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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.

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Can you compel a child to give evidence?

 

The Court of Appeal in Re S (children) 2016 consider this point of law, and whilst they say that they are explicitly not ruling on it, they do give the answer

 

http://www.bailii.org/ew/cases/EWCA/Civ/2016/83.html

During the appeal hearing, the question arose as to whether the judge could have compelled K to give evidence if she remained unwilling to do so. I am grateful to counsel for efficiently providing an agreed note of the legal position immediately following the hearing. As that note recognised, the question of whether a court can/should use its powers to issue a witness summons in relation to a reluctant child in family proceedings has not been considered by the Court of Appeal or the Supreme Court since the Supreme Court’s decision in Re W (supra). The present case was not one in which we needed to hear oral argument on the subject and I would not wish to be thought to be expressing any view about it. However, it may be helpful to record that counsel agreed that a competent child is a compellable witness in civil proceedings and that a witness summons could have been issued under section 31G of the Matrimonial and Family Proceedings Act 1984 if appropriate. 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.

 

So

  1. If the child is competent  (rule of thumb here is going to be functioning at about the level of an average 13 year old, but there may be other factors which make an older child not competent or a younger one competent), then they are a compellable witness.
  2. A compellable witness can be made to attend Court to give evidence under a witness summons
  3. The protection against self-incrimination in s98 Children Act 1989  doesn’t apply to a child – so they would have to be warned about the risk of possible criminal proceedings arising from their evidence.
  4. However, the punishment for a person not obeying a witness summons (i.e what you do if they don’t turn up) are imprisonment or a fine.
  5. You can’t imprison a witness under 18 for not obeying a witness summons.
  6. That leaves you with a fine.  Unless the child witness is Richie Rich or Mustafa Millions, that doesn’t really help.
  7. So you CAN compel them, but you can’t actually do anything if they call your bluff.

 

That’s the legal interest in the case. Other than that, it is always worthy of note when the Court of Appeal split. The main issue here was that a 15 year old K, made allegations of sexual abuse and reported them to the police. There was then something of a backtracking when the police wanted to press charges. K did not want to press charges, she had wanted the abuse to stop. She said to the police that she was not retracting the allegations, but didn’t want charges to be pressed.  However, one police note of a conversation with K recorded that K said she had made the allegations up.  K then wrote two letters saying that she had made the allegations up and that things had got out of hand.

Those representing the alleged perpetrator in the family Court proceedings about K and her siblings understandably wanted K to be produced as a witness. A judicial decision was taken not to compel her attendance, and the Judge went on to make findings (including one which was supported by a medical but was explicitly not an allegation that K had ever made herself).  The findings and the case management decision were appealed.

All three of the Court of Appeal Judges said that the finding which was suggested by medical examination but had never been a claim that K had made had to be overturned. Two of the Judges held that the other findings were safe and should not be overturned. The third took the opposite view.

 

I will set out the minority view, which was not the decision of the Court of Appeal, because I think it contains some powerful arguments (even though they were not successful). For my part, I think it is very difficult to make findings of such a serious nature as sexual abuse when there are changes of position by the complainant, and letters of retraction, without hearing some direct evidence from the complainant. I think that the Judge worked very hard to make it as fair and balanced a judgment as possible, but I would have been with Lady Justice Gloster on this, I just don’t think that the findings can be considered safe in this context. The burden of proof is on the LA to prove that the abuse happened, not on the accused person to prove their innocence.  [Sometimes you do end up with cases where there are very strong suspicions but also doubts, and what tips the balance either way is the credibility of the complainant. If the accused person cannot properly test the complainant’s evidence, the right to fair trial is questionable, for me.]

 

Lady Justice Gloster:

 

  • It is with considerable diffidence that I disagree with views expressed by such experienced family judges as Lady Justice Black and HHJ Moir. This court is rightly very cautious about interfering with case management decisions and second-guessing findings of fact made at first instance by careful family judges. However this case has left me with a deep sense of unease, both in relation to the initial decision of HHJ Moir dated 16 September 2014 that K was not to give oral evidence in the finding of fact hearing and the judge’s subsequent fact-finding judgment dated 15 October 2014 (the order in relation to which is inappropriately described as a “case management order”) in which she held that the Appellant had indeed sexually abused his sister, K. That concern is aggravated by the fact that, as my Lady, Lady Justice Black, has held (and as I agree) there was no basis for HHJ Moir’s finding that the Appellant had anally abused K.
  • The critical features of this case may, in my judgment, be summarised as follows:

 

i) The single issue was whether the Appellant had abused K.ii) The case against the Appellant depended entirely on the veracity of K’s allegations.

iii) The burden of proof at all times was on the Local Authority to establish on the balance of probabilities that the abuse had occurred.

iv) There was no medical evidence of vaginal penetration, despite K’s repeated allegations that she had had full penetrative sex and that she was “no longer a virgin”. In this context the judge appears to have relied on what I regard as the somewhat ambivalent evidence of Dr Jones that “penetration through the hymen can occur without leaving any physical signs”; see paragraph 30 of the judgment.

v) The ABE video interviews of K, upon which the judge heavily relied in reaching her conclusions, had taken place in March and April 2013, at a time well before K had started to attempt to halt the criminal process (July 2013) or had begun, albeit somewhat equivocally, to retract her allegations in their entirety on the grounds that she had made them up (16 September 2013); see paragraphs 9 –13 above for the chronology. So those interviews contained no evidence about the reasons for her retractions.

vi) K frequently changed her mind as to whether she was prepared to give evidence. She informed her guardian that her allegations were untrue and that she wished to give evidence. Subsequently it appears that she changed her view and that she did not want to give evidence. Her guardian assessed her as a “mature young person who had the capacity and competence to give instructions.” The social worker who assessed described her as a “determined and strong willed individual who speaks her mind”, and also observed K as being “quite fragile in her presentation and lacking in self-esteem.”

vii) In deciding whether K should give evidence, the judge relied upon the opinion of K’s guardian and the social worker to the effect that:

“I do not feel that [K] is able to recognise any links to her self-reported frustration and anger with the coping strategies she may have adopted to deal with how she was feeling with her experiences of the current situation. I feel that she seeks to display a certain persona in order to ease her emotions while having built up a barrier up to others to cover how she is feeling.

….

I would not be in support of [K] giving direct evidence at the fact-finding hearing due to the concerns outlined above. I do not feel that she is emotionally able to deal with the impact that this could have on her. I feel [K] would struggle to manage in-depth questioning on the basis that giving direct evidence is to have her say and [inaudible]”.

viii) On any basis, the evidence of K’s guardian and the social worker as to K’s wish or ability to give evidence at trial was highly unsatisfactory and vague opinion evidence. It could not replace an assessment of K’s evidence by the judge.

ix) As a result of the judge’s ruling that K would not be required to give evidence, or otherwise be subjected to any questioning as to why she had changed her mind, because of her so-called “vulnerability, a fragile presentation and her lack of self-esteem”, the reality was that the Appellant was deprived of any effective opportunity to challenge the veracity of K’s case.

x) The case was one of huge importance for the future life of the Appellant and his relationship with his two infant sons and his partner, their mother. It clearly raised serious issues, so far as he was concerned, in relation to his rights under Article 6 of the European Convention of Human Rights (“the ECHR”) to a fair trial, and, so far as he, and his children were concerned, in relation to his rights under Article 8 to a family life.

 

  • In my judgment HHJ Moir’s case management decision dated 15 October 2014, in which she decided that K should not be called as a witness, failed in any adequate way to weigh up the two relevant considerations set out in Re W (Children) [2010] UKSC 12 namely: the advantages that a child giving evidence will bring to the determination of the truth; and the damage which it might do to the welfare of the child witness. In my judgment, there was no adequate medical, or indeed other, evidence, apart from the vague and dubious views of K’s guardian and the social worker, to support the conclusion that it would be so harmful for K to give evidence that she should not be asked to do so. Nor was there any adequate analysis by the judge as to why those concerns trumped the entitlement of the Appellant to question why she had retracted, or, at the least, to some extent resiled from, her previous allegations.
  • As to the first consideration, K was at the time of the fact-finding hearing 13 years and 10 months old and had no cognitive impairment. There was no reason on age and maturity grounds why she should not have been called as a witness. She had displayed as a person who was at least to some extent prepared to exert pressure on the authorities to force the outcome of the criminal proceedings. She clearly had differing attitudes at different times as to whether she wanted, or was prepared, to give evidence. She was a mature young person who had been described as a “determined and strong willed individual who speaks her mind”; see above. Her allegations were extremely serious. There was, in my judgment, no adequate consideration by the judge as to whether K should be required – and indeed whether it would be in K’s interests for her to be required – to give evidence, which either stood by her previous allegations, or which explained the circumstances in which she had resiled from them. Whilst, whether her allegations were true or false, it might well have been distressing or demanding for her to have given evidence, there was no psychiatric or psychological evidence to support the idea that it would have been mentally damaging for her to have given evidence. There was no consideration by the judge as to the advantages to K personally of facing up to the consequences of the allegations which she had made, whether they were true or false, or as to the disadvantages to her of being allowed to avoid responsibility for the consequences of her allegations by not being required to attend trial.
  • Moreover, it was extremely unclear whether K was an unwilling witness or not. She changed her mind frequently about wishing to give evidence in the months leading up to the judge’s ruling and had not been asked in the weeks prior to the ruling whether she would, in fact be prepared to give evidence (whether with or without special measures). Indeed it is significant that the final order dated 8 December 2014 recites the fact that K “would like to meet with the judge”, although the judge ruled that this could not take place until the proceedings were over.
  • In my view the judge was also wrong not to explore other ways in which K could have given evidence, apart from being subjected to cross-examination in open court in front of the Appellant and others. The fact that counsel for the Appellant did not raise the possibility of the judge questioning K in the presence of counsel, but in the absence of the parties, by reference to questions agreed in advance, does not seem to me to be a reason why the judge should not have given consideration to such an option or other alternative options. This was a case that cried out for special measures so as to ensure that the judge received direct evidence from K in relation to the allegations, and, in particular, her retraction of them, and was not forced to rely on the very unsatisfactory secondary evidence of the social worker and the Guardian as to their interpretation of K’s evidence. In my judgment some sort of measure should have been in place to ensure that the judge heard directly from K on the fact-finding hearing.
  • As to the second consideration, in my judgment there was no adequate consideration by the judge of the impact on the Appellant’s case of the inability of his counsel to cross-examine K as to the allegations and her retraction of, or unwillingness to proceed with, them. The consequences for the Appellant, and his infant children, leaving aside his relationship with his partner, were monumentally serious if K’s allegations against him were accepted. On any basis, in my judgment, he could not have had a fair trial in circumstances where the judge was able, in effect, to rely so heavily, if not exclusively, on the ABE interviews conducted before K sought to retract, or sought not to proceed with, her allegations.
  • For the above reasons, I would have allowed the appeal against the judge’s case management decision dated 16 September 2014. In my judgment the judge failed to appreciate that the critical issue was whether or not the Appellant could have had a fair trial without the ability of challenging K’s evidence in any realistic way. In my judgment the judge failed properly to apply the guidelines set down in Re W, which reflect the paramount consideration that a party should have a fair trial.
  • I should say that, so far as the evidence of the K’s two friends are concerned, such evidence was clearly hearsay and should have been afforded very little evidential weight, since, in all the circumstances, it could have provided very little corroborative support for K’s own evidence.
  • Likewise, for the above reasons, it seems to me that the judge’s conclusions in her fact-finding judgment dated 15 October 2014 are clearly open to serious doubt. I do not see how, in the absence of up-to-date evidence directly from K herself, as to the retraction and/or reluctance to proceed with her allegations, the judge was able to conclude that she could rely so heavily on the ABE interviews, or come to the conclusion, as set out in paragraphs 38-39 of the judgment, that K’s allegations were true and that her retraction had arisen partly because of pressure from her family, but largely because of her own feeling of responsibility for breaking up her family and her own strong desire to see her nephews. The inferences which the judge drew from the documentary evidence in my judgment cannot be supported in the absence of up-to-date direct evidence from K herself.
  • I also regard the judge’s analysis of the evidence of the Appellant as inadequate. There is no, or no adequate, explanation by the judge as to why she felt able to reject his evidence that the alleged abuse never took place.
  • In my judgment the judge failed to give proper consideration to the fact that the burden of proof lay on the Local Authority. She had no basis for concluding on the balance of probabilities that K’s serious allegations against the Appellant had been proved. In the absence of any opportunity afforded to the Appellant to challenge K’s evidence that was not a conclusion which I consider she was entitled to reach. In my judgment, the Appellant did not have a fair trial in accordance with his rights under Article 6 of the ECHR and, as a result, his Article 8 rights and those of his infant sons, have been seriously infringed.
  • I would allow the appeal and set aside the findings of HHJ Moir. I would rule that no findings adverse to the Appellant in relation to the allegations of sexual abuse could properly be made on the evidence available to the judge. But since Black and Vos LJJ consider that the appeal should be dismissed, that will be the order of this court.

 

Child giving evidence

Very quick one – this is an appeal just decided, about a 14 year old girl who wished to give evidence in care proceedings. She was saying that the allegations made against her father (about sexual abuse of her younger sibling) were not true, and thus the father was not a risk to her or her sister and her mother had not failed to protect.

 

The Local Authority and the Guardian were both saying that what the girl was saying was not correct  ( This might have covered either that she just didn’t know about the abuse or that she was lying to protect her parents) but that she should not give evidence and the trial Judge had agreed with that.

 

The Court of Appeal ruled that this decision was wrong – this was a witness who had capacity, who was willing to give evidence, she had filed a statement and the contents of that evidence was being challenged and it went to a material issue. The girl should have been able to give evidence, and if her evidence in her statement was not right for that to have been tested in cross-examination.

 

(Of course a Local Authority when bringing care proceedings on a child feels uncomfortable about cross-examining that child and causing them emotional harm, and similarly the Guardian is in a tough position cross-examining a child, but in a situation like this, the child has to be able to give evidence if she wishes)

 

Re R (children) 2015

http://www.bailii.org/ew/cases/EWCA/Civ/2015/167.html

 

  1. In civil litigation the general rule is that where a party witness provides an appropriately verified written statement of her evidence, and is willing to attend for cross-examination, the court cannot be invited by other parties to disbelieve that evidence on a matter within her personal knowledge, unless it has been tested in cross-examination. This is a basic and deep-rooted aspect of the fair conduct of a trial, and reflects the central role which cross-examination plays in the ascertainment of the truth.
  2. It is therefore very unusual to find, as in the present case, a situation where the parties who do wish to challenge verified statement evidence from a party witness with the closest personal knowledge of the relevant events, seek to persuade the judge not to allow that witness to attend for the necessary cross-examination, where the witness herself positively desires to do so. Of course the motivation for this persuasion is of the very highest, namely an understandable concern for the young witness’s welfare. But for that concern, one would expect it to be common ground that there was a need for the witness to attend for cross-examination, since she denies in her evidence the very thing which the Local Authority seek to prove, namely that both she and her sister have been sexually abused by their father.
  3. To my mind it is the absence of any real recognition of the basic importance of the cross-examination of GR to a fair trial of the serious issues in this case, in the judge’s judgment or even in the respondents’ submissions on this appeal, that makes it necessary that the appeal should be allowed. I would regard the welfare implications of the choice whether to permit her to give oral evidence and to be cross-examined as being evenly balanced. The risk of harm which the process may cause to this bright and articulate fourteen year old does not seem to me to be more substantial than the risk of long-term harm at being denied the opportunity to have her evidence properly weighed in the determination by a court of matters of the utmost importance to her.