B (children) & Ors , Re [2006] EWCA Civ 773

B4/2006/0186/A, B4/2006/0186,B4/2006/0242 and B4/2006/0242/A[2006] EWCA Civ 773
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM YORK COUNTY COURT (HIS HONOUR JUDGE WOLSTENHOLME)
Venue Royal Courts of JusticeDate Thursday, 25 th May 2006
Strand
London, WC2
B E F O R E:
LORD JUSTICE LATHAM
LORD JUSTICE CARNWATH
LORD JUSTICE HUGHES
IN THE MATTER OF B (CHILDREN) and B&O (CHILDREN)
(DAR Transcript of
Smith Bernal Wordwave Limited
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MR R ANELAY QC (instructed by Messrs Crombe Wilkinson, 19 Clifford Street, York, YO1 9RJ) appeared on behalf of the Appellant Father.
MR S BELLAMY QC and MS J MATTHEWS (instructed by Messrs Harland & Co, 18 St Saviourgate,York, YO1 8NS) appeared on behalf of the Appellant.Mother.
MR C NEWTON QC (instructed by Messrs Chadwick Lawrence, 54 Bradford Road, Dewsbury, WF13 2DY) appeared on behalf of the children by their guardian ad litem.
MISS E HAMILTON QC and MR J HAYES (instructed by North Yorkshire County Council, Legal Services Department, County Hall, Northallerton, OL7 8AD) appeared on behalf of the Respondent Local Authority.
J U D G M E N T
Between
Appellant FatherAppellant

LORD JUSTICE HUGHES:

The

[1]mother and father appeal against findings of fact made by the judge in care proceedings. If they will forgive me, I shall refer to them simply as mother and father. The allegation was that father had interfered sexually with his own daughter, aged five, nearly six, and with another girl who was a friend and neighbour of hers, about a year younger. As against mother, the allegation was that she knew of father’s actions and failed to protect her daughter. The judge conducted a fact-finding hearing over the period of some 14 days, unavoidably punctuated by an adjournment of four months. He concluded that those allegations had been made out. Both father and mother challenge those findings.[2]Father and mother are 30 or just rising to that age. They are not married but they have been together as a couple for something like 12 years. They have four children. There is a girl, L, 12; two boys, T and J, who are 9 and not quite 8; and the youngest child, S, is a girl who was born on 27 May 2000. She is thus 5, rising 6, and she is the daughter about whom the judge had to determine the allegation.[3]Mother had a friend called Danielle. Danielle lived with her partner across the road. She herself had three children, of whom the middle one was a girl born on 1 August 2001, K. K was a playmate of S and they spent quite a lot of time together in each other’s houses, and K was the second girl about whom there were allegations for the judge to determine. K has a cleft palate; her speech is not easy to understand, at least for strangers. K’s elder brother J was five. There was no complaint of interference with him, but at a late stage he became the source of a further piece of evidence going to the allegation of interference with K. Another neighbour and friend, particularly of Danielle, was called Tracey. She also had children of a similar age, one of whom was a boy called T, who was five or thereabouts.[4]The complaint about father surfaced in the middle of March 2005. It began with Danielle finding S playing sexually with her own daughter, K, in the bathroom at her home. Over the next few days the anxiety generated by that discovery broadened into an allegation allegedly made by K that father had touched her. At different stages the general practitioner, the health visitor, social workers and before long the police were brought in. The police and the social workers saw all four children of mother and father, including of course S, as well as seeing K. By the end of the investigation it was the local authority case that father had interfered both with K and with S.[5]By the time the matter came before the judge in August 2005 the principal evidence which he had to consider fell into the following broad categories: 1) physical findings on medical examination of the two girls; 2) the evidence of the doctors as to the reaction of those girls to intimate physical examination and of the social worker as to the reaction of S when questioned on intimate matters; 3) incidents of sexualised play; 4) what K said(a) to her mother Danielle and her friend Tracey on Tuesday 15 and Wednesday 16 March,(b) to Tracey on 22 March,(c) to the police officer, Detective Constable Knubley on 14 April and(d) in a video taped interview conducted by the police on 19 April; 5) what S said (a) to the social worker and Detective Constable Knubley on 18 March, (b) briefly to her foster mother after a failed video interview, and (c) to the police officer on 12 April when a further video interview was attempted but failed; 6) what K’s brother J said some months after the event to his mother Danielle and subsequently to police officers in a video taped interview. There was in addition before the judge in the case of mother 7) evidence that she had twice in her own past been the object of sexual interference, once as a child and once as an adult and had been inhibited in resisting or complaining about it.[6]Lastly, of course, the judge had to consider 8) the evidence of both father and mother. Sometimes such evidence considerably weakens and on other occasions it significantly supports the other evidence. In the present case the evidence of the parents did not strengthen the case against them nor did it significantly weaken it. The judge found that they were not truthful on a number of matters. That properly informed his view of the strength of some of the evidence against them and his assessment of their denials. It was not however a case in which their untruthfulness or any other part of their evidence provided any affirmative independent evidence, either that father had abused the children or that mother knew of it, and the judge did not find that it had.[7]The focus of the appeals of both parents is the judge’s approach to the evidence of what the children said: points 4, 5 and 6 as I have enumerated them above. Both parents accepted before the judge, and accept now, that in the case of K the right conclusion was that somebody had interfered with her sexually. The same concession is not formally made in the case of S, but in this court, as distinct from below, neither parent makes any serious challenge to findings which are based upon points 1, 2 and 3 as I have enumerated them. What is contended here is that for different reasons the different sources of what the children are alleged to have said are so unreliable that the judge was plainly wrong to draw from them any conclusions of sexual abuse or at least any conclusions as to who had done it. In consequence, the argument before us is concentrated upon those sources of evidence.[8]The judge, however, had to assess the evidence as a whole. It is convenient to begin with what is, now at any rate, not in dispute. Within a few days of the suggestion that there had been abuse, both girls were examined medically. The judge had the evidence of no less than three experienced doctors. One was the original medical examiner, who alone had seen the girls. Second was a doctor extremely experienced in allegations of child abuse, instructed by the guardian, and the third, also well-experienced, was instructed by father.[9]In the light of the criticisms which we have heard of the judge’s reasoning, I should perhaps note that it is accepted here that after hearing all three doctors at considerable length, occupying many pages of transcript, the judge summarised the evidence correctly, asked himself the right questions and arrived at wholly justifiable conclusions, all of which he distilled into about a dozen paragraphs.[10]The conclusions were these: K had a healed tear in her hymen. Her anus was abnormal with irregular margins and quite deep folds together with venus congestion. Those findings were supportive of, although not conclusively diagnostic of, penetrative trauma to both vagina and anus. When she was examined she adopted the frog leg examination position, which is uncomfortable and unnatural as well as immodest, with abnormal readiness and in a most unusual way. The possibility that such compliance could be the result of medical examinations conducted for her cleft palate when she was about 12 months old was rejected; rather her behaviour suggested that she was accustomed to giving access to her vagina.[11]S had a possible healed tear to her hymen, but since the doctors were divided as to whether or not it might also be a naturally-occurring irregularity, the judge felt that it was not possible to say, on the balance of probability, that it was indeed a tear. However, she too adopted the examination position with unusual readiness and her behaviour was unusually immodest, in a way that suggested that she had been abused sexually. Independently of the doctor’s observation of that behaviour at the time of his examination, the social worker noted when this girl was seen by herself and the lady police officer that she spoke about her genital area with a most unusual lack of inhibition. That observation was quite distinct from the content of that interview, which raises different questions to which I shall have to return.[12]On Thursday 10 March S came to tea with K. Danielle found them together in the bathroom. K was lying on her back with her feet on the floor and knees parted and S was prodding and poking at her vagina. When Danielle told them off, S responded that it was all right, her brothers did it to her all the time. The position of K as described by Danielle was similar to the examination position in which the doctor later observed her to be unusually comfortable.[13]On Saturday 12 March S was again visiting Danielle’s home. Although Danielle had told the girls they were not to go upstairs and believed that they were close enough by for her to keep an eye on them, she found them in similar positions and similar activity in a corner of the sitting room. A little later that day the two girls were seen to be playing doctors and nurses, on this occasion with S pretending to saw K in half and covering K’s eyes saying that it was best that she should not see what was happening.[14]Before the judge there was a good deal of dispute about the evidence relating to these two incidents, both as to what exactly Danielle had seen on the first occasion and as to whether the second occasion had happened at all. It is, however, now accepted that although there were significant differences between Danielle and her friend Tracey as to the details and particularly as to whether or not Tracey had seen the second incident, the judge’s findings that both incidents happened in the manner that I have described is unassailable.[15]The evidence of the doctors was unanimous that this, on both occasions, was sexualised behaviour of a kind which is highly abnormal in children of this age, but often seen in those who have been sexually abused. On that evidence the judge was plainly entitled to find that not only K, but also S had been sexually abused. For completeness, he also accepted the evidence of Tracey that about ten days later on 22 March, after the official investigation had begun, there was a third episode of sexualised play which involved K, but not S. Tracey found K playing doctors and nurses with her own five-year old son, T. K lifted his shirt, played with his belly button, and a little later went upstairs and tried to undo his belt.[16]On the day following the second Saturday incident of sexualised play, K was found by her mother Danielle to have inflammation of the vagina and a discharge. So on the Monday, Danielle took K to the doctor and her friend Tracey went with her. As it happens, a training camera recorded the visit. Some time into the visit Danielle can be heard telling the doctor with some embarrassment and distress about what she had seen K and S doing on the occasion of the first incident. It was plainly because she was anxious lest that might be the cause of the inflammation. The doctor, who had advised that the inflammation had appeared to be thrush, was nevertheless alert to what this history might mean. He said that Danielle really ought to talk to the other child’s mother, that is to say the mother in this case, and the doctor offered the help of the health visitor.[17]It was the evidence of Tracey that the following day, Tuesday, when she was visiting Danielle’s home, it became apparent for the first time that K was saying that father was involved. According to Tracey, K told her that she did not like father and that he bites her and she pointed between her legs. She also told her that he had a hairy willy and that he touched her “floss”, the family word for vagina, and she showed Tracey by touching her in the appropriate place.[18]Those things did not emerge according to Tracey’s evidence all at once, nor as the result of any consecutive questioning. K had introduced father inconsequentially into the conversation, when she said that she did not like him. There were some questions about why, but the things that K subsequently said emerged bit by bit during the day.[19]These things having been said, Tracey told Danielle that they had to tell Social Services. Danielle for her part was unsure about that, but she allowed Tracey to make the call. A customer relations officer in the Social Services Department received the telephone call. As a result a social worker, Helen Smith, visited the next day, Wednesday, 16 March. Both Tracey and Danielle gave evidence that that day, and on their account while the social worker was present, K spoke of licking the father. The judge accepted the evidence of Danielle and Tracey as to these various statements made by K on the Tuesday and the Wednesday.[20]On behalf of father, the first submission of Mr Anelay QC is that the judge was plainly wrong to do so. That submission is founded on two lines of challenge. Firstly, there is no record of either woman telling either the community relations officer at the Social Services or the health visitor, or the social worker, that K had explicitly said that father touched her “floss”. It is suggested that if this had been said it is not conceivable that it would not have been in the forefront of any report.[21]The community relations officer at the Social Services Department, to whom the first call was made, recorded that Tracey told him, or her, about some of the sexualised play, about the need there had been to go to the doctor, that K had spoken of father’s willy, and that K had seemed to be wary of father a couple of weeks earlier.[22]The health visitor had had two telephone conversations with Danielle that day. In the first, which could very well have been before anything K said that day, she was told about the two incidents of sexualised play and that K had been having night terrors. In the second, she was told by Danielle that K had now said more. She was told that K had spoken of a friend touching her “floss”, which was misheard as “flat”. She was told that K had said that father had a hairy willy and that she had spoken about going upstairs in S’s, that is to say in father’s, house, although they were not supposed to do so.[23]As to the social worker, she made some notes in which she recorded that K had told Tracey that she did not like father, that he had a hairy willy, which she and S sat and looked at, and that he bites her, pointing between her legs, but she did not recall being told that K had said that father had touched her private parts.[24]The second challenge is based on this: the social worker did not agree that there had been any reference in front of her on the Wednesday to K licking father. Unsurprisingly, when asked whether if that had happened, she would have recorded or remembered it, she said that she would. She did agree with Danielle and with Tracey that Danielle had become upset at one point and had gone out of the room but not, as they said they remembered, that this was in some way around and connected with the time of the talk of licking. Mr Anelay’s argument is that such talk would have been so striking that a social worker called out to investigate a possible case of sexual abuse could not fail to note and record it.[25]The judge found that Danielle and Tracey were honest as to the substance of what K had said, but that they may well be inaccurate about when the things that they remembered were said, had been said. Mr Anelay invites us to say that he was plainly wrong so to find. That, I am satisfied, is exactly what this court can only very rarely do on a paper examination of evidence given in the court below over a period of days and assessed as a whole by a trial judge. The point has often been expressed in judgments in the House of Lords and this court. Two only of many possible citations will suffice.[26]In Benmax v Austin Motor Company Limited [1955] AC 370 at 375, Lord Reid said this:
“… the trial judge has seen and heard the witnesses, whereas the appeal court is denied that advantage and only has before it a written transcript of their evidence. No one would seek to minimise the advantage enjoyed by the trial judge in determining any question whether a witness is or is not trying to tell what he believes to be the truth, and it is only in rare cases that an appeal court could be satisfied that the trial judge has reached a wrong decision about the credibility of a witness. But the advantage of seeing and hearing a witness goes beyond that: the trial judge may be led to a conclusion about the reliability of a witness’s memory or his powers of observation by material not available to an appeal court. Evidence may read well in print but may be rightly discounted by the trial judge or, on the other hand, he may rightly attach importance to evidence which ready badly in print. Of course, the weight of the other evidence may be such as to show that the judge must have formed a wrong impression, but an appeal court is and should be slow to reverse any finding which appears to be based on any such considerations.”
[27]Secondly, in Piglowska v Piglowska [1999] 1 WLR 1360 at 1372, Lord Hoffman said this:
“First, the appellant court must bear in mind the advantage which the first instance judge had in seeing the parties and the other witnesses. This is well understood on questions of credibility and findings of primary fact. But it goes further than that. It applies also to the judge’s evaluation of those facts. If I may quote what I said in Biogen Inc v Medeva plc [1997] RPC 1: ‘The need for appellate caution in reversing the trial judge’s evaluation of the facts is based upon much more solid grounds than professional courtesy. It is because specific findings of face, even by the most meticulous judge, are inherently an incomplete statement of the impression which was made upon him by the primary evidence. His expressed findings are always surrounded by a penumbra of imprecision as to emphasis, relative weight, minor qualification and nuance … of which time and language do not permit exact expression, but which may play an important part in the judge’s overall evaluation.’ The second point follows from the first. The exigencies of daily courtroom life are such that reasons for judgment will always be capable of having been better expressed. This is particularly true of an unreserved judgment such as the judge gave in this case but also of a reserved judgment based upon notes … ”
I add only that most judges are familiar with reading the papers of a case and sensing that a particular piece of sequence of pieces of evidence appears either strong or weak, only to have the initial impression completely reversed on seeing and hearing the witnesses.[28]In the present case the two ladies were poor historians, in the sense that there were many discrepancies between them. They often appeared to conflate one experience with another and they certainly were not able accurately to remember what they had said to whom or when. As witnesses they were equally confused about the incidents of sexual play, as to which the judge’s conclusions are now rightly accepted as unassailable. But all of this is only to be expected. Whilst some people are gifted with the power of consecutive and orderly narration, a great many are not. Many tell their experiences in a confused and unchronological manner. They put in things which they ought to leave out, and they leave out things which ought to go in. That is especially likely to be so when they are suddenly and unexpectedly caught up in an official investigation into something which is very worrying, such as the apparent sexual abuse of a child, whether their own or of a friend.[29]The business of sorting out how far, despite these imperfections, their evidence can be relied upon is peculiarly for the judge who sees them and hears them examined and cross- examined and who has the whole of the evidence before him. In this case the judge had heard these two witnesses not once but twice and at length, once in August and once in January. They were fairly but rigorously challenged. He might have decided that he could not be satisfied on the balance of probabilities that K’s statements about father were made, but he was equally entitled to conclude that they had been, albeit probably not at the times that Danielle and Tracey now thought.[30]There was plenty of material justifying the conclusion that there were new and deeply worrying statements from K about father on the Tuesday. At the time of the visit to the doctor on the Monday, although the ladies were anxious about K, it was clear that they had no inkling at all that anyone might be involved beyond S’s infant brothers, and whilst they were reporting what had happened they wondered if they were reading too much into it. Suddenly on Tuesday, both in Tracey’s call to Social Services and in Danielle’s second telephone conversation with the health visitor, it is said that father had been implicated by K.[31]The judge was entitled to accept the evidence of Danielle that this revelation came from K via Tracey, and threw her into intense shock and distress. By Thursday 17 March, by exactly what route is unclear, the records of the police did show that the statement that father had touched K sexually had been reported to them. I am quite satisfied that it is not possible for this court to say that the judge was plainly wrong to find as he did.[32]For the same reasons the judge was entitled to find, as he did, that on the occasion of the third incident of sexualised play by K, on 22 March, she told Tracey that father “puts his willy in my bum”. That in any event was reported the following day by Tracey. In finding in due course that this had happened, the judge was entitled to rely on that evidence. I am unable to see any danger that he had forgotten that the medical evidence could, by itself, go no further than some penetration or attempt at it, nor that there had been a limited difference of opinion, or at least of emphasis, between Dr Ball and Dr Ward as to whether the physical findings by themselves warranted a conclusion that the object was of penis size or only of finger size.[33]There is a different challenge to the evidence of what both K and, more importantly, S said to the police officer. On Friday 18 March, after telling mother and father of their intentions Detective Constable Knubley and the social worker, Helen Smith, went to the school to see all four of their children. Nothing relevant and no complaint emerged from the conversations with the elder children.[34]From the conversation with S, something did. This interview, for that is what it undoubtedly was, may have started with the intention of making a preliminary assessment whether there was any purpose in conducting a formal video-recorded interview. If that was the intention, Detective Constable Knubley wholly failed to understand or to apply elementary principles of evidence gathering from small children. Painful past experience has taught that the greatest care needs to be taken if the risk of obtaining unreliable evidence is to be minimised. Children are often poor historians. They are likely to view interviewers as authority figures. Many are suggestible. Many more wish to please. They do not express themselves clearly or in adult terms, so that what they say can easily be misinterpreted if the listeners are not scrupulous to avoid jumping to conclusions. They may not have understood what was said or done to them or in their presence.[35]For these and many other reasons it is of the first importance that the child be given the maximum possible opportunity to recall freely, uninhibited by questions, what they are able to say, and equally it is vital that a careful note is taken of what they say and also of any questions which are asked. All this and many other similar propositions, most of them of simple common sense, are set out in nationally agreed guidelines entitled “Achieving Best Evidence” (“ABE”).[36]Detective Constable Knubley professed to be aware of these guidelines. If she was, she wholly failed to follow them. The social worker seems to have been unaware of their content. Between them they conducted an interview with S which lasted 25 minutes. A note was taken by the social worker but she noted only what S said, much of the time in reported speech rather than in her own words. Except for one, she noted no questions. That deprived the judge of a proper opportunity of making a fully informed evaluation of whether or not S’s words were to any extent conditioned by questions asked. The predictable result was that when it came to be queried some months later, there ensued a fundamental disagreement between the two professionals as to what questions there had been. Detective Constable Knubley gave evidence that she had asked but five or six principally neutral questions. Helen Smith offered it as her opinion that a great many more, several leading, had been asked. She seems to have proceeded some time after the event by attempting to reconstruct the questions from the answers that she had noted at the time, which is perhaps not an obviously reliable means of proceeding.[37]None of this should have happened. In the case of S, unlike her siblings, there was clear reason to think that she might well have something to say and certainly there might be questions which needed to be asked of her. It would have been much more sensible to record all conversations with her. To proceed without recording was to court the risk that what would happen was what did; that is to say that S would produce information, that it would be undesirable to stop her, but that the professionals were not ready to deal with it. If there was to be any possibility of such an unrecorded discussion ensuing, the absolute irreducible minimum was that a full note be taken of questions as well as answers. There were also other lesser, but important, respects in which this discussion failed to comply with the ABE guidelines. There was, for example, no truth and lies discussion.[38]According to the interviewers, S was chatty and forthcoming. They said that she told them that her father touched her on her belly, under her arms, on her neck, knee, toe, hands and feet. No attempt was made at that stage to explore the circumstances; no criticism about that. Plainly some touching could be perfectly innocuous, and in due course the parents were to suggest that there was a family game of cold hands on the stomach. However, S added that when playing with K she had been touching her belly playing doctors and nurses. She pointed, as the judge found, to her private parts. She was asked, according to the contemporaneous note, whether she knew what they were called. She said “the fanny”. She went on to say that she could play with it, that she and K had played with each other’s, that her father had told her about it, that he checked her fanny and had touched her down there and was always touching her belly and fanny, and she said that he had touched K, too. She then said this in the terms of the note itself:
“This happens upstairs and mummy is downstairs watching television. Mummy came upstairs and watched and told daddy to stop. He was touching her other bit, not her belly. This makes her feel poorly. She has not told anyone, only mummy knows.”
S added that she wanted daddy to stop touching her.[39]Three days later when a formal video recorded interview was attempted, S did not repeat what she had said, although she was reminded of some of it. Her foster mother gave evidence that afterwards she came for comfort and said words to the effect that she had a secret and that something had happened to her but she was frightened to say. A second attempt at a recorded interview some weeks later produced no more than a further reference to a secret.[40]There was no question of this evidence being inadmissible for failure to comply with the ABE guidelines, and that has not been suggested in argument for either parent. In a family case evidence of this kind falls to be assessed, however unsatisfactory its origin. To hold otherwise would be to invest the guidelines with the status of the law of evidence and it would invite that question: which failures have the consequence of inadmissibility? Clearly some failures to follow the guidelines will reduce but by no means eliminate the value of the evidence. Some may be purely technical and have no impact at all on value. Others may reduce the value almost to vanishing point.[41]The question for us in this case is whether the judge was compelled to the conclusion that he must disregard this evidence altogether. Mr Anelay submits that the failures here were so wholesale that that must be the consequence, on the basis that otherwise there is no point in having the guidelines.[42]With that submission I do not agree. The purpose of the guidelines is not disciplinary; it is to present the court and for that matter the parents with the most reliable evidence which can be obtained. In every case the judge cannot avoid the task of weighing up the evidence, warts and all, and deciding whether or not it has any value or none. Everything will depend on the facts of the case. The exercise has perhaps something in common with the one which judges are used to carrying out when confronted with hearsay evidence, often in a family case third or fourth-hand hearsay.[43]On the other hand, I agree with Mr Anelay that the fact that one is in a family case sailing under the comforting colours of child protection is not a reason to afford to unsatisfactory evidence a weight greater than it can properly bear. That is in nobody’s interests, least of all the child’s.[44]It is clear to me that the judge was fully aware of the deficiencies of this evidence. They had been very extensively canvassed in front of him. He expressed himself in understated terms, but he reminded himself of the ABE guidelines and in particular those relating to an initial contact interview. As he reminded himself explicitly, the guidelines were not followed. He held that this was in effect an interview without the proper safeguards of video recording. He said that the failure to record the questions had made the task of evaluating the child’s statement a difficult one.[45]That was the right approach. The judge then analysed what S had said over two of three pages of his judgment. In my view, he was entitled to reach his overall conclusion that S had been abused and by her father, by the combination of this evidence with the evidence which was independent of it; that is to say, the independent evidence that she had been abused by someone, the evidence that her friend K had been abused also, and that K had attributed it to father, and the evidence of their joint sexualised play. What was said in interview was consistent with that evidence. It was not likely that S, having been abused by someone at the age of five, should have been abused by someone other than the father who abused her friend K, but should nevertheless say that it was him.[46]In the case of K the deficiencies in the evidence of what she said were very much less significant. Detective Constable Knubley gave evidence that when visiting the home on 14 April, and with an upcoming formal recorded interview in mind, she was told by K in brief conversation that father had touched her, and K then pointed to her private parts. The detective constable understood K to say the word “bum”, but her speech defect raises the question here, as before, whether that word was correctly heard. That evidence was certainly less than wholly satisfactory; the note had been made late and the constable was not able satisfactorily to say how the conversation had come about. That was for the judge to resolve. He heard this detective constable over no little time. He was entitled to conclude, whatever criticisms there were of the conduct of the interview with S, that on this issue she was right.[47]In any event there followed a formally recorded interview with K. Present was a speech and language therapist, also trained as a child intermediary, Alison Drake. She was subsequently asked to listen several times more to the recording, and she produced a fuller transcript than was then available of what K had said. The tape was examined also by a speech and language specialist instructed independently for the father, and in the end the differences between the two specialists were relatively marginal. The judge heard both of them and at some length and accepted the evidence of Alison Drake.[48]On the evidence of both experts, K implicated father. K said plainly that father, whom she named and identified as S’s father, had touched her “floss”, correcting the word “bum” when what she said was misheard and pointing to her private parts. She said that father was naughty, again correcting a mishearing. She said that he put his hands over her eyes.[49]It is right to say that at the outset of this interview the usual attempt to establish the difference between truth and lies failed, because K was distracted and would not pay attention. That is exactly the kind of feature which it falls to the judge to consider when evaluating the evidence. He had to balance it against the interview as a whole and against the evidence that K appeared positive in manner, and certainly she was not suggestible but rather corrected the adults when they appeared to have misheard her. That exercise he carried out, and there are no grounds for interfering with his conclusion that what K said about father could be relied upon, particularly bearing in mind what she had said before with Danielle and Tracey.[50]Just before the first stage of the hearing opened, Danielle told the detective constable that her elder son J, then aged five and a half, had very recently told her of seeing father sitting in his own house with K on his knee and touching her vagina. During the time when the hearing stood adjourned, part heard, a recorded interview was conducted with J, in which he said the same.[51]At the resumed hearing, one of the suggestions made on behalf of father was that Danielle had maliciously put J up to making a false statement. The judge had to resolve that, as he did other allegations of malice made by father against Danielle. He was satisfied that Danielle had not put J up to it. There is no suggestion here that that was not a decision that he had to make or that his conclusion can be upset.[52]Quite apart from whether his mother had coached him, however, there were several reasons for doubting the reliability of this evidence from J. It came very late indeed. It came at a time when there would have been, over months, much discussion in his household which he could easily have overheard and which easily could have led to him saying that he had seen something he had not. What he said he saw had the inherent improbability of open interference of the girl in front of him. He was not consistent in saying whether there was anyone else present or not. It was not easy to see when whatever he spoke about could have occurred. He said it was at a time when he knew that K was not supposed to be playing doctors and nurses, but the other evidence tended to suggest that after that game had been stopped, K did not visit father’s house. There may also have been some improbability in his recollection that summer clothes were being worn.[53]The judge reminded himself of the difficulties about J’s evidence, particularly the risk of contamination. The only finding that he made was that Danielle had not maliciously brought it about. The way in which the judge expressed his final brief summary of his conclusions suggests that this evidence did not weigh significantly with him. There was, apart from J’s evidence, more than sufficient to support the judge’s conclusion that K had been interfered with by father.[54]For all these reasons, the judge’s conclusions as to father were justified by the evidence which he had before him. It is not open to this court to attempt to re-evaluate the evidence on paper without seeing the witnesses.[55]In the case of mother, however, it is plain that the only evidence of knowledge of what father was doing, and thus of a failure to protect, came from the short passage in the flawed interview with S, which I have previously quoted at paragraph 29. Although there was evidence about her own experiences which could perhaps support the suggestion that her capacity to protect was weak, that evidence could not go to prove that she knew of any abuse by father and it is not suggested that it could. So the case in respect of her stood or fell on the flawed interview with S. There was no external evidence, as there was in the case of father.[56]This allegation apart, the evidence as to mother was that no cause for concern in her parenting had surfaced. In those circumstances, the flawed manner in which that interview was conducted meant, as it seems to me, that it was quite unsafe to rely upon it as alone justifying the serious, and relatively unlikely, conclusion that a mother would watch her daughter’s father interfere with the child, and do no more than tell him to stop. It cannot be known what questions were asked or what influence they may have had. What S briefly spoke about was not explored. In particular, it was never explored exactly what mother was said to have seen.[57]The judge did not fall into error in considering the evidence of this interview, but he did in finding it sufficient alone to warrant the finding against mother. It simply could not bear that weight.[58]For these reasons I would allow the appeal of mother but dismiss the appeal of father.

LORD JUSTICE LATHAM: I agree.

LORD JUSTICE CARNWATH: I also agree.

Order

Appeal dismissed for Father. Appeal allowed for Mother.

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