:
          1. Q: Right, what about when you are alone with your dad?

A: When I’m alone with my dad he’s been a, he’s been nice but when Grandma was, is here, he’s been nice when, when she isn’t here, she’ he hasn’t been nice.

Q: OK, has your dad ever done anything dirty to you? Dirty, that you didn’t like:

A: Mmm, nothing else.

Q: Nothing else, erm, also its very important today that we find out everything, erm and also we’ve been speaking to your brother and he said some things that your dad did that wasn’t very nice to him, and that were dirty. Had your brother told you about these?

A: No.

Q: As he ever told you anything that your dad did to him?

A: Mmm mmmm, hasn’t seen and I’ve forgot…nothing.

Q: Nothing, are you sure there’s nothing else that’s worrying ye and?

A: There’s nothing else.

Q: Nothing?

A: Mmmmm.

      1. Prior to this point S has not used the word “dirty” at any stage. In seeking to explain why she had introduced this DC Glendenning said in evidence that it was because it was “difficult to get him to open up” and she was trying to put “it” in S’s terms of something possibly sexual. DC Glendenning appeared initially to be unaware of the forensic difficulties created by the interviewer introducing the concept of “dirty” events in the context of S being alone with TH before S had raised the issue in any way. However, ultimately DC Glendenning accepted in cross examination it was wrong to introduce the word. DC Glendenning accepted that S may well have perceived this as her wanting him to say that his father had done something dirty to him.
      2. Notwithstanding that S had again made clear in response to the foregoing questions that nothing else had happened, DC Glendenning still persisted. She next informed S that she was aware that S had said things to Ms Khanom. DC Glendenning conceded in cross examination that she had no note of what it was that S was said to have said to Ms Khanom and, as set out above, that Ms Khanom had no clear recollection. Within this context the following exchange took place:
          1. Q: Can you remember what you told her?

A: I told her the same as I just told you.

Q: Nothing else?

A: I told her a little bit of it but not that much.

Q: I think she says you like to say it in its parts and its part 1 and part 2 when your talking about things.

A: Mmmm.

Q: And that you said that part 1 was dirty, can you, it’s really, really important if you could tell me what part 1 is today and then you don’t need to tell me again, can you tell me what part 1 is? What your dad did?

A: Mmmm, really don’t want to tell that bit.

Q: It’s just.

A: I really I really don’t like telling that bit.

Q: I know you really don’t like telling it but see, N’s been very very brave today and he’s told us part 1 and part 2, what happened to him. And obviously, we want to make sure that your safe and that you’re here safe with your mum so we need to know what [TH] did, so that we can make sure that your nice and safe and make sure if he’s a bad person that nothing else will happen to anybody else, do you understand that? And I know it’s, it’s scary telling strangers about things that happened but it’s very very important that we know, so that we can do the right thing and we can make sure that the bad man is dealt with, do you understand that? And Mihema (sic) told me that you told her, so just, if you just told me just that once, then I can sort, I can make it all sorted.

A: Well mummy told the nurse but I don’t want told her, the nurse parts1.

Q: I know.

A: Mum told that the bad, bad dirty man done it to me.

Q: I know, but it’s good that your mum told us, but we really need you to tell us, so that.

A: Mmmm

Q: So that we know exactly what happened, you only need to tell it once because that’s why the cameras are here cause one you tell it that’s it. And then you can go back and nobody will be annoying you again. Understand it is very very important. Could you just tell me it really, really quickly?

A: Mmm, Mmm, I couldn’t say it that quickly.

Q: Can’t say it that quickly, how about then, we go back, was it, was it in your dad’s house? In the flat?

That pain in your forehead is because you just banged your head on your desk or keyboard, or any solid object close at hand at how terribly leading that interview is. Oh. My. God.

    1. It is difficult to know where to start with respect to summarising what is wrong with the approach by DC Glendenning set out above. Indeed, the passage largely speaks for itself as an example of extremely poor interviewing practice. DC Glendenning’s questions start from the premise that something “dirty” has happened to S, that TH is the perpetrator (pre-cast by the questioning into the role of the “bad person” and the “bad man”), place emotional pressure on S by telling him that N and his mother are “brave” and “good” for telling what happened and that a statement by him is needed to keep others safe and make promises to S that are unjustified (i.e. if he tells it once he will not have to tell it again). In addition, certain of DC Glendenning’s questions were misleading in other respects. In particular, N had not in his interview made his allegations in terms of “part 1” and “part 2”. Finally, it is clear that S has plainly overheard his mother making allegations to a “nurse” that “the bad, bad dirty man done it to me“.
    2. Within this context, DC Glendenning’s was forced to concede during cross examination that she had during this phase of the interview placed grave pressure on a five year old child to make an allegation against his father. DC Glendenning further conceded that following this passage of questioning that S may well have felt he had little choice but to give DC Glendenning what she wanted.

 

And yet, we’re STILL not done with how bad this ABE could get.

    1. Following the exchange set out above DC Glendenning then proceeded to question S in detail starting, as can be seen, from the premise that something has happened. S told DC Glendenning that what occurred had occurred in Scotland, that he was wearing the pirate costume that he was wearing in the interview (which seems unlikely) and that N was not present. S said that his father did “a naughty thing“. When asked what this was S again limited his allegation to “He. He choked me and he hit me and, and he punched me, and and he, he made me drink that wine“.
    2. DC Glendenning tried yet again. Finally, after telling DC Glendenning that he only wanted to talk to one person, after it was proposed that the other officer leaves the room, and after DC Glendenning said “And you can quickly tell me what happened and then that’s it, would that be OK” S stated that TH “asked me to put his willy in my bum“. S went on to state that “he, he only asked though” and “He didn’t try he just asked“. When DC Glendenning asked “did he ever try and put his willy in your bum” S was adamant that he had not.
    3. Still DC Glendenning refused to accept that as the final position and re-introduces Ms Khanom, asking (again without having access to any recording of what S actually said to Ms Khanom) “Right, erm, when you speaking to Mihema (sic) earlier on, she says that your told her that your dad [TH] put his willy in your bum“. DC Glendenning did not seek to explore with S different versions he had given to Dr Haji and Ms Ille. When, at the end of this exchange, DC Glendenning askes S “Have you ever touched his willy?” S replies “Mmmm of course not“. Later in the interview S states that TH “didn’t do anything to mum“.
    4. Following the interview of S DC Glendenning completed an additional comments form. On that form DC Glendenning recorded her impression of S during the interview as being one of child who “appeared nervous, frightened and confused over what was right or wrong“. Within this context, during cross examination regarding the interviews of S and N on 5 March 2015 DC Glendenning conceded that she was concerned during the interviews that both the children had been coached and that that concern never fully left her during the course of those interviews.

 

 

The social work interview with the children took place WHILST the mother was present and in front of EACH OTHER. I apologise if you now have another blinding pain in the head. Sorry.  Pause for a moment, and pop a pillow in front of you. You will still feel the head-desk urge, but you will now have a softer landing.

 

On 8 December 2014 both children were seen by a social worker from Westminster, a Ms Ille. The records demonstrate that the children were repeatedly questioned by the social worker together and in the presence of the mother and in a highly leading manner that paid no heed at all to proper practice.

 

Once again, I am entirely unclear why Ms Ille, a qualified social worker, saw fit to question the children in company of each other and in front of their mother and to allow the mother to participate in that questioning and to reveal her worries and concerns in the presence of the children. Efforts to secure the attendance of Ms Ille for cross examination proved unsuccessful.

 

Have you got that pillow or soft object handy? If not, get it now. Because we’re going back to a bit about the ABE interview that I didn’t dare tell you before.  DEPLOY your pillow now.  Actually, get a second pillow. Use that too. You are seriously not going to believe this.

 

  1. Further, DC Glendenning stated that she realised straight away that N had notes with him. She further stated that she was concerned that it was possible someone had helped him write those notes. In evidence the mother claimed that N compiled these the night before the interview by himself upstairs. She denied that she talked to him about what he should say in the interview. DC Glendenning was clear in her view that the mother had seen the notes prior to the interview and said as much. DC Glendenning was also certain that the mother had known N was writing the notes and had read the notes prior to the start of the interview. DC Glendenning said she was concerned that N had been prepared for the interview.
  2. Notwithstanding her concerns that N had been prepared for the interview, DC Glendenning proceeded to interview N with his notes available to him. DC Glendenning justified this course of action by reason of N being “desperate” to have access to the notes. N’s desperation to have the notes is clear from the DVD of the interview which I have seen. In particular, it is significant that when it became apparent to N that his notes may be removed, N became flustered and gave a confused answer which indicated that his recollection was not firm.

 

You say notes, I say script, let’s call the whole thing off. Yes, let’s…..

 

There’s another social work investigation, but the social worker doesn’t speak to anyone other than mum and the children, having been told by mum that it is too dangerous for the family for anyone who knows dad to be approached. The social worker had to accept that she had approached the case as though all of the allegations were true, and commended mum for taking protective action when closing the case.

 

  1. I have made reference above to the social worker, Ms Salamant. The refuge made a referral to Hackney Children’s Services on 8 September 2014. Hackney commenced a s 47 investigation on 9 September 2015, which assessment was concluded on 23 October 2014. Ms Salamant was the allocated social worker. There were patent deficiencies in her assessment.
  2. The assessment was completed solely based on information from the mother or information for which the mother was the only source and, latterly, on information gleaned from the children at a series of meetings and, in respect of N, an ABE interview. During her evidence Ms Salamant conceded that, in complete disregard of the principles of good practice that I have set out above, she at no point contacted either father of the children or any member of the children’s extended maternal or paternal families and at no point contacted the children’s previous schools or the health services previously engaged with the children. Ms Salamant further conceded that she did not speak to the mother’s new partner, ER, nor sought to carry out police checks with respect to him (notwithstanding that the refuge expressed concern regarding this relationship).[2] Indeed, until told in the witness box Ms Salamant did not know his address or that he too had children.
  3. Ms Salamant’s omissions were grounded in an apparent unquestioning acceptance of the mother’s claim that it was too dangerous to contact the fathers, the maternal and paternal extended families, the children’s former schools and doctors or the local authorities from whose area they had moved for fear that TH would locate the family. Ms Salamant accepted without question the allegations made by the mother that that TH and BC had “colluded” to find the mother’s address in England, that TH was linked to drug dealers, that “someone” may be sent to England to find the family, that TH was seeking to kidnap the children and that her own mother might accept money from TH to disclose the family’s whereabouts. Ms Salamant made no efforts to investigate whether these matters that the mother claimed prevented a full assessment were, in fact, credible. As I have already set out above, each of the assertions by the mother were, it transpires, entirely un-evidenced and, I am satisfied, untrue.
  4. Finally, and as a consequence perhaps of her one dimensional assessment, it was plain to me having heard her in the witness box that Ms Salamant had proceeded at all times on the basis that the allegations made by the mother and the children regarding domestic and sexual abuse were, without question, true. At no point did Ms Salamant interrogate this assumption.
  5. In light of the findings I set out in the Schedule at the conclusion of this judgment, it is sobering to note that when she closed the case on 23 October 2014 Ms Salamant stated that the mother:
      1. “…has taken all the necessary steps to ensure that N and S are safe from harm and has demonstrated a capacity to reflect on her experiences and provide the children with a sense of stability and safety during this uncertain time.”

On behalf of the mother, Ms Krish concedes, very properly, that Ms Salamant’s assessment, when viewed, as it must be, through the prism of the guidance set out in the Cleveland Report and Working Together to Safeguard Children 2015, was fundamentally flawed and lacked even the basic information upon which to base judgments regarding the welfare of the children or the credibility of their and their mother’s allegations.

 

There was a pre ABE meeting in October 2014, and unfortunately, the recollections of the social worker and police officer as to what happened at that meeting do not only fail to match but they are diametrically opposed.

 

  1. As a result of the mother’s report of what N and S had said on 11 September 2014 the children were seen at the refuge by two Police Officers, DC Card and DC Bishop, and Ms Salamant. The account of DC Bishop and that of Ms Salamant as to what N said on this occasion are diametrically opposed. Neither DC Bishop nor Ms Salamant took contemporaneous, or near contemporaneous notes of their conversation with the children. S refused to speak despite encouragement from his mother in the presence of the two Police Officers and Ms Salamant.
  2. Ms Salamant stated in evidence that upon arrival there was a brief discussion between the adults present in the presence of the children. Ms Salamant stated that this was a “general conversation” at which it was explained to the children that police officers present to ensure they were safe and well. Ms Salamant could not however recall the full conversation. DC Bishop said the mother was with the children for the whole of the introductory conversation during which DC Bishop was talking to the children. In contrast to Ms Salamant, DC Bishop estimated that that conversation lasted 15 to 20 minutes. No record of that conversation was made.
  3. With respect to the allegations said to have been made by N, Ms Salamant could not recall what N had actually said nor the context in which he said it. After returning to the office and nearly three hours after the meeting had begun Ms Salamant made an entry in her records, namely that (a) TH had played with S’s privates, (b) TH tried to drown me and gave me “Chinese” burns and (c) he witnessed TH hit his mother. Ms Salamant also recorded that “N made a disclosure stating that [the mother] is isolated and is not in touch with friend and family“. She conceded that N would not have used the form of language in the record she completed and accepted that her recording was wholly inadequate. She further recalled that the mother had made the same allegations as those she ascribed to N and appeared, ultimately, to be uncertain as to whether that which is recorded in her record came from N or from the mother.
  4. Within this context DC Bishop, having also participated in the conversation with N, recorded in her pocket book only that N “stated that his brother’s dad had hurt him when he dropped food on the floor.DC Bishop readily conceded that her notes were very poor. DC Bishop was however very clear in her oral evidence that N made only one allegation. DC Bishop said that she did not hear N say anything about the matters recorded by Ms Salamant in the social work records. In my assessment, DC Bishop was a more reliable historian that Ms Salamant

 

 

Interview by GP

 

(vii) Appointment with Dr Haji on 8 October 2014

  1. On 8 October 2014 N and S were taken to see Dr Haji, a general practitioner. It would appear that at the outset of the appointment the mother gave Dr Haji an account of the family’s background and of the allegations of sexual abuse in the presence of both N and S. The social work entry records that, in front of S, Dr Haji asked N to describe what he had seen TH doing to S and that (in another slightly different account) N is recorded stated that TH “touched S down below and entered him.”
  2. Dr Haji records that S was “unfortunately present” when N pointed to his penis and said he tried to put this into S’s back passage. Within this context, the social work record of this appointment states that at this point, and several times thereafter, S interjected forcefully and said “that’s a lie, that didn’t happen“. Dr Haji’s note records that S shouted that “this had not happened“. Within this context Dr Haji is recorded as having contacted children’s services to express his initial concern that S (given the context I suspect the recording is mistaken and Dr Haji in fact said N) may have been asked to disclose the sexual assault allegation.
  3. I am entirely unclear why Dr Haji saw fit to take a history from the mother of the family’s issues in front of the children. Notwithstanding that it produced several forceful, and forensically significant, denials from S, I am equally unclear why Dr Haji considered it to be proper to permit N recite his allegation concerning the sexual abuse of S in S’s presence

 

 

There were allegations at school, and the procedures there too were not followed

 

  1. The most recent safeguarding training at the school, a copy of which I have also seen, makes clear under that the ‘Cause for Concern Form’ must include exact information, the name of the child and the date. The training makes clear that the teacher receiving the allegation must not ask questions and should not tell carers of concerns unless part of an agreed strategy.
  2. Both Ms Lot and Ms Duggan appear to have failed comprehensively to follow their own school’s safeguarding guidance and training and the accepted good practice with regard to the recording of allegations made by children. In the case of Ms Lot, in addition to not making any written record, she proceeded to question N and informed the mother (apparently in N’s presence) of what he had said. These are in my judgment serious omissions on the part of a teacher fulfilling a child protection role. As a result, the court is left with no accurate record of what N said and no clear idea of when he said it.

 

 

The Judge was satisfied that the father had not abused the children and that the mother had fabricated the allegations. There’s a lot of detail in the judgment about this, if you are sceptical, I’d point you towards reading that. (Being fair, just because the investigative process was flawed does not mean that the allegations were untrue, so you would need to read those passages to be sure).

 

  1. Standing back to survey the broad canvas of the evidence, I am satisfied for the reasons I have given that not only were the allegations made by the mother and the children false, but further that the allegations made by the children were generated by the mother placing unwarranted emotional pressure on the children by herself making false allegations regarding TH and making them known to the children, by inappropriately involving the children in adult discussions and by, on occasion, actively coaching the children to make allegations against TH.
  2. In the case of Re W (A Child) [2014] EWCA Civ 772 Ryder LJ (as he then was) observed as follows with respect to the significance of parents who make or cause to be made false allegations of physical and sexual abuse:
      1. “Given the prevalence of false allegations made by parents against each other in private law proceedings, conduct at this level by a parent should be understood to be serious child abuse that will usually necessitate intervention by a court.”
  3. Within this context, and having regard to the extensive matters set out above, I am satisfied that that N and S have been the subject of emotional abuse by their mother by reason of her conduct towards them as set out above. I am satisfied that as a result of the conduct of the mother detailed in this judgment both children have suffered significant emotional harm.

 

The Judge also outlined that the failure of all of the professionals to follow proper procedures had harmed the children and compounded the emotional harm that the mother was causing them.

 

  1. I am further satisfied on the evidence that the actions of certain professionals in this case breached well-established principles of good practice, actively contributed to the difficulties that I have set out above and materially prejudiced the welfare of both children:
    1. i) Almost all the professionals and agencies involved with the children proceeded on the unquestioning basis that the mother was telling the truth and failed to interrogate that assumption by carrying out basic enquiries. The most acute example of this was the assessment of Ms Salamant. Ms Krish properly concedes that the social worker never really challenged the mother’s account and that the most basic independent professional enquiries were not undertaken. Ms Salamant’s failure to challenge the mother’s account and accept it at face value meant that she permitted the mother to dictate completely the frame of reference for the actions of the local authority and other agencies and meant that mother succeeded in portraying herself and the children as victims of serious physical and sexual abuse when in fact they were not. Ms Salamant’s failure to make enquiries of the fathers, the children’s extended families, the children’s schools, doctors and previous local authorities was particularly egregious in circumstances where such enquiries would have revealed a fundamentally different picture to that being painted by the mother.

ii) A number of professionals failed in their duty to keep accurate records of what the mother and the children were saying. This failure was particularly acute (a) on 12 September 2014 where neither DC Bishop nor Ms Salamant kept accurate records of their meeting with the family, resulting in accounts of what the children said that were diametrically opposed, (b) at N’s school in September and October 2014 where Ms Duggan and Ms Lot failed to make any record at all of the allegations made by N in breach of the schools own safeguarding policy, Ms Lot attempting to pass this failure off as a feature of the case being open to social services and (c) on 29 October 2014 when DS Hackworthy took no notes at all of his pre-ABE interview with N and S. Outside the interviews of the children, not one professional recorded a contemporaneous or near contemporaneous account of what the children said to them.

iii) A number of professionals took it upon themselves to question the children with respect to the allegations outside the regulated confines of an ABE interview. There was a particular failure to follow the guidelines by (a) Dr Haji on 8 October 2014 who proceeded to elicit an account from N in front of S, (b) Ms Lot at N’s school between September and October 2015, who took it upon herself to ask multiple questions of N, (b) Ms Ille on 8 December 2014 who repeatedly questioned both children in a highly leading manner (having never met the children) and (d) Ms Khanom who likewise proceeded to question the children in a leading manner.

iv) There was an apparent failure of agencies to co-ordinate their interventions in respect of the children. The most extreme symptom of this was the number of professionals the children were spoken to by in respect of the allegations. As set out above, between 11 August 2014 and 29 July 2015, and when account is taken of the intervention by CAMHS, the children were questioned with respect to, or seen as a consequence of the allegations made in this case, often in the presence of each other, by no less than nineteen professionals on no less than twenty occasions for S and no less than forty-four occasions for N with five different police officers were involved with interviewing the boys.

v) For the reasons I have set out above both DC Bishop and DC Glendenning failed to apply, in the case of DC Bishop, Achieving Best Evidence, and in the case of DC Glendenning, the Guidance on the Joint Investigative Interviewing of Child Witnesses in Scotland. The results of this failure are plain from the passages of the interviews set out above. DC Glendenning conceded that the sole purpose of the interviews on 5 March 2014 was “to get evidence of sexual abuse“. DC Glendenning’s conduct of the interviews on 5 March 2014 with N and S represent in my judgment particularly serious examples of poor interviewing practice.

vi) Finally, ahead of any findings of fact being made or criminal conviction in respect of the allegations, CAMHS intervention in this case extended to therapeutic intervention for N by three psychiatric and psychological specialists in addition to group therapy over 29 sessions and for S over six Play Therapy sessions on the basis that both children had been abused in the manner alleged by the mother.

 

 

 

A child found to be lying in criminal court, should she give evidence in family Court?

Well, obviously, if the answer to this was “Yes, of course”, it wouldn’t be a very interesting case to write about. So the fact that the Judge in this case said no to a 16 year old giving evidence, twice, is worth reading about. It’s quite long, I’m afraid, but there’s some good stuff in here.

It involves five judgments, all of which were published today. Yes, five.

When this popped up on the feeds, it was nearly a Seven Brides for Seven Brothers moment, but we did eventually stop at five.

Kent CC v D and Others  (1) (2) (3) (4) (5) 2015

The Court were dealing with care proceedings involving three families, which they linked together. When you read the list of counsel that were in the case, it must have been an absolute nightmare to coordinate hearings so that they could all do them, and how even the advocates meetings worked is beyond me.

They are always horrendous when you’ve only got four advocates to get together  (one person always forgets whether it is 5 or half 5, or has a phone line that drops out, or has a hacking cough). Doing it with EIGHTEEN counsel….  Just doing the  introductions must have felt like the “Goodnight ma, goodnight pa, goodnightJim Bob” schtick from the Waltons.

 

 

 

[It was practically mandatory at any camping trip or sleepover that someone had to start doing this when it was finally time to go to sleep. There would be a few moments of unsupressable giggles, then someone would take it far too far and you’d have to get out of your sleeping bag and give said person a dead arm to make them shut up. Apologies if I have rekindled that tradition]

 

By the time all 18 counsel had introduced themselves on day one of the final hearing, it was probably time to go to lunch.

 

 

Anyway, most of the broader interest in this case comes from one child, named Z. Z was at the time of the original hearings 16 years old, and was making allegations that various adults had sexually abused her and involved her in sexual exploitation, trafficking her and selling her for sex. Those allegations had an impact on all three cases (there were other allegations but these I think were the major ones).

 

Some of the parents in the linked care proceedings wanted Z to be called to give evidence.

 

Z was giving evidence in the criminal proceedings, so there was no issue about her CAPACITY to give evidence.  However, she did not WANT to give evidence in the care proceedings.

 

  1. Z was first informed about these family proceedings in early October by one of the police officers, who she is said to have a good relationship with. The officer explained to Z about these proceedings and the possibility of her giving oral evidence using an explanation that had been agreed by the parties in this case. Her response was to say ‘No way I’m not. That means I’d have to go two times and remembering about them makes me sick’. She asked whether the family case concerned her siblings, when she was told it didn’t she repeated her refusal to give evidence in more explicit terms. The police officer reports that she discussed with Z the special measures that could be put in place for her to give evidence, but she stated she could not put her mind to it. Z telephoned her mother to ask for her advice and was heard to say that she felt too much was being asked of her.
  2. Shortly afterwards Z was assessed by a psychologist. One of the matters the psychologist was asked to assess was whether Z was able to give evidence in the family case and then again in the criminal case. The report describes Z as ‘an extremely suspicious person who attempts to gain control of situations’ and described her engagement with the assessment as ‘negative and variable’. It is clear from the assessment she is deeply distrustful of social services and sees them as the reason why she is separated from her parents against her wishes.
  3. The psychologist was not able to complete the psychological tests she wished to undertake, due to Z’s refusal to answer the questions. From her assessment she stated ‘Psychologically Z presents as a person who has a limited ability to concentrate and attend within situations, especially in situations that she does not find rewarding or does not see the necessity of, and of course, situations that she wishes to avoid psychologically because of distress that the memories potentially cause to her. Z appears to be psychologically a person who does not necessarily comply easily with authority and there is a possibility that she could, in my opinion, present as angry and disinterested in a trial situation if she is faced with the recollection of trauma…..I consider that it is highly likely that when Z is distressed she is more likely to respond in an antagonistic way and it is likely that she would in such a situation withdraw or become aggressive or antagonistic, rather than cope with underlying distress and psychological difficulties. This psychological aspect of her functioning, in my opinion, would affect her ability to give evidence and deal with a Court situation. Furthermore, she does have a history of emotional and behavioural difficulties described within her records and if Z is under a situation of acute pressure or distress her behaviour may become inappropriate and disruptive. Such a situation would clearly be detrimental to Z psychological functioning and detrimental in terms of her ability to deal with the Court case.’
  4. In answer to the question about whether Z is able to give evidence initially in the family court and then in the criminal court she states ‘This again is difficult to answer given the information that is available to me both from the background papers and from this assessment. However, I am of the opinion tentatively that Z, with support, is strong enough to give evidence in both courts, but close monitoring of her psychological stability will be needed. I am of this opinion because Z presents as extremely determined to see justice done in relation to her alleged abusers. In my opinion she needs to be enabled to keep her focus on the issue of her receiving a degree of justice in order to facilitate her continued co-operation.’ It is of note that she did not discuss giving evidence in both cases directly with Z during the assessment.

 

 

  1. The social worker’s intention had been to meet with Z for two periods of 3 hours to assess her, however due to Z’s volatile behaviour she only managed to spend 1 hour in her company in total over the two sessions. She said ‘Although Z is sixteen years old, and can present as being a mature young lady, this behaviour is short lived and she will quickly display behaviour which is characteristic of a much younger child if she deems she is not getting her own way’. She said the second visit was more ‘successful’ in that she ‘had a full conversation about her role and what was being asked of her, this too quickly deteriorated and she refused to speak to me becoming rude and aggressive. I am not confident she fully understands the court process and what it means for her, nor am I confident that she will be able to withstand the rigours of cross examination.’
  2. In her conclusions she states ‘Z is currently experiencing a high level of stress. She admits to being very angry and has stated, in no uncertain terms, that she will not give evidence in the family hearing….Z is vehemently opposed to giving evidence in the family case. If Z gives evidence in the family law hearing, prior to the criminal case, it is the view of the local authority with responsibility for Z, that this puts her in grave danger and at risk of significant harm, it is felt that the risk to Z and potentially others is extremely significant and could lead to her being seriously harmed or worse.’ She refers to the concerns about risk of Z absconding, particularly if there is some distance to travel to enable her to give evidence. She continues ‘Z is an emotionally traumatised young girl. Her level of volatility and challenging behaviour evidences this. She has previously received treatment for psychiatric difficulties and she is especially vulnerable in this area….In my professional opinion Z presents as one of the most severely abused children I have met within the area of Child Sexual Exploitation. The majority of the trauma which she has experienced is currently unknown to professionals and the potential for re-traumatising her by placing her as a witness is significantly high and could have lifelong emotional consequences for her…I am of the view that Z should not give evidence in the family hearing and that to call, her as a witness would place emotional stress upon her which would be significantly detrimental to her mental health and could potentially destabilise the current placement.’

 

The Judge, Theis J, in the first judgment in November 2014

http://www.bailii.org/ew/cases/EWFC/HCJ/2014/59.html

 

decided that the child, Z, would not be called to give evidence.

 

  1. In considering how I should exercise my discretion it is important that I remind myself that it is being considered against the backdrop of the court’s objective to achieve a fair trial of the issues in dispute between the parties as to the threshold criteria (see Lady Hale Re W (Children) UKSC 12 paragraph 23:
    1. “The object of the proceedings is to achieve a fair trial in the determination of the rights of all of the people involved. Children are harmed if they are taken away from their families for no good reason. Children are harmed if they are left in abusive families. This means that the court must admit all the evidence which bears upon the relevant questions; whether the threshold criteria justifying state intervention have been proved; if they have what action if any will be in the best interests of the child? The court cannot ignore relevant evidence just because other evidence might have been better. It will have to do the best it can on what it has.”
  1. Having undertaken the balancing exercise that I am required to do in accordance with the guidance laid down in Re W, I have reached the conclusion that Z should not be required to give oral evidence in these proceedings, as I consider it more likely than not the harm that such a course is likely to cause her outweighs the advantages of her giving oral evidence.
  2. I have reached that conclusion for the following reasons:
  1. (1) There is considerable evidence about Z’s vulnerability; emotionally, physically and psychologically. She has been receipt of psychiatric care in the past and has displayed severe emotional vulnerability about her current situation. She is considered to be at risk of absconding and that risk is said to increase if she was required to leave where she currently resides to join a link for video evidence against her wishes. Whilst it is likely the risk of absconding could be managed, the adverse risk to her emotional and psychological health is more likely than not to be considerable by requiring her on two occasions to recall the details of what she has said took place.

(2) I have evidence from a number of sources about her wishes about giving evidence in the family proceedings. Z has made it clear she does not want to give evidence in these proceedings, and it is more likely than not that she would refuse to co-operate with directions to do so by the court. I have carefully considered the context in which she has expressed her wishes; namely to the officer in the case and the social worker. She is reported to have a trusting relationship with the officer, but in their discussions was unable to countenance the prospect of giving oral evidence twice and an important feature from her perspective is that these proceedings did not concern her siblings. As regards the views she expressed to the social worker I have borne in mind her negative views about social services, but the social worker who went to see her was not her allocated social worker, she is an experienced social worker and she saw her on two occasions so was able to assess her views and reactions over a period of time. Her written and oral evidence was clear; Z is unwilling to give evidence in these proceedings. I have carefully considered whether when faced with a direction by this court to give evidence she would, in fact, actually comply. Whilst that is a possibility it is more likely that she would not and, in fact, such a direction is likely to cause her more distress and increase her level of anxiety.

(3) The ‘tentative’ view expressed by the psychologist of Z’s ability to give evidence in the family and the criminal case was done without the information this court has as to Z’s wishes about giving evidence in the family proceedings. In addition this was not an issue that was not discussed directly with Z by the psychologist. Therefore, whilst I take it into account I do not give it the same weight as the direct evidence I have about her wishes not to give evidence in these proceedings and her emotional vulnerability if required to do so.

(4) It goes without saying that providing her welfare needs could be properly safeguarded the Convention rights of all the parties in these family proceedings would be protected if Z could give oral evidence. In principle special measures could be put in place to ensure her evidence is given in a way to protect her welfare. However, that is only one aspect of the discretion the court has to exercise, albeit it is an important one.

(5) I have carefully considered whether any more steps can, or should, be taken to explain to Z the purpose of these proceedings and the need for her to give oral evidence. The LA in their oral submissions suggested that I could undertake that task. Whilst superficially attractive I cannot ignore the points made by the intermediary, who has probably had the most consistent involvement with Z. In her reports she is very clear of the need for there to be consistent support for Z. In the light of the experience of others (in particular the psychologist who could not be seen to be connected to social services) it seems very unlikely that Z will easily be able to comprehend the alternative view of something she is so vehemently against in just one meeting. It is only likely to be considered by her, if at all, if explained by someone with whom she has an established trusting relationship with over a period of time. That is likely to take some time and may not succeed. As the intermediary observed there is a real risk of overloading Z with demands if she is required to give evidence in these proceedings in the context of the situation she is in, namely in the build up to preparing to give evidence in the criminal proceedings. In my judgment the same applies, in the context of her situation now, to any further assessment of her understanding of the purpose of these family proceedings with a view to seeking her agreement to give evidence in these proceedings too.

(6) I have also factored into my considerations the fact that this is not a single issue case. There is a complex background, which even with sensitive oversight by the court would need to be explored in oral evidence.

(7) An important consideration is that it is accepted there is other material the court can consider, both to support and undermine what Z has said. The court will be able to observe the DVDs of Z and all parties will have the opportunity to challenge or support the accounts give by her on the other available evidence. The court will be able to direct itself in advance of making the appropriate factual conclusions. It is acknowledged in the skeleton argument on behalf of the mother in the D case that ‘this may be an increasingly attractive option in the light of the recent evidence filed by XLA.’

 

 

[I’ll pause for a moment – the Judge was clearly very mindful here that Z would not cooperate with giving evidence, and as we now know, whilst a Court CAN compel a child to give evidence and to issue a witness summons, they can’t actually do anything if the child doesn’t come to Court, won’t get in the box or won’t answer questions. They can’t lock the child up.

Theoretically, the penalties for failing to attend in answer to a witness summons are committal to custody and/or a fine. However, there can be no detention for contempt of a person under the age of 18, see sections 89 and 108 of the Powers of Criminal Courts (Sentencing) Act 2000.

https://suesspiciousminds.com/2016/02/11/can-you-compel-a-child-to-give-evidence/     ]

 

Judgment number 2 is the fact finding hearing, where some findings were made – the Judge gave Z’s evidence less weight than if she had been able to be cross-examined and as a result not all of the allegations Z made were found to be proven.

 

That was compounded because there were flaws in the ABE video interviewing process. (Sounds depressingly familiar)

 

  1. As has been made clear in a number of cases the ABE guidelines are important and should be followed. I have been referred to the relevant extracts and have those parts very much in mind. It is quite apparent the Guidelines have not been followed in this case in a number of important respects, in particular:
    1. (1) Pre interview meetings being properly recorded (ABE Guidelines paragraph 2.6)

(2) Avoiding leading questions (ABE Guidelines paragraph 3.61)

(3) The importance of remaining neutral (ABE Guidelines paragraph 2.229)

(4) Repeated interviews (ABE Guidelines paragraph 3.130)

  1. The breach of these guidelines are serious, they have the effect of undermining the reliability of the account being given which I must carefully balance in my assessment of the evidence. This has made my task in this already complex case particularly difficult in the context where I have not heard Z give oral evidence.

 

http://www.bailii.org/ew/cases/EWFC/HCJ/2015/93.html

 

Judgment number 3 is an application for a re-hearing.  In large part, that was as a result of the criminal proceedings mentioned earlier. Z did give evidence, and her evidence was not good.

 

Following the conclusion of the fact finding hearing the parallel criminal proceedings started on 12 January. Two of the mothers in the care proceedings, AK and JE, were defendants in those proceedings together with 5 male defendants facing charges of sexual exploitation concerning Z. Z gave oral evidence in those proceedings over a period of 12 days. In addition prior to giving oral evidence she was able to view her ABE interviews and read her section 9 statements. The memory refreshing procedure was video recorded. The criminal proceedings concluded on 6 March 2015 when HHJ O’Mahony acceded to the application at the end of the prosecution case that there was insufficient evidence for the case to continue on the basis of the inherent unreliability of Z’s evidence.

 

Theis J considered that application for a re-hearing.

 

  1. All parties agree the framework governing applications for re-hearing is set out by the President in ZZ and Others [2014] EWFC 9. At paragraph 33 he endorsed the words of Hale J in Re B [1997] 1 FLE 286 ‘Above all, the court is going to want to consider whether there is any reason to think that a rehearing of the issue will result in any different finding from that in the earlier trial. By this I mean something more than the mere fact that different judges might on occasion reach different conclusions on the same evidence….the court will want to know….whether there is any new evidence or information casting doubt on the accuracy of the original finding.’ There must be what the President called ‘solid grounds for challenge’.
  2. In considering such applications there are three stages: (1) Whether the court will permit any reconsideration or review or challenge to the earlier finding. (2) If it does, to consider the extent of the investigations and evidence concerning the review. (3) The review hearing where the court decides the extent to which the earlier finding stands by applying the relevant test to the circumstances then found to exist.
  3. In summary, it is submitted that new evidence, not previously before the family court, requires this court to re-consider the findings founded in whole or part on the evidence of Z in the schedule dated 6 January. There is no serious opposition to this course by the Local Authority in the case of AK, JE, JC or LF; or by the respective Children’s Guardians or DF (who is now separately represented).

 

That was the legal background to the decision. The factual background was set out in this way.

 

New Material

  1. The new material relied upon to re-open the findings can be summarised as follows:
  1. (1) Z’s oral evidence in the criminal trial (together with the recorded memory refreshing sessions beforehand when she viewed the ABE interviews) which resulted in the conclusion by the trial judge not to allow the case to go before the jury on the basis of the second ground in Galbraith, due to what he considered were the ‘extreme flaws in the reliability and credibility of Z’s evidence’. Z gave oral evidence over 12 days with careful consideration having been given to appropriate safeguards and the use of an intermediary. HHJ O’Mahony’s conclusion was founded on a number of grounds, which included

(i) 8 men being wrongly put in the frame in allegations of rape and trafficking, 2 of whom were defendants in the criminal proceedings. HHJ O’Mahony stated when giving his ruling ‘it is clear from the cross examination based on sound and undisputed disclosure that by mistake, confusion or sheer lies, Z has implicated eight men of serious crime and then in evidence withdrawn the allegations or robustly rejected them as being wholly wrong’. The detailed analysis in the ruling in the criminal proceedings includes some evidence available at the family hearing, although the further inconsistencies, retractions and reasons for retractions in Z’s oral evidence in the criminal proceedings is clearly new.

(ii) The lack of corroborative evidence to support the two weeks Z had said she spent in hospital. That position was largely known at the family hearing although in the memory refreshing stage Z stated that the hospital stay was not true.

(iii) The different accounts Z had given of her return from Town C to Town A, 3 of which were known to the family court, but a further account was given in oral evidence.

(iv) The differing accounts of times she was taken to Town C, she gave a different account in her ABE interview (known about at the time of the family hearing) and in her oral evidence (both in her examination in chief (30 – 40 times) and her cross examination (‘I made a mistake’)). The accounts in the oral evidence are new.

(v) The events when Z was in town A. The documents disclosed Z had been seen by the police, told them her parents were selling her for sex and then Z denied to the police having said that (this was all known in the family proceedings). In her oral evidence she rejected any of the events disclosed in the town A documents had occurred and that all was well throughout her time in town A. In a lunch break during cross examination she was seen on the phone to her mother writing notes which she tried to tear up when the police tried to take them from her. She refused to answer any more questions about town A. When her mother gave oral evidence about the phone call she said Z had told her on the phone that she, Z, had lied about it in evidence before the jury. The account in Z’s oral evidence, and her mother’s evidence about the phone call are new.

(vi) Inconsistent accounts by Z as to whether she had taken drugs voluntarily or not, when the prosecution case was she was forced to take drugs. In her 13 February interview (which was known to the family court) she said she was addicted to drugs. In her oral evidence she said she did not know or remember if she brought drugs or was addicted to drugs. There is reference to a facebook conversation concerning drugs and a video of Z expertly rolling a joint. The oral evidence, facebook conversation and video are new.

(vii) Inconsistent accounts concerning sex with JDI, which were described by HHJ O’Mahony as ‘remarkable’; alleging that in the 6 March interview, denying it in the 24 October interview (both of which were known in the family proceedings) and in her examination in chief and cross examination stating that he had raped her. The content of her oral evidence is new.

(viii) False complaint by Z against her father, she admitted this in her oral evidence. This was not before the family court although her mother gave evidence in the family proceedings that she thought Z had done this as the father had stopped her going out to a nightclub.

(2) Further details emerged in the criminal proceedings about the evidence gathering of DC Verier that puts into question the neutrality of the investigation, which I had already been critical of. It emerged during the criminal trial that DC Verier had been instructed to pre-prepare a statement in section 9 form and turn up at the address with it and present it to Z. This was not disclosed in her evidence during the hearing before me, although it was raised as an issue in cross examination.

(3) The evidence available in the criminal proceedings (notably the evidence of DC Brightman in the voir dire) regarding the circumstances surrounding the ABE interview of CC such that HHJ O’Mahony excluded it under section 78 PACE as having been obtained in circumstances which he considered as oppressive bearing in mind the vulnerability of the witness. The full detail about the circumstances of this ABE interview appears to be new.

  1. The courts overriding objective is to deal with cases justly having regard to the welfare issues involved. The factual and welfare issues in this case could not be more serious or complex. The threshold findings relied upon by the Local Authority are the only basis upon which they are justified, by law, in seeking to interfere with the Article 8 rights of each of the adults and children.
  2. Although the Local Authority submits that the family court was aware of and alive to the significant emotional, psychological and intellectual difficulties of Z and the inconsistencies in her evidence at the time of the family hearing it acknowledges the procedural bind the court is in.

 

You will see that the criminal trial condemnation of the ABE interview went further than the Family Court, indeed excluding the ABE as evidence at all.  [The “voir dire” reference is to a hearing or part of a hearing where argument took place in the absence of a jury as to whether certain evidence could be seen be a jury or had to be excluded. If the Prosecution loses the voir dire hearing to decide whether the jury can see the ABE interview, that would be a massive – if not fatal – blow to the Prosecution case.  ]

 

 

  1. Decision
  1. I have reached the conclusion that in the somewhat unique circumstances of this case that justice requires the applications for a rehearing should be permitted on behalf of AK, JE, JC and LF in relation to the findings identified above. In reaching this decision I have taken into account the following considerations:
  1. (i) The need to balance the public interest in finality in proceedings and minimising delay to a child against the importance of ensuring findings of fact have been correctly determined to ensure matters are justly determined.

(ii) Whilst any further delay is inevitably inimical to the welfare of each of these children in different ways, due to their varying ages and needs, the importance of the court’s findings in each of the cases as to any welfare decisions is clear, and weigh the balance in favour of ensuring the findings are correctly determined.

(iii) It is clearly important for each of these children to know the truth.

(iv) Any findings that involve Z will have an impact on the risk assessments that are undertaken and are likely in each of these cases play a key part in the welfare decisions made by the court, which include whether the children are rehabilitated and/or decisions as to contact.

(v) The credibility of Z was at the core of the Local Authority’s case. It is an issue that has already received careful consideration by this court but the new information from the evidence in the criminal proceedings provides a ‘solid ground’ upon which the findings I made should be reconsidered. It will be necessary for this court to consider again the reliability of Z’s evidence in the light of the new material that is now available.

(vi) Although the outcome of a further hearing cannot be predicted it is possible that the court may reach a different conclusion; a review of the new material may lead to different findings, it may not. The new material raises serious issues for the court to consider.

(vii) The findings that are sought to be re-considered are inextricably linked and should be considered together.

So there would be a re-hearing (there were some findings that would be untouched by the issues over Z’s credibility, and those matters would not be re-heard)

 

Judgment 4 (nearly there) was the decision as to whether Z should be called as a witness at the re-hearing of the fact finding in the care proceedings.

http://www.bailii.org/ew/cases/EWFC/HCJ/2015/95.html

 

Understandably, the parents, given that litany of complaints about Z’s credibility arising from the criminal trial, were keen for Z to be compelled to give evidence and have the opportunity to demonstrate that her allegations were false.

Complicating things still further, Z had gone to live in another unconnected Local Authority in foster care, and had told them that she wanted to go back to live in Slovakia with her maternal family, which she duly did. So by the time Theis J was dealing with this, Z was not in the UK and her precise whereabouts were not known.

 

Submissions

  1. An order is sought on behalf of AK and JE requiring Z to give oral evidence, although the difficulties that are presented to the court are acknowledged. They seek an order, in principle, that Z should be required to give oral evidence. They recognise there may be difficulties in effectively enforcing any order as Z is out of the jurisdiction. They submit the court should make that decision requiring her to give oral evidence for the following reasons:
  2. (1) Z should not be permitted to pick and chose which proceedings she participates in. This is particularly so when considering the observations of HHJ O’Mahony regarding the false allegations she has made before and during the criminal proceedings.

(2) By not requiring Z to give evidence this court is depriving itself of the advantage the judge had in the criminal proceedings of being able to observe her oral evidence over a number of days.

(3) There are relevant issues that they seek to explore with Z that were not fully dealt with in the criminal proceedings.

(4) It is acknowledged Z would suffer emotional harm if she was required to give evidence, although the information available to the court is out of date, due to Z’s failure to co-operate with any Re W assessment. It is submitted that Z was able to give evidence over a number of days within the criminal proceedings, and there is no reason why she should not be able to do so if carefully and sensitively handled within these proceedings. It is submitted there is no evidence of grave harm suffered during the criminal process.

  1. The LA does not support the Re W application. They submit
  1. (1) There is no evidence that would indicate a change in Z’s vulnerability and ability to engage with the court to give evidence.

(2) The evidence the court has from Z LA sets out Z’s extreme stress during the criminal proceedings, exacerbated by her frequent attendance and the conclusion of the trial; her extreme stress regarding her previous experiences and her family leaving the country without her; her anger at being placed in secure accommodation and her reluctance to provide any evidence in relation to any more proceedings; her intention to kill herself if she was not allowed to join her family in Slovakia.

(3) In the updated statement dated 8.7.15 XLA state that since their previous statement on 22.5.15 Z has continued to experience high levels of stress in relation to her experiences of having to provide evidence in the previous proceedings and her family returning to Slovakia.

(4) The most recent statement from XLA details Z’s views were sought on three separate occasions in respect of giving evidence in the family proceedings. On each occasion she has been clear she did not want to participate in the proceedings or give evidence.

(5) Although Z has not engaged in an up to date assessment XLA report that in any event the psychological aspect of Z’s functioning would affect her ability to give evidence and deal with a court situation.

(6) The court has significant additional material to consider in its evaluation of Z’s accounts; video recording and notes from the memory refreshing exercise and transcripts of all of her evidence in the criminal proceedings.

 

 

The Judge decided not to make orders compelling Z’s attendance as a witness

 

Discussion and Decision

  1. The inherent difficulties in dealing with family proceedings that involve vulnerable witnesses have, once again, come into sharp focus in this case. At each stage this court has had to conduct the difficult balancing exercise of seeking to ensure the court has the best evidence available, so that any decision reached is on a secure foundation, against the welfare considerations of the individual witness.
  2. In November last year, faced with a similar application, I determined that the welfare considerations of the witness outweighed the other considerations, and Z should not be required to give oral evidence.
  3. This court is reconsidering this issue in the light of the fact that Z was able to give oral evidence over a number of days in the criminal proceedings, the adverse conclusions reached regarding her credibility by HHJ O’Mahony and that this court has listed a re-hearing of the findings made previously, that were in large part founded on Z’s evidence.
  4. Having now considered this issue again, in the light of the recent events and evidence, I have reached the conclusion on the information available to the court that Z should not be required to give oral evidence, as on analysis of that information such a course would be contrary to her welfare and this outweighs the benefits of her giving oral evidence. I have reached that decision for the following reasons:
  1. (1) If Z were able to give oral evidence undoubtedly this court would have the best opportunity of assessing her evidence. It has rightly been referred to as the ‘gold standard’ and it fully protects the Article 6 and 8 rights of the parties, which include the adults and the children. Reliance is placed on what took place within the criminal proceedings where the reliability of Z’s evidence was tested through the forensic process.

(2) However this court cannot ignore the evidence it has concerning Z’s welfare. In November I concluded that a combination of her express wishes and the evidence the court had about her psychological vulnerability resulted in the court determining she should not be required to give oral evidence. Since Z concluded her oral evidence in the criminal proceedings her psychological position has deteriorated to the extent that XLA sought and obtained orders to place her in secure accommodation to protect her. In the two statements the court has from Z LA it is clear Z was suffering extreme stress through a combination of events. Her expressed wishes have not changed; on each occasion she was asked about giving evidence in these proceedings it was clear she did not want to participate in them.

(3) Whilst this court does not have detailed updated information regarding her psychological state it is clear from what is available that her current functioning would inevitably affect her ability to give evidence and deal with the court situation. Forcing her to give oral evidence, even if that was possible, would undoubtedly be contrary to her welfare.

(4) In conducting the re-hearing the court does have significant additional material to re-evaluate Z’s accounts by way of the video recorded memory refreshing exercise, together with the notes taken and full transcripts of her oral evidence within the criminal proceedings.

  1. I have reached this conclusion on the information available to the court now.
  2. Some criticism has been made of the fact that XLA took steps to facilitate Z leaving the jurisdiction without notifying this court or the LA of the steps they were taking. The effect of the Z leaving the jurisdiction has curtailed this court’s ability to take any further steps to assess Z’s ability to give oral evidence. XLA state that they were not formally aware of Z’s position until the morning of 9 June, the next hearing was two days later. It was a fast moving situation which they state did not give them sufficient opportunity to inform this court or the LA of the developing position. Whilst it is regrettable this court and the LA were not kept updated about the developing position regarding Z’s status here, the reality is there would have been limited, if any, steps this court could have taken to prevent Z leaving the jurisdiction.
  3. I have directed the LA to continue its efforts through the Central Authority to get updated information about Z’s whereabouts and her current circumstances.

 

 

Finally then, part 5, was the judgment from the re-hearing, which took place without Z’s evidence.

 

http://www.bailii.org/ew/cases/EWFC/HCJ/2015/96.html

 

I have to say, as a prelude to this, a key witness who had admitted to having made false allegations and whose evidence in the criminal Court led a Judge to conclude that the prosecution could not safely continue, who doesn’t want to give evidence in the family Court and who leaves the country,  that’s evidence that it is hard to give any weight at all to. One can only speculate as to what view the Court would take of a parent’s evidence if those features applied.

There was fresh criticism of the police investigation

 

Criticisms regarding the police investigation

  1. In the January judgment I made a number of criticisms of the police investigation (see in particular paras 432 – 435). In his ruling in March HHJ O’Mahony agreed with those concerns and expressed his own concerns about the investigation in trenchant terms. I hope that any review of the police investigation will take on board what has been said in both sets of proceedings about the investigation. Like HHJ O’Mahony I appreciate that this investigation was a difficult and challenging process for all those involved dealing with a young, vulnerable person as Z.
  2. This hearing has done little to improve the position regarding the investigation. Whilst this court recognises the enormous sensitivities involved in this type of investigation, it is clear that some of the decision decisions taken have seriously undermined the evidence. For example, the decision made not to challenge Z in relation to possible inconsistencies, the methods used to put her at ease and gain her trust seriously risked being seen by her as encouragement, with the consequence of undermining the quality of her evidence. When looked at in the context of her low IQ and the information regarding her tendency to confabulate (which information was only available after all the interviews and discussions with her had concluded) made the task for this court challenging when evaluating the reliability of the evidence to support any of the findings sought in January. The events since January, has undoubtedly made that task significantly more challenging.

 

and later in the judgment here

 

Further criticisms of the police investigation

  1. In addition to the criticism this court made in the January judgment and HHJ O’Mahony in his 6 March ruling, further matters have emerged to the forefront during this hearing. They can be summarised as follows:
  1. (1) The failure to follow up any further enquiries relating to SA. He is the neighbour who lived next door to AK against whom cross allegations had been made. Z alleged AK sold her own daughter AD to him, which AK and AD deny. AK alleged that it was Z who used to visit him, have sex with him. In his oral evidence in this hearing DI Cooper said this man was interviewed, denied the allegations and it was not taken any further. Very recent disclosure from the CPS confirmed this man was seen by the police in August 2014. He denied having sex with any of the occupants of AKs address and described an isolated occasion when he smoked cannabis and was offered sex for money by a woman who visits AK who he described as being ‘in her late twenties, slim build, blond hair and who always wears sexy clothes’.

(2) The very recent disclosure of the s9 statements of LS. His existence was not known during the previous family hearing and was only noted as being referred to in the written submissions in the criminal proceedings. He is the former boyfriend of AD who described Z being a regular visitor to AK’s home, but makes no reference to Z being there against her will. This disclosure was made on the last day of this hearing; no party sought this witness to attend to give oral evidence.

(3) The failure to interview AD who would have been able to shed light on what was going on. This was raised in the previous hearing. Z had alleged that AK prostituted AD and that she and AD had spent the night in bed with a Pakistani man. It is submitted that this gap in the information available has to be seen in the context of the frequent meetings with AD’s much younger sister, KD. This, it is submitted, supports the lack of balance in the investigation.

(4) The failure to challenge Z (for example, in relation to the hospital stay), the deliberate departures from the best practice outlined in the ABE guidelines, the failure to properly record key events (in the drive round and the meetings with potential witnesses where there were incomplete records regarding the questions asked). Most of this was known at the previous hearing but need to re-evaluated in the context where this court has not had the advantage of Z giving oral evidence.

(5) KV’s evidence in the criminal proceedings about the pre-prepared s 9 statement she took to the meeting with Z on 7 May. This was not disclosed in the previous hearing before me, although it raised as an issue in cross examination by Mr Larizadeh. In her evidence in this hearing KV said she ‘forgot’ that was what happened when she previously gave evidence before me. She said she had more time to prepare for her evidence in the criminal proceedings. Although I accept at face value what KV says I do find it very surprising that such an important detail was forgotten when she gave evidence in the previous hearing. It was, as HHJ O’Mahony described, an usual step to take in such an investigation, especially with such a vulnerable witness. It was based on information given two months previously and KV accepted the way it was presented to Z risked limiting her ability to say what she disagreed with.

(6) There was much debate during this hearing about when the police were made aware of the information from Slovakia, which included information about Z’s tendency to confabulate. The evidence very recently disclosed now shows DI Cooper received this on 28 October 2014, considered it and circulated a note about it on 30 October 2014 attached to an email that was copied to KV. KV said in evidence at the previous hearing (which is now known to be after receipt of the email from DI Cooper) that she was seeing the information from the Slovakian psychiatrist for the first time. That was clearly not the complete position as in her very recent s 9 statement she states ‘I can confirm that looking back through my email records, I received an email on 30/10/2014 titled ‘CONCERNS REGARDING 3rd PARTY MATERIAL FROM SLOVAKIA.DOCZ’. This email contained a report ‘outlining’ the points made about Z by a Psychiatrist in Slovakia including as per DI COOPER’s statement on 24/09/15

• She has tendencies to distort reality

• has tendency to confabulation

Looking at DI COOPER’s statement and the email he sent to me on the 30/10/!4, I have only now remembered receiving this. I can state that I did read DI COOPER’s chronology on Z’s 3rd party records but did not read the translated Psychologist report itself as believed his chronology to contain all necessary points of concern.

(7) KJ was closely questioned about how the investigation proceeded. Although it was clear all decisions regarding the investigation were being led by the police, it appears that there was no effective contribution by the LA to the strategic decisions being taken (eg the conduct of ABE interviews, non compliance with ABE guidelines, meetings not fully recorded in writing or by video etc). KJ was questioned about leading questions in some of the ABE interviews and it became clear that she, like KV, believed what Z was saying and as a result risked remaining neutral in gathering the relevant information. As with the police, the LA in this type of situation should have early access to specialist legal advice to enable them to fulfil their statutory obligations, particularly in circumstances where there are likely to be care proceedings based on the evidence gathered during the police investigation.

 

 

There’s also an interesting nugget about “police intelligence”   (insert your own joke here, if you like)

 

Police Intelligence reports

  1. Much criticism has been made of these reports. They are, as Mr Storey puts it, as the bottom of the evidential food chain to such an extent that they are no more than ‘tittle tattle’ and should not be used to prop up an already weak case. He makes the obvious points that the reporter is not known, no attempt has been made by the LA to identify them, produce a statement from them and call them to give evidence. As a result, he submits, they barely amount to evidence.
  2. Mr Feehan recognises they are hearsay accounts and the court should treat them with caution. However, he relies on the accuracy of many of the details given in them to lend support to other evidence, particularly that of Z, who was very unlikely to have known about the content of them.

 

The Judge dealt with Z’s evidence and the issues with it

 

Z’s evidence

  1. The evidence from Z has been put under renewed scrutiny in this hearing.
  2. It is right that the main reason why the re-hearing was sought was the collapse of the criminal trial and the reasons that underpinned that. Obviously this court is not bound by any conclusions reached by HHJ O’Mahony in his ruling, but the evidential position that brought about that conclusion is clearly very relevant.
  3. The first matter is that prior to her first ABE interview on 6 March 2014 Z had made serious allegations against a number of individuals, including two people who were defendants in the criminal proceedings. In the meetings Z had with DC Verier (KV) and Kayleigh Jones (KJ) on 13 and 20 February Z implicated a number of people as causing sexual harm to her. In the first meeting JDI, MC, and A. In the second S, T, RK and RF. In her the memory refreshing exercise and her oral evidence in the criminal proceedings she withdrew her allegations against a number of men including A, S, RF, T and U.
  4. Two of these men, RK and A, she had described in her oral evidence as having been very kind to her; RK was a former boyfriend. She went further in her oral evidence in that she denied she had ever said to KV in her meeting on 13 February anything unpleasant about A.
  5. It is submitted that the importance of this is that it is now known that prior to the first ABE interview Z had already told untruths about a number of men regarding serious sexual offences. As Mr Storey submits, this was also at a time when those who were speaking to Z were ignorant of the information that subsequently became available about Z’s low IQ and suggestibility.

 

 

That is of course, a pretty major issue – if it was already known before the first ABE that Z had made up serious sexual allegations about a number of men that proved to be untrue, then surely the police investigation into the next batch of investigations had to bear that in mind. It didn’t automatically mean that she was lying this time, but you surely don’t go into the investigation assuming that what is emerging is automatically true. You have to bring some sort of sceptical eye to bear on what is being said.  The police in this case would be pointing fingers at the villagers in the Boy Who Cried Wolf story, saying, “Well, I simply can’t understand why they didn’t evacuate the village the fifth time that he Cried Wolf, it was OBVIOUS that there was a wolf on the way”

 

[*Of course there might be a wolf, and you have to be alive to that possibility, but there’s another possibility to take into account, surely?]

 

 

  1. It is submitted that this behaviour by Z supports the suggestion that Z has the capacity to make up allegations against people for little or no reason. Two of the people she had made up allegations about, RK and A, she subsequently described as having been very kind to her. In other instances, when she has given a reason it has been a slender one (such as the allegation of assault against her father when she stated she wanted him to be in prison, to then subsequently state she had made the allegation as he had refused to allow her to attend a disco). This behaviour, it is submitted, supports the evidence given by Z’s mother, ZM, in the previous family proceedings that Z was someone who would ‘make up stories, someone who made up allegations of sexual abuse against people’. ZM said something similar in her oral evidence in the criminal proceedings.
  2. Feeding into this is the further inconsistent oral evidence given by Z about a number of other matters. For example, the times she was allegedly taken to Town C. In her ABE interview it was twice, in examination in chief in the criminal court it was 30 – 40 times and in cross examination she said it was a mistake. The rest are set out in HHJ O’Mahony’s ruling.
  3. Another feature of Z’s evidence is the additional information regarding what occurred in City A. It is suggested to have been missed by all the parties in the family proceedings that buried within the papers was a separate reference by Z to her family selling her for sex. This arises from a question put in the criminal proceedings by Mr Saxby Q.C. (leading counsel for RB). At the time of the first family hearing it was thought this had only been said by her once (to PC Swift, which she subsequently denied). It now appears that the records show this was possibly done on two separate occasions, to two separate people. The second occasion was two days prior to the time with PC Swift to someone called N (although the records available do not specifically record her saying to this person she was sold for sex but that question was put in the criminal case without objection being raised). It is pointed out that this now lends more support to such behaviour by her own family, further supported by her reaction recorded in her meeting with KV on 26 March 2014 when asked if her parents had ever received money for her she ‘looked extremely sad and refused to provide an answer or make eye contact’. This additional information resulted in both KV and KJ agreeing with Mr Storey in cross examination in this hearing that if they had known about these reports from City A they would have considered removing Z from her parents care, both for her own protection and so she was in a neutral environment.

 

 

The Judge did eventually conclude that some of the matters of concern relating to Z were proven (it is very difficult, from the outside, having not seen the undoubtedly huge volumes of paper and detail or heard the evidence, to know whether that is a fair decision or not – the Judge must certainly have been very worried about placing any credence on accounts given by Z that could not be independently corroborated and evidenced by other sources)

 

Discussion and Findings

  1. In considering these findings afresh I remind myself of a number of key matters:
  1. (1) That the burden of proof remains on the LA throughout. The parents do not have to prove anything.

(2) It is critical that I keep an open mind when considering the evidence again, which I do.

(3) I have not had the benefit of hearing and observing the oral evidence of Z whose evidence is such an integral part of the LA’s case.

(4) In considering the Lucas direction and in the event the court concludes a witness has lied the court may factor in the circumstances of the witness (including social and cultural) in considering why that witness may have told untruths.

(5) Whilst hearsay evidence is admissible the court must be careful to assessing the relevant considerations as to what weight it should be given.

(6) I must be careful when considering the wide canvas of evidence that this court is required to do that the burden of proof not reversed.

  1. Mr Storey was careful, in his well crafted submissions, not to make what was in effect a submission of no case to answer (recognising what is set out in cases such as Re Z [2009] 2 FLE 877). What he submits is that Z’s evidence is now so undermined and unreliable that it cannot be supported by what is, in effect, hearsay evidence that there has not been adequate or proper opportunity to challenge.
  2. Mr Feehan on behalf of the LA recognises the difficulties there is with the reliability of the evidence from Z, but submits that when looked at in the context of the corroboration that is available, albeit from mainly hearsay evidence, demonstrates that some aspects of her account is in fact credible to the extent that it is more likely than not that it occurred. He fully recognises there is no burden on the Respondents, but submits the court is entitled, when considering the wide canvas, to take into account in evaluating the evidence the Respondents evidence too. That must be correct although the court must be alive to ensuring that a weak case is not bolstered by evidence other than that called by the LA with the result that the burden of proof is reversed.
  3. This court in the previous hearing analysed and evaluated the evidence then available. On a fresh analysis and evaluation, in the light of the new material outlined above, I have reached the following conclusions in place of the findings set out at paragraph 4 above:
  4. (1) AK, JE and JC had much more contact with and knowledge of Z than each of them has revealed in their evidence in these proceedings.

(2) They were each aware Z was being sold for sex and that she was under 16 years.

(3) LF knew Z was being sold for sex and that she was under 16 years.

  1. I have reached those conclusions for the following reasons:
  1. (1) Whilst I acknowledge that within the criminal proceedings Z did not back down in her allegations about AK, no one has suggested that I should revisit my earlier conclusions about the ABE interviews after 6 March. There is no basis to do so.

(2) The findings I made concerning AK’s involvement in the arrangements for Z being sold for sex and that she kept Z in her home against her will were founded in large part on the first part of the ABE interview on 6 March. That now has to be looked at in the light of the further retractions and inconsistencies made by Z within the memory refreshing exercise, her oral evidence in the criminal proceedings and the fact hat this court has not had the advantage of hearing her give oral evidence. Whilst I was aware of and took into account the retractions and inconsistencies known about before the previous hearing, they are now of such a scale and extent in relation to allegations of serious sexual abuse that her account of her allegations regarding AK’s involvement in her exploitation has been very seriously undermined. The schedule of inconsistencies and lies produced on behalf of JE accurately sets out the position. The withdrawal by Z of the allegations against the two defendants in the criminal proceedings, are clearly very important. As set out in para 253 of the January judgment Z’s credibility is a central issue; in the light of the new material her credibility is now even more seriously undermined.

(3) Another factor that has to be considered and re-evaluated are the significant criticisms about the way the investigation was conducted, the numerous breaches of the ABE guidelines, the failure to challenge inconsistencies and the worrying lack of neutrality in the way Z was dealt with and the lack of balance in evidence gathering (for example not speaking to AD). These failures further seriously hinder the reliance the court can place on Z’s evidence.

(4) I have had to re-evaluate the consideration of motive for Z to lie in relation to AK. In the light of the fresh information the submission that she lies for the sake of it cannot now be readily ignored. There can be little doubt that Z has had the most difficult background, and has been grossly let down by those adults who have had responsibility for her care. I agree with the analysis by the LA in their closing submissions ‘that everything we know about Z, her background and experiences lend support to the fact that she has been sexually exploited. These experiences left her with little chance that she would be able to fortify herself against it’. The involvement of her own family in her difficulties also has to be re-evaluated in the light of the evidence about what occurred in City A. Her wholesale denial of any difficulties in City A in her oral evidence, together with her subsequent admission to her mother that she told untruths in evidence about City A, illustrates the extent of her vulnerability and unreliability. She has made up serious allegations about her father as she was not allowed to go out and about a former boyfriend due to jealousy about his new relationship.

(5) I have carefully considered what the LA submits is the corroborative evidence to support such a finding against AK as to her direct involvement in Z being sold for sex. It consists of hearsay accounts, unattributable intelligence records or inferences to be drawn from such evidence. Whilst this evidence leaves the court very suspicious of AK’s role in Z’s exploitation, supported by the court’s assessment of AK’s lack of credibility (which this hearing has not changed), I agree with the submissions made by Mr Storey that none of the witnesses that have been called to give evidence have directly implicated AK. The burden of proof is on the LA which, in my judgment, they have not discharged. Mr Storey also makes the point that the intelligence reports could arguably support AK in that over this period (2012/2013) her accommodation was being watched and monitored by the police, there were two police raids in 2012 yet no direct evidence has been called to support her involvement in prostitution or exploitation.

(6) The conclusion I reached previously regarding the enmeshed nature of the relationships between AK, JE and JC and their contact with Z remains secure for the reasons I set out in the January judgment. It is more likely than not they were each aware Z was being sold for sex, and that she was under 16 years. That conclusion is not fatally undermined by the unreliability of Z’s allegations concerning AK. In her interviews Z was able to give details about AK, JE and JC that were consistent with her having had more contact with them than they suggest. For example, she was able to identify AK and JE’s addresses, their children and she attended JC’s address for a bath all of which supports far more contact between Z and each of these women. Mr Larizadeh places reliance on the inconsistency of Z’s descriptions of JE (e.g as being Albanian) but that has to be balanced with other evidence which supports JE’s contact with Z. Z’s account of her contact with them is supported by evidence from a number of different sources; for example the detail AK was able to give in her interview about what Z had alleged (i.e. injections in her back and gang rape allegations) and the meeting with KD on 3.7.14. Whilst I have carefully considered again the criticisms of this meeting and record, in my judgment it provides a coherent account to support the much closer relationship of these women to each other and Z than they have each accounted for. KD was able to give good descriptions and distinguish when she did not know anyone named. Further support is provided by the telephone records of contact between AK and Z, which AK had no explanation for other than a generalised suggestion that others used her phone. It is of note that this phone contact was during one of Z’s missing periods and AK’s number was noted to be stored on Z’s phone when she was seen at school. The evidence supports Z being closely associated with IE and SS, both of whom were respectively visitors to JC and AK’s homes and IE is JE’s daughter.

(7) I have carefully considered why AK, JE and JC would lie about their relationship with each other and Z and am satisfied that it is to seek to distance themselves from Z and their involvement with her in order to undermine Z’s reliability.

(8) It is clear it is more likely than not Z was sold for sex, even if the court cannot make a positive finding who sold her. In her interviews Z said she was sold. Whilst there are some references to Z selling herself I reject that. The weight of the evidence clearly points to her being sold by others. CC in her interviews gives a detailed account of what took place, which corroborates the core of what Z describes. Whilst it is right that there were breaches of the ABE guidelines in the interviews with CC (such as not dealing with truth and lies at the start of the interview and a lack of neutrality in some of the questions) she had the opportunity the day before she gave oral evidence to view her ABE interviews again. She did not detract from the detailed descriptions she gave in those interviews of Z being sold for sex, she maintained that evidence despite being pressed about allegations made by Z about her which she denied. This conclusion is further supported by what JC told the social worker on 11 April (when an interpreter was present). JC’s denials of this record were not credible. The reference in SS’s interview to ‘whoever was (Z’s) boss or like that..they was using her’ further supports Z being sold. It inconceivable bearing in mind my conclusions about the nature of the relationship and contact between AK, JE, JC and Z that they were not aware of Z’s age and that she was being sold for sex. It was something Z did not seek to hide and had clearly been reported by others (such as JC, IE and SS).

(9) I can’t reach any conclusion as to the extent, if at all, Z’s family may have been implicated in some way in her exploitation. There is evidence that points both ways. ZM appropriately reported Z missing and took steps to secure appropriate medical help for her. However there is also evidence of Z saying she was selling herself to help her family, she was picked up by men from the family home and her reaction when asked by social workers whether her family were involved in her abuse.

(10) The further evidence since January 2015 doesn’t in reality affect the finding under re-consideration regarding LF. All those in his household and with whom he had contact with knew of the sexual exploitation of Z by individuals. The evidence still supports the conclusion that she was being sold for sex and that LF knew that, although not specifically of Z being exploited by JE. Those around him and in his household knew or suspected that about Z, and it is inconceivable that he was not aware of that too. I reject his oral evidence that he remained ignorant of this.

 

 

Whilst the Court did not make all of the findings that it had made first time round, enough were made to have still crossed the threshold. So the parents of those three families were really no better off after all of this litigation.

 

Achieving best evidence – a very critical examination

 

The Court of Appeal in Re E (A Child) 2016  were addressing an appeal from findings of fact that the father had sexually abused all of the children, including making them have sex with a dog, and of having taken them to hotels given them drugs and pills and allowed other men to abuse them or watch them. (I apologise for that graphic opening, I will try to keep the graphic content out of the rest of the post)

 

http://www.bailii.org/ew/cases/EWCA/Civ/2016/473.html

 

Quick history lesson – ABE, or Achieving Best Evidence, is the guidelines that were drawn up (and occasionally refreshed and honed) as to the police interviewing of children where allegations of abuse are being investigated. They came about as a result of the Cleveland scandal, where many children were removed into care for allegations of sexual abuse and the investigation process was flawed and nearly all of those children had been wrongly removed. When you think of the “Show us on this dolly where daddy touched you?” style of interviewing, that’s what ABE was aimed to stamp out.  The interviews are video-recorded and can be used as evidence in criminal proceedings and care proceedings – with the idea being that if the guidance is followed in spirit and to the letter, the chance of the child’s evidence having been contaminated or influenced by the person asking questions is reduced to a minimum. It’s really important.  I’m glad that the Court of Appeal are looking at this.

 

Let us start with  the delay between the allegations being made and an ABE interview being conducted.

  1. On 20th May 2015 the youngest child, D, then aged 7 years, made allegations to her foster carer implicating both Mr E and young A as having sexually abused her and her brothers. Further allegations were made to the foster carer by D on 25th May and these were in part supported by allegations subsequently made by her older brothers.
  2. All three complainant children were ABE interviewed by police on 27th May 2015. The reason for the delay between the initial complaint and the ABE interview was that the foster carer took the children away on a pre-arranged holiday during the intervening days. The process adopted by the foster carer, social workers and police, together with the content of the ABE interviews themselves, have been the subject of sustained challenge by the Appellant and those supporting the appeal before this court.

 

I have scoured the remainder of the judgment, but it does not seem to me that the delay forms part of the Court of Appeal’s criticism – there are MANY many others. It might, as a practitioner, have been helpful for the Court of Appeal to have been firm about the passage of time that ABE’s are taking – this one, in my experience, proceeded at rocket-lightning pace compared to the average ABE.  Sometimes, that passage of time reduces the chances of an accurate and reliable account being obtained – sometimes that account would rightly exonerate a parent and remove restrictions that are impacting on their family life, sometimes it would point strongly that there’s a case to be answered.

 

When should the Judge in the case see the ABE interviews?

 

In this case, the Judge had not watched the ABE interviews prior to the trial beginning. That, the Court of Appeal suggest, made the decisions she made at the start of the trial less solid (whether police officers should be called, whether the children should be called etc)

Standing back from the details of this specific case, Mr Tyler submitted that in any case the question of children giving live evidence should only be considered once the judge has viewed the ABE material. He suggested that it may be good practice for a judge to identify at an early stage whether he or she would attach weight to the ABE interviews if they stood alone. He told the court that, in his experience, the culture of the Family Court with respect to oral evidence from children was really unchanged from the position that had existed prior to the Supreme Court decision in Re W. Mr Tyler readily accepted a suggestion made by Macur LJ to the effect that a child’s welfare may in fact require a determination in favour of them giving evidence, notwithstanding any immediate adverse impact on the child from the process of coming to court, where the future placement of the child could depend upon findings of fact to which his or her oral evidence might relate.

 

  1. It is apparent from the transcript and from the fact that the first day of the main hearing was spent in viewing the ABE material, that the judge had not viewed the videos prior to determining the Re W application on 3rd November. Although it may onerous to do so, it is necessary, before reaching a conclusion on an application for children to be called, for the court to gain a considered view as to the strength of the existing evidence. Sub-paragraphs 9(f) to (j) are plain on this point and require to the court to have regard to:
      1. ‘(f) whether the case depends on the child’s allegations alone;

(g) corroborative evidence;

(h) the quality and reliability of the existing evidence;

(i) the quality and reliability of any ABE interview.’

So the Judge needs to see the ABE interviews before the trial, in order to have a properly informed view as to whether the children should give evidence.

Fast-track interviews

Within this police investigation, the police officers went to see the children AFTER the ABE interviews were made, and conducted interviews with them to obtain more detail / to check their account. Those fast-track interviews were not recorded.

In early June the police log records that the officer in the case “has since the ABE-s in an attempt to get some clarity from the child[ren] about their disclosure, been to the home address and completed a series of fast track questions with the three children to assist in forming a chronology.”

  1. Although not formally part of the ABE interviews themselves, Mr Tyler also submits that the judge should have been extremely concerned that the same police officer had subsequently visited the three children to conduct a ‘fast-track’ interview with them. The concept of a ‘fast-track’ interview involving child complainants in a sexual abuse inquiry has not been encountered before by any of the very experienced counsel in this appeal or by any of the members of the court. Brief notes of the fast-track interviews are contained in the police computer log. B had compiled a handwritten note following his ABE interview and the officer ‘went through’ each point in the note with him, subsequently making a brief summary record on the computer log of what B may have said. Such a process is wholly at odds with the ABE guidance. The record contains the officer’s subjective summary of what the child may have said in response to direct questioning. There is no record of the questions that were asked or of the child’s actual responses. With C the officer ‘went through what C had disclosed to [the foster carer]’; again there is simply a short summary made by the officer of what C may have said.
  2. Mr Tyler’s case is that the fact that the ‘fast-track’ interview took place, without any apparent regard for due process or the potential effect on the ability of the evidence of any of these children to be relied upon in any subsequent criminal proceedings, indicates a need for great caution in placing any reliance on the validity of the earlier process conducted by the same officer(s).

 

(Whilst I haven’t come across “fast-track interviews” taking place AFTER the ABEs, it has become common and in my view sloppy practice, that they happen beforehand, often as a sifting or viability assessment to see if the child will make any disclosures at the ABE.  They are often labelled as Q and A’s. And I think that they are wrong, for all of the reasons above)

  1. However, Mr Tyler has succeeded in demonstrating the following significant departures from recognised good practice by those undertaking the ABE interviews:

c) The children were subsequently seen at their home by the interviewing officer for a process of fast-track questioning.

d) The short summary note of what each child may have said during the fast track process is wholly inadequate.

[We’ll come back to the many other flaws. Again, I wish that the Court of Appeal had condemned the process of police interviewing children either before OR after the ABE process, but one can read between the lines]

Phase one of the interview not being filmed

Phase one is of course a very critical part of the interview – it is where rapport is built, and any observer can see how it established that the child understands things and understands the difference between truth and lies.  I have never heard of this not being filmed before.

Mr William Tyler QC, leading Ms Jennifer Steele who appeared for the appellant before the judge, has identified a number of potential flaws in the ABE process. The first relates to “Phase 1” as described in the ABE guidance in each of the three interviews. “Phase 1” is the preliminary part of the interview in which the interviewer establishes a rapport with the child through the discussion of neutral, non-relevant topics after a preliminary description of the room and the identity of each of those present. Phase 1 should also include a discussion of the “ground rules” and an attempt to establish the degree to which the child understands the importance of telling the truth and the difference between truth and lies. It is apparent that, whatever process was undertaken with each of these three children with respect to the Phase 1 matters, it occurred off camera. The absence of recorded information as to this important early stage is compounded by the fact that no written record was kept of these interviews, as is normally required within the ABE scheme or, if any written record was maintained, it has not been disclosed into the family proceedings. It is therefore plain that the interviewer had some discussion with each child before entering the video suite, but there is no evidence of what was said. Mr Tyler submits that this gap in the evidence is important and can only reduce the potential for a judge to rely upon the answers given by the children in the subsequent stages of each interview which were recorded. 

The Court of Appeal add that to the list of findings about flaws in the ABE process.

a) The introduction and ‘truth and lies’ aspects of Phase One were not undertaken on camera. There is no note or other record of what was said to each child, and the circumstances in which it was said, prior to entering the video suite.

What came across as the purpose of the ABE

  1. Moving on, Mr Tyler submits that each of the three interviews is of a very poor quality in that the interviewing officer, with each child, uses blatantly leading questions during which elements of the narrative, not previously referred to by the child, are introduced. A most striking example of this is at the very start of the taped part of D’s interview, less than one page into the transcript where the officer says:
    1. ‘Okay I think that’s about it for me isn’t it we’ve done the intros. So obviously we know why you’re here today about what we’re going to talk to you about, yes, and I think it’s something you told [foster carer]. Okay can you just tell me, go from the start as much as you can about what’s been happening, do you remember what you told [foster carer], do you remember talking to her last week about something that had been happening with you and your brothers?’

D is unresponsive to this and similar requests, which then leads the interviewer to add:

‘[Foster carer] told us a little bit about what you said last week and it was to do with [Mr E’s first name given] and [incorrect name for A given], do you remember that now?’

This is but one example of the approach to questioning adopted by this interviewer throughout each of the three interviews.

  1. Mr Tyler took us to TW v A City Council [2011] EWCA Civ 17; [2011] 1 FLR 1597 in which this court was highly critical of the ABE process that had been undertaken in that case. At paragraph 52 Sir Nicholas Wall P said:
      1. ‘As we have already pointed out, the [ABE] 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 are left with the 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.’ [Emphasis in original]

It is a very easy trap to fall into during an ABE interview, which is precisely why there is so much guidance in Achieving Best Evidence, and why it requires specific training to be able to do it properly, and why sloppiness and deviation from the Achieving Best Evidence guidelines is so important. This is classic Cleveland Enquiry stuff.

I am not attacking these individual officers, I think it is a national malaise that Achieving Best Evidence isn’t as integral to the process as it needs to be.  And of course, police officers are fundamentally trained to investigate a crime and get the evidence of it happening. In an ABE, the fact that there may have been no crime and there may be evidence from the children of that, is just as important.

 

The hour-long break in the interview

 

For one of the children, the interview paused in the middle for an hour. When it resumed, the child was substantially more forthcoming. The obvious question is, what EXACTLY happened in the interim?

 

As I have already indicated, the interview with D was interrupted at that point for approximately one hour during which time the child was elsewhere in the police station. On returning to the interview room her demeanour is markedly different from the unresponsive presentation previously demonstrated. Again, no written record has been provided of what transpired during this interval. Mr Tyler submits that the judge should have permitted the police officer to be called to explain events during the missing hour. The only evidence available came from the foster carer who claimed that she said no more to D than “you need to say all the things while you are here, D”.

 

The Court of Appeal accepted this as a significant flaw

b) No note was kept of what transpired with D in the police station during the hour that she was out of the interview room.

 

The Judge’s refusal to call the police officer

 

Given the identified flaws, the Court of Appeal felt that the Judge was wrong to have refused the application by the parents to have the police officer attend Court to give evidence. And of course she made that decision not having seen the ABE interviews themselves.

The absence of information as to the Phase One process, the need to understand from the police officers what, if anything, they had said to D during her one hour absence and the need to understand in greater detail than the computer log provided what occurred during the fast-track interviews, made it necessary, in my view, for the police officer to be called. In the context of an 8 day hearing, the judge’s refusal of the application to call the officer on the basis that it was too late was, on the information given to this court, wrong in the absence of clear evidence that it would not be possible to call the officer at some stage in the hearing (either in person or over a video or telephone link).

 

Judicial analysis of the ABE interviews

  1. The conclusion that I have reached to the effect that it was not open to the judge to hold that the ABE interview material was reliable in the absence of a full and thorough evaluation of the potential impact of the numerous breaches of procedure, renders it unnecessary to undertake a full description of the various criticisms that Mr Tyler makes of the judge’s evaluation of the children’s evidence. The key matters raised are, however, important and are as follows:
    1. a) The judgment opens, after four short introductory paragraphs, with the judge’s summary of the ABE interviews of each child. These summaries, which are not set into any context and are not preceded by any account of what the children are reported as having said when the allegations were initially made to the foster carer, elide description with selective evaluation and then findings.

b) No consideration is given to the potential for the manner in which the allegations were first made to impact upon the reliability of what was subsequently said by the children.

c) In the absence of any direct corroborating evidence, the judge failed to evaluate the various factors which militated against the truth of the allegations.

d) There is a failure to take account of the fact that C had twice made, and later withdrawn, false allegations of sexual abuse against other individuals.

e) The judge wrongly reached the conclusion that the evidence of each child corroborated that of the others. There was inadequate analysis of inconsistencies in the accounts, both internally for each child and between the three children.

  1. Although I consider that there is some validity in each of the grounds of challenge that Mr Tyler has raised, the most significant, in my view, is the first relating to the judge’s analysis of the content of the ABE interviews and the last relating to inconsistencies. I do not propose to say anything more as to the content of the ABE material and I will deal with the point about inconsistency very shortly.
  2. Mr Tyler’s skeleton argument plainly establishes the following propositions on the available evidence:
  1. i) each child gave a different account to that given by his or her siblings;

ii) each child made a number of significant factual allegations to the foster carer which were not repeated in their ABE interviews; and

iii) B effectively made no allegations of sexual abuse in his ABE interview.

  1. The judge’s approach to inconsistencies is seen at paragraph 16 of the judgment:
    1. ‘D’s account is different from her brothers. There are inconsistencies in the accounts between the three children which is said undermines the veracity of the accounts but the very same inconsistencies are also evidence that the children have not colluded or rehearsed their evidence. I am satisfied that this is not a prepared script.

Later, at paragraph 28, she states:

‘There is consistency from all three in the ABE interviews, which, although different, each corroborate different aspects of the primary disclosure.’

Finally, in response to a request for clarification after the draft judgment had been circulated, the judge added:

‘The inconsistencies in the children’s ABE interviews are addressed.’

  1. I am afraid that I consider that the judge’s approach to the many inconsistencies within the children’s accounts falls well short of the level of analysis that this evidence required. Without descending to detail, three short points can be made. Firstly, whilst it is correct that the inconsistencies did not demonstrate that the children were trotting out a script, that observation could not, at a stroke and without more, obviate the need for the judge to evaluate the inconsistencies in more detail. Secondly, it is simply not possible to hold that each child giving a different account in his or her ABE interview in some manner corroborates the account given by one or both of the others. As the judge observed, D’s account in her ABE interview was different to her brothers. B’s ABE interview was effectively devoid of any positive allegation being made at all by him. That is not corroboration. Thirdly, this broad brush and superficial approach to the inconsistencies was carried forward by the judge when making her detailed findings which include a number of specific allegations which were only made by one of the children on one occasion and neither repeated by them subsequently nor supported by a similar account from either of the other two children.

 

 

The children giving oral evidence – the Judge’s decision

 

  1. The question of whether or not any of the children should be called to give live evidence was considered by the judge at the IRH on 3rd November 2015. Prior to that hearing Ms Steele, on behalf of the Appellant, had filed a six page position statement in support of the formal Re W application that had been made on behalf of her client. In her document Ms Steele makes detailed submissions relating to the evidence in these proceedings under the various headings identified by Baroness Hale in Re W and supplemented by guidelines issued by the Family Justice Council Working Party on Children Giving Evidence (set out at [2012] Family Law 79).
  2. The transcript of the hearing on 3rd November 2015 did not become available to the court and the parties until the morning of the oral hearing of this appeal. Prior to that stage each party had referred to the judge giving a very brief judgment prior to dismissing the Re W application. The transcript, however, shows that, in fact, no judgment of any sort was given by the judge on that day. During the course of the ordinary business of the IRH the judge made the following references to the topic:
    1. “[the presence in court of the Guardians in the F Children’s case during the fact finding hearing would enable the Guardians/court]… to keep under review whether or not, for example, if I decided against hearing the evidence from the children, I do not know whether I will or not, I have not decided that, but that might be something which will need to be kept under review, because it is possible that the way the evidence comes out suddenly an issue becomes very, very clear which needs to be resolved factually and it would be therefore helpful to the Court, if the Guardians relevant to all the children were able to give guidance, help, recommendations in respect of whether or not I should for example revisit the decision that I made earlier.” (Transcript page 7).

“Well I think at some point a determination is going to have to be made in respect of the evidence of the children and it is probably better to do that in isolation at an earlier stage…”

Ms Steele relied upon the detailed submissions made in the context of Re W in her position statement. The transcript then continues:

“JUDGE WATSON: Well Ms Steele I am very pleased to see how you have set out it. You have set it out very clearly the concerns and the difficulties and indeed the contradiction in terms of the evidence. What I am struggling to see is how calling the children is actually going to improve his position. All of these matters can be dealt with in a written position statement as you have done, in oral submissions, because the one question that you cannot put to the child witnesses, is, ‘You’re lying aren’t you’.

MS STEELE: I accept that. However, the Local Authority are reliant on the evidence given to a number of different sources of the truthfulness of that.

JUDGE WATSON: Yes.

MS STEELE: My client or me on my client’s behalf have to be able to, in my submission, not put to them that they’re lying but be given the opportunity to put to them the contradictions in their evidence.

JUDGE WATSON: Well I would not allow you to put the contradictions. You have got to bear in mind the age of the children-

MS STEELE: I of course-

JUDGE WATSON: -and their ability to deal with that sort of complex questioning. It is, the type of questioning which the, I am sure you are very familiar with the advocates tool kits and the gateway rules that apply in criminal proceedings that would apply in a case like this, and they set it out very clearly. I have just, for my own benefit, just summarised them as no repetitive questions, short questioning, no need to put the case, no tag questions, no comments. So all of the matters which you have properly put out, set out in this [inaudible], could not be put to the child witnesses.

MS STEELE: What, my understanding is that of course I can try and clarify the evidence they have given. Yes, I can’t put certain things and I fully accept that but I can put to them certain inconsistencies or certainly ask them to clarify which they say is correct. That kind of thing. Excuse me.

JUDGE WATSON: Well and to what end that you have confused the witnesses, that is not going to help the Court in deciding where the veracity in truth is. The truth is by looking at the careful submissions that you have made and weighing those into the balance. I do not necessarily have to accept what a child says on an ABE interview.

MS STEELE: No.

JUDGE WATSON: I need to look robustly at what is said in the light of all the other evidence that I hear.

MS STEELE: My Lady I don’t think there’s very much else that I can add-

JUDGE WATSON: No.

MS STEELE: -with what I’ve already said in there and what I’ve said to you.

JUDGE WATSON: Yes.

MS STEELE: There’s really nothing else I can add.

JUDGE WATSON: No.

MS STEELE: Unless you would like me to attempt to-

JUDGE WATSON: No, I, you have set it out extremely fully and I have very much in mind the need for a fair hearing but unlike in criminal proceedings, where the, it is assumed that children will give evidence. They give their evidence in a very, very truncated way and for example the ABE interview only such elements as are agreed are put before the jury. Whereas I will see the entirety of the ABE, I will see it warts and all if I can use that expression. So I will be much more susceptible to any suggestion that there are contradictions that are unclear, that it is [inaudible], I do not need that to be put to a seven year old or a nine year old or indeed a 14 year old who has the difficulties that B has.”

 

I found the underlined exchange quite extraordinary. Of course a great deal of care needs to be taken in asking questions of a young child and of course a “gloves-off” attack on inconsistencies that just muddles and mixes up the child is going to be abusive and not advance the case, but the judicial suggestion here that this would be counsel’s agenda is extraordinary. Just my personal view.

 

The Court of Appeal’s view

  1. Having considered the transcript of the hearing of 3rd November, Mr Tyler made the following submissions:
    1. a) The judge had not viewed the ABE interviews prior to the IRH and she was therefore not in a position to form a concluded view upon the issue of oral evidence from the children;

b) Despite the detailed submissions made by Ms Steele referring specifically to the various elements identified by Baroness Hale, the judge made no reference to those submissions (save to acknowledge their existence) and did not refer to Re W at all during the hearing;

c) In the circumstances the judge’s consideration of the important question of the children giving evidence was wholly inadequate and could not be supported.

  1. Standing back from the details of this specific case, Mr Tyler submitted that in any case the question of children giving live evidence should only be considered once the judge has viewed the ABE material. He suggested that it may be good practice for a judge to identify at an early stage whether he or she would attach weight to the ABE interviews if they stood alone. He told the court that, in his experience, the culture of the Family Court with respect to oral evidence from children was really unchanged from the position that had existed prior to the Supreme Court decision in Re W. Mr Tyler readily accepted a suggestion made by Macur LJ to the effect that a child’s welfare may in fact require a determination in favour of them giving evidence, notwithstanding any immediate adverse impact on the child from the process of coming to court, where the future placement of the child could depend upon findings of fact to which his or her oral evidence might relate.

 

Note particularly this paragraph of the judgment

 

It is of note that, despite the passage of some six years since the Supreme Court decision in Re W, this court has been told that the previous culture and practice of the family courts remains largely unchanged with the previous presumption against children giving evidence remaining intact. That state of affairs is plainly contrary to the binding decision of the Supreme Court which was that such a presumption is contrary to Article 6 of the European Convention on Human Rights.

 

  1. In any case where the issue of children giving oral evidence is raised it is necessary for the court to engage with the factors identified by Baroness Hale in Re W, together with any other factors that are relevant to the particular child or the individual case, before coming to a reasoned and considered conclusion on the issue.
  2. It is crucial that any issue as to a child giving evidence is raised and determined at the earliest stage, and in any event well before the planned trial date. The court will not, however, be in a position to come to a conclusion on that issue unless it has undertaken an evaluation of the evidence which is otherwise available. Where there has been an ABE interview, and the quality and/or content of that interview are to be challenged, it is likely that the judge will have to view the DVD before being in a position to decide the Re W issue.
  3. The court should also have regard to the Working Party of the Family Justice Council Guidelines on the issue of Children Giving Evidence in Family Proceedings issued in December 2011 [2012] Fam Law 79. The Guidelines, which were specifically developed to assist courts following the decision in Re W, contain a list of no less than 21 factors to which the court should have regard when determining whether a child should give oral evidence in the context of the principal objective of achieving a fair trial [paragraph 9(a) to (v)]. The Guidelines require the court to carry out a balancing exercise ‘between the following primary considerations:
    1. i) the possible advantages that the child being called will bring to the determination of truth balanced against;

ii) the possible damage to the child’s welfare from giving evidence i.e. the risk of harm to the child from giving evidence.’

  1. Whilst not all of the elements described by Baroness Hale in Re W or in paragraph 9 of the Guidelines will be relevant in every case, it is plain that the court undertaking a Re W determination will need to engage in a relatively full and sophisticated evaluation of the relevant factors; simply paying lip-service to Re W is not acceptable. By ‘full’ I do not wish to suggest that a lengthy judgment is required, but simply that the judge must consider each of the relevant points with that process recorded in short-form in a judgment. Such a detailed process is in my view justified given the importance of the decision for the welfare of the child and for the fairness of hearing.
  2. It is plainly good practice for the court to be furnished with a written report from the children’s guardian and submissions on behalf of the child before deciding whether that child should be called as a witness. This court understands that it is, however, common-place for guardians to advise that the child should not be called to give evidence on the basis that they will or may suffer emotional harm as a result of doing so. Where such advice is based upon the consideration of harm alone, it is unlikely to be of great assistance to the court which is required to consider not only ‘harm’ but also the other side of the balance described in the Guidelines, namely the possible advantages that the child’s testimony will bring to the determination of truth.
  3. Part of any consideration of the overall welfare of a child must be that decisions as to his or her future, or the future of other children, are based, so far as is possible, upon a true understanding of important past events. Whilst the process of giving oral evidence in relation to allegations of past harmful experiences will almost always be an unwelcome one for any child, and for some that process itself may be positively harmful, those negative factors, to which full and proper weight should be given, are but one half of the balancing equation. In some cases, despite the negative factors, it may nevertheless be in accordance with the wider welfare interests of the child for him or her to be called to give evidence. Each case will be different, but even where the child may suffer some emotional harm from the process, if such harm is likely to be temporary and where the quality and potential reliability of the other evidence in the case is weak, it may (in addition to any fair trial issues) nevertheless be in the child’s best interests to give oral evidence. If the ABE interview process is poor, and there is little or no other evidence, then it may be that no findings of fact in accordance with allegations made by a child can properly be made unless the child is called to give evidence. The Re W exercise must plainly take account of such a situation.
  4. The observations made in the previous paragraph are intended only to make the point there made; they are not intended to establish any new test or template for decision making over and above what is said in Re W and the Guidelines to which recourse should be had as a matter of routine in every case where there is a Re W application.
  5. Turning to the present appeal, it is unfortunately plain that the consideration given to the Appellant’s Re W application by the judge fell well short of what was required. I have set out the relevant passages from the transcript in full (paragraph 50 above). No formal judgment was given. At no stage in the hearing did the judge even refer to the factors set out by Baroness Hale in Re W or to those listed in the Guidelines.
  6. It is of concern that the judge suggested, during submissions, that the court, assisted by the guardians, would keep the issue of oral evidence under review during the main hearing itself. The question of whether or not a child is to give oral evidence should be determined well in advance of the hearing at which she or he may be called. To contemplate deciding, at a later stage and once the hearing itself has started, to call them is likely to increase the potential for the process to impact upon the child in a harmful manner and would allow little or no time to prepare the child and those caring for them.

 

 

Child’s article 6 rights

 

In this case, one of the children, A was 15 although with some learning difficulties – he was not capable of instructing a solicitor and was so represented by the Guardian and the child’s solicitor. When the Guardian and solicitor met with him, the allegations were discussed. The Judge directed that a note of those discussions be filed and served.

  1. A has never made any allegation of sexual abuse against his father or of being incited or encouraged by his father to abuse others. He did not admit that he had himself committed any act of sexual abuse on others. On 29th May 2015 he was interviewed by the police. This was not an ABE interview, but an interview under caution which took place after he had been arrested on suspicion of having committed rape. The interview lasted for one hour. A engaged with the process throughout by answering factual questions. When sexual allegations were put to him he was clear and plain in his complete denial of being involved in any sexual behaviour. An audio recording of this interview is apparently available, but no party invited the judge to listen to it.
  2. On 27th October A’s social worker visited him in order to ascertain his ‘wishes and feelings in respect of the upcoming fact finding hearing’. The social worker’s statement records that A asked what a fact finding hearing was and that she explained that the allegations that had been made against him and his parents would be put to the judge, along with other matters that concerned the local authority. She states, ‘A nodded as I spoke, suggesting that he understood’. He was then told that the judge would consider the evidence and make a decision on the likelihood of the allegations being true or not. A’s question following this explanation was about the options for his placement in the event that the allegations were found proved or not proved. The social worker records that when she explained that if no facts were proved she would work with A and his parents to determine how best to move him back home at a pace that he was comfortable with, ‘again A acknowledged this and nodded as I spoke’.
  3. The social worker went on to record that she discussed the allegations that had been made against A and that throughout this discussion he maintained eye contact with her and had open body language. When she explained to A that, with regard to allegations made by D against him, there were only two people who are aware of what, if anything, took place, ‘A nodded at this statement, however did not offer any discussion around this.’ When the social worker asked if A had ever seen behaviour such as that which had been alleged, A’s body language was said to change in that he responded with short answers and began to fidget with his hands, he was, however, still engaging with the conversation. A worker from the unit then joined the conversation and, after trying to explain to A what ‘learned behaviour’ was, he asked A if ‘there was anything he wanted to share at this point’ to which A replied ‘not right now’. When asked whether he might do so later, A said ‘yes, I think so’.
  4. On the 2nd November 2015 A’s CAFCASS guardian and his solicitor visited him in the unit in which he is now accommodated. On the day following the visit HHJ Watson made an order requiring the guardian to file a statement setting out what had occurred during that visit. The guardian complied with that direction by filing a statement on 8th November in which she described meeting A (together with his solicitor and a worker from the unit, ‘G’). A was told by his solicitor that the purpose of the visit was to meet him in order to go through the evidence that had been filed against him. It is not clear whether or not A was told that the meeting was or was not confidential on the usual solicitor/client basis. The statement describes A being given a broad description of the material that had been filed with the court and it records that A either remained silent or gave monosyllabic answers to any questions put to him.
  5. The statement goes on to state that the solicitor explained to A that only A knew if anything sexual had happened involving him and that the solicitor and guardian needed a ‘steer’ from A as to whether there had been anything sexually inappropriate which had happened to him in the past or not. A did not respond to this request and the statement describes time passing with breaks for tea and others matters being discussed before continuing:
    1. “I then suggested that A had a further break and suggested a simple YES (indicating there had been sexually inappropriate behaviour involving A) or NO (there had not). I wrote the two words on a piece of A4 paper and left the room.

When I returned A and G had gone for a further break. They later returned with the A4 paper folded in half. On opening the paper, the word YES was ticked. …

G then explained that A sat with him on a bench outside during the break. G felt that A was so tense that he was physically unable to take the pen and make the mark himself. G held the pen above one answer and then the other and asked A which answer A wanted G to tick. A indicated YES and G ticked it.

[Solicitor] and I did not question A or G further. G stated he would inform A’s key worker when he took over at 3pm.

I was aware that A’s information would be disclosed to his parents on 3.11.15. A was due to have contact on 5.11.15. I agreed to phone the unit later to inform them that Mr and Mrs E will be aware of events following court on 3.11.15. …”

 

The Court of Appeal point out that A had legal professional privilege relating to that visit and had not been asked to waive it. His lawyer was present, rather than just the Guardian.

 

  1. The first relates to the professional responsibilities of A’s solicitor and guardian during the process of trying to obtain his instructions on the allegations that were to be made against him in the proceedings. A, as a party to the proceedings who is represented by his own solicitor, must be entitled to the same protection afforded to all other individuals who undertake communications with their lawyers. No suggestion was made in the hearing of this appeal that any different standard or approach should be taken to A either because he is a child or because he may lack the capacity to instruct his solicitor directly. The importance of legal professional privilege was plainly stated by Lord Taylor in the House of Lords decision of R v Derby Magistrates’ Court, ex parte B [1996] AC 487:
    1. ‘The principle which runs through all these cases, and the many other cases which were cited, is that a man must be able to consult his lawyer in confidence, since otherwise he might hold back half the truth. The client must be sure that what he tells his lawyer in confidence will never be revealed without his consent. Legal professional privilege is thus much more than an ordinary rule of evidence, limited in its application to the facts of a particular case. It is a fundamental condition on which the administration of justice as a whole rests.’
  2. The express purpose of A’s solicitor and guardian visiting him on 2nd November was to go through the evidence against him for the purposes of the forthcoming hearing. It is not apparent from the guardian’s statement or any other material that we have seen that the question of legal professional privilege was considered or discussed with A. The following day the fact that the visit had occurred was made known to the court and the judge directed the guardian to file a statement giving an account of it. There is no indication that that direction was contested or that the solicitor and guardian expressly purported to waive A’s legal professional privilege on his behalf. At the hearing of this appeal Miss Meyer did not argue that the issue had been addressed at all. The result was that the full details of A’s meeting with his solicitor to discuss these allegations, such as it was, became fully known to the court. In the event A had said very little of note during this meeting, but in another case the situation may be very different. It is obviously most important that, in the case of a vulnerable young person, those who are instructed to act on his behalf where he or she is facing serious factual allegations are utterly clear as to their professional responsibilities and astute to ensure that their young client’s rights are properly acknowledged and protected.

 

[This all VERY important for children’s solicitors]  The Court of Appeal actually found that A’s article 6 rights had been breached by this procedure.

 

Obviously with all of these flaws, the findings were overturned, and the case sent back for re-hearing.

  1. In conclusion, I am satisfied that this appeal must succeed on the following broad bases:
  1. i) The judgment wholly fails to acknowledge and then analyse the numerous and substantial deviations from good or acceptable practice which are evident at every stage of the police interaction with the three complainant children, both during the ABE interviews and by undertaking the ‘fast-track’ interviews thereafter.

ii) The application for the police officer to be called to give oral evidence should not have been refused (unless, on investigation, it was impossible to call the officer at any stage and on any basis during the hearing).

iii) The judge’s analysis of the children’s evidence is open to the valid criticisms made in support of the appeal. In particular the judge’s approach to, and use of, the inconsistencies within the evidence of the three children fell well short of what was required.

iv) The judicial analysis of the formal and properly presented Re W application made by the appellant was so wholly inadequate and, in effect, simply was not undertaken. This, of itself, is an error of sufficient materiality to justify setting the fact finding decision aside.

v) A’s right under ECHR, Article 6 to a fair trial and his right to the protection of legal professional privilege were breached to a substantial degree.

vi) The judge’s analysis of the evidence of what A had said, together with his presentation, when being invited to address sexual matters was both confused and inadequate. There is a real risk that every aspect of what is recorded by the social worker, guardian and key worker in October, November and December 2015 relates entirely to his complaint of abuse by two uncles five years earlier. The potential for that to be the case was not taken into account by the judge and, in any event, the judge wrongly conflated evidence about that past abuse with the entirely separate recent allegations at a number of stages in her judgment.

Given that all of the police investigations came up with no corroborative evidence and the case was based almost entirely on the children’s allegations and the ABE interviews, the LA will have an uphill struggle at that re-hearing.