SR (A Child), Re [2018] EWCA Civ 2738

Case No B4/2018/1909

[2018] EWCA Civ 2738

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE FAMILY COURT AT PETERBOROUGH

HH Judge Gordon-Saker

PE17C01234

Venue Royal Courts of Justice, Strand, London, WC2A 2LL

Date 6 December 2018

Before

LORD JUSTICE DAVID RICHARDS

LORD JUSTICE HENDERSON

LORD JUSTICE BAKER

Between

DRAppellant

CAMBRIDGESHIRE COUNTY COUNCIL (1)Respondent

RK (2)Respondent

SR (by his children’s guardian) (3)Respondent

IN THE MATTER OF THE CHILDREN ACT 1989

AND IN THE MATTER OF SR (A CHILD)

Rachel Langdale QC and Justin Slater (instructed by Dodds Solicitors LLP) for Appellant

Shabnam Walji (instructed by Local Authority Solicitor) for First Respondent

The Second and Third Respondents were neither present nor represented on the appeal

Hearing Hearing date: 6 November 2018

Judgment

LORD JUSTICE BAKER :

[1]This is an appeal by the father of a boy, now aged 7, against a finding made in care proceedings that he sexually abused his son.

Background

[2]S was born in August 2011. His parents were never married but his father has parental responsibility by virtue of being named on his birth certificate. After they separated some years ago, S lived with his mother but had contact with his father, including staying contact, in accordance with court orders made in private law proceedings under the Children Act 1989. Meanwhile, the mother entered into a relationship with another man, J, in the course of which she suffered violence and abuse. In 2017, that relationship came to an end and the mother and S moved away. Subsequently, however, the mother decided to return to live with J. At that point, the local authority, who had been involved with the family, decided to start care proceedings, on the grounds that S would be likely to suffer significant harm by being exposed to further domestic violence. An interim care order was made under which S was removed from his mother’s care and placed in foster care.

[3]In the course of its investigations, the local authority was informed by S’s foster carer that he had made comments which indicated that he might have been sexually abused by his father. This report set in train a process of investigation which lies at the heart of this appeal, the details of which are considered below.

[4]After various case management hearings, the proceedings were listed for a fact-finding hearing in July 2018 before HH Judge Gordon-Saker. In compliance with the court’s direction, the local authority drafted a schedule of findings which it invited the court to make in support of its assertion that the threshold criteria under s.31(2) for making an order under Part IV of the Children Act were satisfied. Most of the findings sought were directed at the mother. It was asserted that she was proposing to return to live with J notwithstanding the history of domestic violence; that as a result, S would be exposed to the risk of physical and emotional harm; that S had suffered neglect in the mother’s care; that he had not attended school; and that the mother’s ability to meet S’s needs had been affected by her mental health. In addition, however, the schedule also included a section alleging that S had been sexually assaulted by his father.

[5]After further negotiations between the parties on the first day of the hearing, agreement was reached on all aspects of the schedule, save for the section containing the allegations of sexual abuse, which were disputed by the father. It was accepted by the parents that the threshold under s.31 was crossed on the basis of the agreed findings. Nevertheless, the local authority continued to seek findings against the father on the sexual abuse allegations, and the judge therefore proceeded to conduct a hearing to consider those allegations. She heard oral evidence from S’s foster carer, to whom it was alleged S had first made allegations against his father; from one of the social workers, H, and from both parents. At the conclusion of the evidence, and having heard submissions, she delivered a judgment in which she found the contested allegations proved and made a further case management order in preparation for a further hearing to determine the appropriate orders to make for S’s welfare. She refused the father permission to appeal.

[6]On 10 August 2018, the father filed notice of appeal to this court against the findings. On 18 September, Peter Jackson LJ granted permission to appeal, observing that it was at least arguable that the evidence available to the judge was insufficient to justify a safe finding of sexually-motivated abuse.

The allegations and the evidence of sexual abuse

[7]The relevant section in the schedule of findings stated as follows:

“7. The father has sexually assaulted S. (a) He has moved his hand backwards and forwards over S’s penis. (b) He has kissed S’s penis. (c) He has bitten S’s penis. (d) He has said he loves and wants to eat S’s penis/testicles.”

The father accepted allegation 7(d), asserting that this was a common and acceptable thing to say within his culture, and did not amount to sexual abuse. He denied all other allegations. (a) He has moved his hand backwards and forwards over S’s penis. (b) He has kissed S’s penis. (c) He has bitten S’s penis. (d) He has said he loves and wants to eat S’s penis/testicles.”

[8]The written evidence concerning the allegations put before the judge was as follows.

[9]On 27 November 2017, after he had been in foster care for over three weeks, S had a conversation with his foster carer which she recorded that evening in a notebook. On the previous evening, she had told S that he would be having a medical appointment the following day and that he would have to get undressed. S had said that he didn’t want to get undressed. At breakfast on the following morning, he said:

“I don’t wanna take my pants off at the doctors.”

The foster carer had tried to reassure him, whereupon S said:

“I don’t want he touch, it make me angry … Daddy touch my willy”

. The foster carer asked:

“would you like to tell me about that?”

S replied:

“he kiss it, he bite it, I don’t like.”

The foster carer’s note continued:

“I told S that it was good that he had told me this, he hadn’t done anything wrong, nobody should touch his private parts like that so it was good that he had told me about it, I told him that I would have to tell C [the social worker] what he had told me …. I explained that if he had a poorly or a sore winky and he needed to show me or Mummy it, it was okay for us to take a look to see if we could make it better. S said he had had a really sore willy before, it got sore when he went down down down fast and it really hurt and it hurt in a fast car too. S then said that he touched me like that … he demonstrated this by touching the underside of the worktop in the kitchen with the tips of his fingers on his outstretched hand with his palm facing upwards.”

[10]The foster carer’s note continues with a brief description of what happened during the doctor’s appointment, reporting that S repeatedly said that he did not want to take his pants off. Later that afternoon, S returned to the subject. The note continues:

“… after a while he asked, why is it bad people touch private parts, I explained that it was okay if he has a poorly [sic] for the doctor but other touches were not good, he said so not good that my Dad likes to eat my willy, I said No, that was wrong, that was naughty, nobody should touch your winky in that way. Reassured again that he had not been naughty, just the adult, it was good that he had told me.”

[11]The foster carer informed C about what S had said. C reported the matter to the police in an email, describing it as a “disclosure”. On the following day, 28 November, C visited S at school. The note of her visit produced to the judge records that, after an initial chat about other matters, the conversation continued as follows:

“C: Can you tell me about daddy? S: Daddy says he likes to eat my willy, Daddy says he loves my willy. C: What happened next? S makes a fist with his hands and puts it to his willy (over his trousers) then starts making a fast back and forth motion with his hand. S: It makes me feel sore. C: Did you tell Daddy it felt sore? S: No I didn’t tell him. C: What did Daddy say? S: I love your willy, I want to eat your willy. C: Did he eat your willy? S shakes head. C: When Daddy touched your willy, where were you? S: At Daddy’s house. C: Was anyone else there? S: No just Daddy. C: Can you remember when it happened? S: A long time ago. The social worker’s note continues by recording that S “dropped to the floor on all fours and pretended to be a dog, he crawled around the room on all fours making very loud yelping noises and panting like a dog.”

He then made some comments about the mother’s boyfriend, J. C: What happened next? C: Did you tell Daddy it felt sore? C: What did Daddy say? C: Did he eat your willy? C: When Daddy touched your willy, where were you? C: Was anyone else there?

C: Can you remember when it happened?

[12]The foster carer also made a note about events on 28 November. She recorded that she had told S’s schoolteacher to expect a visit from his social worker “as S had made a disclosure to me the previous evening”. When she met S after school, he told her that C and a policeman had come to see him. (In fact, there was no other evidence that a police officer had visited him at school that day.) The foster carer’s note continues by recording S saying that J was a bad man, that the social worker and police officer had said that he was in trouble for being bad to his mum, and that he had told them all about it. The foster carer recorded that she "gave him a squeeze and acknowledged that he had had a tough day”.

[13]On 6 December 2017, the father was interviewed by the police about this matter. The evidence before the judge about the interview consisted of a summary contained in a police computer log, which included the following passage:

“D [the father] was then made aware of the actual allegation that S has said that he has touched his willy. D said that of course he touches his willy as he is his father and he has to give him a shower. D was asked … was there any other time when he would have touched his penis and he said no. D was also told that S had alleged that he had kissed his penis and that he didn’t like it. D denied that this had ever happened. D said that traditionally they use something as Kurds that they say to their children, ‘let me eat your penis/willies’. They say that to the boys or they say ‘I eat yours’. D was asked in what context this is said. He said it was when you cuddle or hug or are really happy together that you say it to that person. When asked what it meant, D said it was a joke. I said to D that for someone not from his culture it would sound like a very odd thing to say and he agreed. When D was asked where this had come from, he said that it was just very normal on the streets and has been around forever. When asked if someone else from his country was spoken to about this they could confirm, D said that 90% of people from his culture would know this. He also confirmed that this is said with children that you know. He also confirmed that it is only male children. When asked if there was anything with the same context said to female children, D confirmed that you would stop saying this to children around the age of eight years, before puberty … D … confirmed that he didn’t bite his son’s penis but that he had said about eating his son’s penis but that it was said as a joke and it is part of his culture.”

[14]On 8 December, the foster carer recorded in her notebook that S had told her that morning that he had told his mother at contact that his dad liked to touch his willy. The note added that S had met the guardian that evening, that he had been “chatty and answered her questions well” and had dictated a letter to the judge and put his name at the bottom. The contents of that letter are set out in the judgment. Most of the letter is about S’s mother, and about his plans for Christmas, but the last sentence stated: “my dad touched my private parts”.

[15]On 16 January 2018, the police officer in the case spoke to an imam at a mosque in Leicester and recounted the father’s explanation that it is customary in Kurdish culture to speak to small boys about eating their penises. The imam said that he was aware that it is known that men within the Kurdish community may speak to small boys about eating their testicles, although not their penises.

[16]Following this conversation, the police officer decided to visit S (described in the police log as “the victim”). In his police log, he stated that it was his intention to “carry out a Q and A session with him in the hope of clarifying some of the things that he disclosed to the social worker. Once I’ve done this I will be in a better position to determine if an offence has occurred or if this is a cultural tradition which may have been taken the wrong way.”

[17]In fact, it was not until 21 February 2018 – five weeks after the officer’s conversation with the imam and twelve weeks after S’s initial conversation with his foster carer – that the officer undertook the “Q and A session” with the boy. The conversation was recorded on an audiotape but not on video. The recording was made available to the judge at the hearing, although no party has invited us to listen to it for the purposes of the appeal. A record summarising the conversation appears in the police log. It shows that the officer asked some preliminary questions about S’s life in the foster home, and about his mother, after which the note continues as follows:

“S was then asked to tell me about his dad to which he said that his dad touched his winky. When asked when he had done this, S said that it was a thousand, thousand, thousand years ago. He also said it happened a long time ago.”

S identified the city in which the incident had occurred and said that it took place at his father’s house. (This court was told that the father does not have a house in that city.) The note continues:

“S was then asked when his dad had touched his willy if he had clothes on or no clothes on to which he said no clothes on. When asked why he didn’t have any clothes on, S said that his dad didn’t let him have his clothes. When S was asked how had dad had touched his willy, S moved his open hand over where his willy was and moved it backwards and forwards as if tipping it with his fingers. S said that he couldn’t remember if his dad had said anything at the time. He also confirmed that his dad had only done it once. S was asked if he had told anyone that his dad had done anything to him to which he said that he had told [his foster carer], C and another police officer. He said he told three people. S was then asked how he felt when his dad had touched his willy and he said that he laughed. When asked why he laughed, S said that it was funny. S said that playing with it had made it funny. When asked if his dad had played with it for a short time or a really long time, S said a short time. S wasn’t able to remember what happened afterwards. The best thing about S’s dad he said was that he bought him toys and that he wanted him to get a million, million, million pounds and dollars, in America. S said the worst thing about his dad was that he touched his willy.”

[18]Following this conversation, the police decided to take no further action over the matter.

[19]On 22 May 2018, three months after the “Q and A session” with the police officer, while the foster carer was talking to S about arrangements for contact with his father, S told her that he was “a bit scared”. When asked why, S said “Daddy hurt me”. The foster care asked whether he would like to talk about that, to which S replied “he shook my willy and made it go bigger”. The foster carer asked “why it go bigger” and S said “he put it to his mouth”.

[20]On 30 May 2018, another social worker, H, had a conversation with S, in the course of which she told him that she wanted to talk about bodies. Her note continues:

“S said that there are private parts and other parts. He said that his dad touched his private parts. With gentle questions, he said that this happened when he was five years old and it made him feel sad.”

The social worker proceeded to talk to S about what happens if anyone touches our private parts or does something that we do not like to our bodies. She also talked about secrets. Later in the conversation, S said that he didn’t want to see his father, adding “maybe I don’t want him to touch my private parts”.

[21]In the care proceedings, permission was given to the parties to obtain an expert’s report on a number of issues concerning Kurdish culture. Amongst the questions on which the expert was asked to comment was whether it is the norm or culturally acceptable for a parent or other close relative to use the phrase “I want to eat your penis” to an infant or child of five or older. On this point, the expert provided the following opinion:

“Child rearing practices in Kurdish society involve a great deal of physical affection between parents and children. The parents and their close kin hug, cuddle, and kiss all over a baby’s body, except for the orifices of the mouth and anogenital region. Some parents also kiss and touch [a] young boy’s penis gently or just say ‘I want to eat your penis’. Parents stop such behaviour … when the child reaches a certain age, usually before age 5. However, this can vary from one family to another. While such behaviour in other cultures might be misconstrued as erotic and sexual and the parents suspected of child sexual abuse, in Kurdish culture such behaviour is not considered erotic at all. By kissing a boy’s penis, the parents grant it an innate supremacy over the vagina and hence reinforce men’s superiority over women. In other words, some parents kiss and touch a baby boy’s penis as they view it as a symbol of power, as something which secures him a privileged place in the patriarchal structure of Kurdish society.”

[22]In a statement filed in the proceedings, the father repeated what he had said to the police, that he had never touched S’s penis except when washing him, and that he had made the comment “I want to eat your penis” in accordance with cultural custom. He said he was concerned that S’s mother may have influenced the child to make the allegations against him. He added, however, that he was willing to engage with preventative sexual offenders work as proposed by the local authority. The judge’s reasons

[23]Having identified the issues, the judge referred briefly to certain legal principles, including the summary of the law applicable to fact-finding hearings in family proceedings set out in my judgment in Re JS

[2012] EWHC 1370 (Fam)

. She said that she had been provided by the father’s counsel with submissions on the law and a copy of the judgment of MacDonald J in AS v TH

[2016] EWHC 532 (Fam)

. She added that she had referred the advocates and social workers to that judgment, to the Report of the Inquiry into Child Abuse in Cleveland 1987, and to “the Guidelines on ABE interviews”, that is to say the guidance set out in “Achieving Best Evidence in Criminal Proceedings – Guidance on interviewing victims and witnesses, and guidance on using special measures”, published by the Ministry of Justice and other departments in March 2011 (hereafter referred to as “the ABE guidance”).

[24]The judge then set out the written evidence put before her in chronological order as I have done in the preceding paragraphs but in greater detail. When she reached the conversation between the police officer and S on 21 February 2018, (at paragraphs 30 and 31 of her judgment), the judge made the following observations:

“30. Moving on … S was spoken to by the same police officer on the 21 February. We have an audio recording of that. I have listened to it more than once and I have a note of it in summary. I should say that I take into account the submissions made to me by father’s counsel, particularly in relation to the comments by MacDonald J in AS v TH, and I have also been referred to the cases cited at p.555 of the 2018 Red Book. This was not an ABE interview, they did not follow the proper procedure for an ABE interview, and I take all of that into account. It was not a flawed ABE interview, it was a different sort of interview and it’s not clear to me or to anyone else why there never was an ABE interview. 31. So, setting in its context of a chat between a police officer and a little boy and it is recorded, I give it slightly different weight to the weight I would give if it was a proper ABE interview with all the right introductions, following the right procedure through, and properly filmed and recorded. On the other hand, having heard it, I have an articulate little boy, able to answer questions, able not to agree to matters put to him, seemingly understanding the difference between truth and lies, and giving factually accurate information about non-sexual matters, and then when dealing with such matters he was able to demonstrate it. The fact that he laughed at the time doesn’t assist me a great deal because of course at that time he would not necessarily have known what was wrong.”

[25]Turning to the oral evidence, the judge summarised the testimony of the foster carer, whom she described as “a calm and thoughtful witness”. The judge said that she could not see anything in the foster carer’s logs or her treatment of S to suggest that she was encouraging him to make allegations, or view his father as any kind of threat, as had been suggested in cross examination. The first social worker, C, did not give evidence at the hearing, but the judge considered the evidence of H, the second social worker. She noted that H had described S as being immature in other aspects of his presentation, which was why his allegations were “more pertinent”, adding that “he shows a level of focus and verbal clarity which he doesn’t otherwise show”. The judge said that she found H’s evidence helpful in putting the allegations in context, and that what S had said to H in May 2018 was what he had said in November 2017 and he was therefore being consistent. The judge commented that there has been no explanation for his level of knowledge and no apparent reason why he would make allegations so specifically about his father. She added:

“I do have to consider how … an immature six-year-old child was able to provide the level of detail about something which would usually be outside his knowledge.”

[26]The judge considered the father’s evidence. She rejected the suggestion that the mother had influenced S to make the allegations. She considered the evidence from the cultural expert but concluded that S’s allegation went further than repeating words said to him, observing “he is describing conduct going beyond that”. The judge also observed that the expert evidence, and the accounts given by the father, did not explain how S “had the knowledge to give the demonstrations that he did which appear to be a form of masturbation”. She noted that, in the middle of the allegations, S had said things which were undoubtedly true, and observed that “it would require a great deal of sophistication on the part of this child to have woven other matters that were not accurate into stories about matters that were accurate”. She gave as a particular example S’s statement to his foster carer on 22 May 2018, about how his father had shaken his penis and made it “go bigger” and “put it to his mouth”, observing:

“It seems to me that he is describing something that he has actually experienced rather than something that he has been told to say. He could give a clear description of it.”

[27]In conclusion, the judge accepted the submissions that there had not been an ABE interview, but added that S had been asked open questions and had given the descriptions set out in the written evidence. She repeated that what S had described went beyond what might be acceptable to a little boy in Kurdish culture. She concluded:

“My view is that S was describing events that had actually happened to him. He was giving a clear description. He was able to demonstrate what had happened and he was describing something he had actually experienced in his father’s care. When it came to the contact being face-to-face in the May, he repeated the allegations then to make it very plain why he did not wish to see his father. When I take the context of S as an honest articulate little boy and the description he has given, I reach the conclusion that the local authority … have made out their case in relation to paragraph 7 of this document …. In my judgment from the descriptions of the experiences of S this did amount to a sexual assault by his father.”

The grounds of appeal

[28]The notice of appeal set out four grounds which, in summary, were as follows.(1) The judge was wrong in law not to give any or any proper consideration to the deficiencies and inconsistencies in the child’s evidence, choosing instead to select for her judgment those elements which suggested wrongdoing by the father and supported the schedule. In particular, the father relies on the fact that there was no compliance with the ABE guidance.

(2) The judgment failed to consider the father’s case that S may have become confused or may have been misunderstood by adults.

(3) The judge failed to consider the possibility that S was describing non-sexualised culturally appropriate behaviour.

(4) The judge failed to weigh in the balance the impression she formed of the father in oral evidence.

The ABE guidance

[29]In oral submissions on behalf of the appellant father, Miss Rachel Langdale QC, who did not appear in the court below, understandably focused attention on the fact that the process by which evidence had been obtained in this investigation did not comply with the ABE guidance. It is recognised that the application of the guidance is not confined to criminal investigations and proceedings but extends also to proceedings in the family court.

[30]The importance of adhering to the guidance has been recognised repeatedly by this court – see for example Re B (Allegation of Sexual Abuse: Child’s Evidence)

[2006] EWCA Civ 773

[2006] 2 FLR 1071

, TW v A City Council

, Re W, Re F

, and Re E (A Child)

. Those four cases all concerned investigations in which interviews had been conducted in ways that purported to comply with the guidance but which, in various respects, manifestly failed to do so. The principles underpinning the guidance are, however, relevant to all investigations which include interviews of alleged victims of abuse, whether or not the interviews purport to have been conducted under the guidance.

[31]The status of the guidance is described in paragraph 1.1:

“This document describes good practice in interviewing victims and witnesses, and in preparing them to give their best evidence in court. While it is advisory and does not constitute a legally enforceable code of conduct, practitioners should bear in mind that significant departures from the good practice advocated in it may have to be justified in the courts.”

The scope of the guidance is described in paragraph 1.3:

“This document considers preparing and planning for interviews with witnesses, decisions about whether or not to conduct an interview, and decisions about whether the interview should be video-recorded or whether it would be more appropriate for a written statement to be taken following the interview. It covers the interviewing of witnesses both for the purposes of making a video-recorded statement and also for taking a written statement, their preparation for court and the subsequent court appearance.”

[32]Paragraphs 1.26 and 1.27 set out the importance of recording interviews on video. Paragraph 1.26 provides:

“Interviews with significant witnesses should usually be video-recorded because they are likely to: • Increase the amount and quality of information gained from the witness; and • Increase the amount of information reported by the witness being recorded.”

Paragraph 1.27 adds:

“Video-recorded interviews with significant witnesses can also have the additional benefits of: • Safeguarding the integrity of the interviewer and the interview process; and • Increasing the opportunities for monitoring and for the development of interview skills.” • Increase the amount and quality of information gained from the witness; and • Increase the amount of information reported by the witness being recorded.” • Safeguarding the integrity of the interviewer and the interview process; and • Increasing the opportunities for monitoring and for the development of interview skills.”

[33]Chapter 2 covers “Planning and Preparation”. Paragraph 2.1 stresses the importance of planning, stating:

“A well-conducted interview will only occur if appropriate planning has taken place. The importance of planning cannot be overstated.”

Paragraph 2.5 provides, inter alia:

“Any initial questioning should be intended to elicit a brief account of what is alleged to have taken place; a more detailed account should not be pursued at this stage but should be left until the formal interview takes place.”

Paragraph 2.6 gives more guidance on initial conversations:

“… any early discussions with the witness should, as far as possible, adhere to the following basic principles: a) Listen to the witness b) Do not stop a witness who is freely recalling significant events c) Where it is necessary to ask questions, they should, as far as possible in the circumstances, be open-ended or specific-closed rather than forced-choice, leading or multiple d) Ask no more questions than are necessary in the circumstances to take immediate action e) Make a comprehensive note of the discussion, taking care to record the timing, setting and people present as well as what was said by the witness and anybody else present (particularly the actual questions asked of the witness) f) Make a note of the demeanour of the witness and anything else that might be relevant to any subsequent formal interview or the wider investigation g) Fully record any comments made by the witness or events that might be relevant to the legal process up to the time of the interview.” a) Listen to the witness b) Do not stop a witness who is freely recalling significant events c) Where it is necessary to ask questions, they should, as far as possible in the circumstances, be open-ended or specific-closed rather than forced-choice, leading or multiple d) Ask no more questions than are necessary in the circumstances to take immediate action e) Make a comprehensive note of the discussion, taking care to record the timing, setting and people present as well as what was said by the witness and anybody else present (particularly the actual questions asked of the witness) f) Make a note of the demeanour of the witness and anything else that might be relevant to any subsequent formal interview or the wider investigation g) Fully record any comments made by the witness or events that might be relevant to the legal process up to the time of the interview.”

[34]It is Chapter 3, entitled “Conducting the Interview”, on which Miss Langdale principally relies. Paragraph 3.3 provides:

“For all witnesses, interviews should normally consist of the following four main phases. 1. Establishing rapport 2. Initiating and supporting a free narrative account 3. Questioning; and 4. Closure”

[35]Paragraph 3.5 provides:

“The planning phase, which will have occurred prior to the interview, should provide guidance to the interviewer about what might be achieved in each of the four main phases of the interview …. No interview should be conducted without prior, proper planning. While research has found that the accounts of some types of vulnerable witnesses are less complete than those of other witnesses, these are not necessarily less accurate if the interviewing is conducted appropriately.”

[36]Paragraph 3.13 provides:

“Some vulnerable witnesses may be under the false impression that the interviewer already knows much or all that happened and that their role, being eager to please, is merely to confirm this. It is crucial that interviewers inform witnesses, in ways that the latter understand that: • they were not present at the event(s); • they do not yet know what occurred; • supplying detail is important.” • they were not present at the event(s); • they do not yet know what occurred; • supplying detail is important.”

[37]Paragraphs 3.18 to 3.20 contain specific guidance for child witnesses. In particular, 3.18 provides:

“Toward the end of the rapport phase of an interview with a child witness … the interviewer should advise the witness to give a truthful and accurate account of any incident they describe. There is no legal requirement to do this, but since the video may be used as evidence, it is helpful to the court to know that the child was made aware of the importance of telling the truth….”

[38]Paragraph 3.28, headed “Supporting a free-narrative account”, provides:

“Some form of active listening is necessary, letting the witness know that what they have communicated has been received by the interviewer. This can be achieved by reflecting back to the witness what they have just communicated …. The interviewer should be aware of the danger of subconsciously or consciously indicating approval or disapproval of the information just given.”

[39]Paragraph 3.29, headed “Compliance”, states:

“Some vulnerable witnesses may be particularly compliant in that they will try to be helpful by going along with much of what they believe the interviewer ‘wants to hear’ and/or is suggesting to them. This is particularly so for witnesses who believe the interviewer to be an authority figure ….”

[40]Paragraph 3.44, headed “Types of questions” provides: “Interviewers need fully to appreciate that there are various types of question which vary in how directive they are. Questioning should, wherever possible, commence with open-ended questions and then proceed, if necessary, to specific-closed questions. Forced-choice questions and leading questions should only be used as a last resort”.

[41]The failure to comply with the ABE guidance will often have a decisive effect on the weight to be attached to evidence obtained as a result of the investigation. This is well illustrated by the four Court of Appeal cases cited above.

[42]In Re B (Allegation of Sexual Abuse: Child’s evidence), Hughes LJ (as he then was) observed:

“34. … 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…”

Having considered the evidence in that case, Hughes LJ added:

“40. There is 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 the 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. Others may reduce the value almost to vanishing point.”

In that case, this court allowed a mother’s appeal against the finding that she had watched the father abusing the child and failed to intervene, on the grounds that the flawed manner in which the interview had been conducted meant that it was quite unsafe to rely on it as alone justifying the finding.

[43]In TW v A City Council, Sir Nicholas Wall P said:

“52. … the Guidance makes it clear that the interviewer has to keep an open mind and that the object of the exercise is not simply to get the child to repeat on camera what she has said earlier to somebody else. We regret to say that we were left with a clear impression from the interview that the officer was using it purely for what she perceived to be an evidence-gathering exercise and in particular to make [the child] repeat on camera what she had said to her mother. That, emphatically, is not what ABE interviews are about and we have come to the view that we can place no evidential weight on it. 53. … [I]t is not sufficient for a judge to rely primarily on the fact that the child is able, when being interviewed, in a thoroughly unsatisfactory manner and contrary to the Guidance, to make a number of inculpatory statements. A clear analysis of all the evidence is required and the child’s interview must be assessed in that context.”

In that case, the judge’s acceptance of the validity of the interview, coupled with other factors, vitiated her finding that the child had been abused and the finding was set aside.

[44]In Re E, McFarlane LJ (as he then was) stated (at paragraph 37) that:

“the departures from the ABE guidance require the judge to engage with a thorough analysis of the process in order to evaluate whether any of the allegations the children made to the police could be relied upon.”

At paragraph 98, he concluded inter alia:

“[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, [including] during the ABE interviews.”

For that reason, inter alia, findings that the father and his teenage son had sexually abused other children were set aside.

[45]In Re W, Re F, I said (at paragraph 79):

“I have sympathy for officers and social workers entrusted with the difficult task of speaking to children about allegations of this sort. The ABE Guidance is detailed and complex. But those details and complexities are there for a reason. Experience has demonstrated that very great care is required when interviewing children about allegations of abuse. The Guidance has been formulated and refined over the years by those with particular expertise in the field, including specialists with a deep understanding of how children perceive, recall and articulate their experiences. It would be unrealistic to expect perfection in any investigation. But unless the courts require a high standard, miscarriages of justice will occur and the courts will reach unfair and wrong decisions with profound consequences for children and families.”

In that case, this court allowed an appeal against findings that a man had sexually abused two children, holding that the findings were unsustainable in the light of breaches of the ABE guidance and other factors which rendered the children’s evidence wholly unreliable.

[46]On behalf of the appellant father, Miss Langdale submitted that the “Q and A session” conducted by the police officer on 21 February 2018 completely failed to comply with the ABE guidance. The interview took place twelve weeks after the initial conversation between S and his foster carer. It was not recorded on video. There was no evidence of any planning. It failed to follow the well-established four-phase procedure. There was no attempt to clarify, in an age-appropriate way, the child’s level of understanding. Although the judge concluded that S was “seemingly understanding the difference between truth and lies”, there was no attempt by the interviewing officer to establish whether he understood the importance of telling the truth. There was no free narrative stage. There were several factual errors in what S said to the officer, including the location of his father’s house. There was no proper record of the gesture made by S in the course of the interview. In her judgment, the judge noted that the office was unable to remember what was meant by the phrase “tipping with his fingers” in the note of the interview.

[47]It was Miss Langdale’s submission that the judge did not really engage with the extent to which there had been a failure to comply with the guidance. She identified the fact that the guidance had not been followed but nonetheless proceeded to give weight to the audio recording, for the reasons given in paragraph 31 of her judgment quoted above. Although she said she took into account submissions made on behalf of the father, her analysis of the “Q and A session” contained no reference to the points identified in the previous paragraph.

[48]Miss Langdale further relied on the judge’s failure to identify, and/or attach weight to, a number of other factors, including:(1) inconsistencies in the various accounts given by S, including differences in his various demonstrations as to how his father had touched his penis and conflicting statements about whether or not his father had “eaten” his penis;

(2) evidence suggesting that S’s statements had been influenced or contaminated by remarks made to him by others, including his foster carer; and

(3) the cultural practice mentioned by the father in his police interview and confirmed by the imam and the expert witness.

[49]In reply on behalf of the local authority, Miss Walji was content largely to rely on the judgment at first instance, in particular the judge’s conclusion that S was a very articulate little boy who had been consistent in his evidence and who was describing events that had actually happened to him. She submitted that the judge recognised that the audio recording of the conversation between the police officer and S was not an ABE interview and therefore needed to be treated differently. She drew attention to the judge’s observation that she had to consider how a six-year-old child was able to provide the level of detail about something which would usually be outside his knowledge. The judge had considered the cultural evidence and the possibility that S was describing non-sexualised culturally appropriate behaviour but concluded that his allegation went beyond that practice. The judge’s decision had been based on her overall assessment of the evidence, including the oral evidence given by the parties, and an appellate court should not interfere with that assessment.

Discussion and conclusion

[50]Having myself tried a number of cases at first instance concerning allegations of sexual abuse of children, I do appreciate the great difficulties faced by judges grappling with evidence about allegations of this sort. As I observed in Re W, Re F, it would be unrealistic to expect a perfect investigation and there are frequently aspects of the evidence which give cause for concern about the reliability of the allegations. I recognise the importance of the principle that an appellate court should not interfere with findings of fact by a trial judge unless compelled to do so, for the reasons identified by the Supreme Court and this court on many occasions, including in Fage UK Ltd v Chobani UL Ltd

[2014] EWCA Civ 5

per Lewison LJ at paragraphs 114 – 115. In this case, however, I consider that the judge fell into error in her assessment of the evidence in a way which compels this court to intervene.

[51]First and foremost, I accept Miss Langdale’s submission that the judge’s treatment of what the police officer described as his “Q and A session” with S on 21 February was flawed. The judge acknowledged that it was “not an ABE interview” and that the “proper procedure for an ABE interview” had not been followed, adding that she took “all of that into account”. She described it as “not a flawed ABE interview” but “a different sort of interview” and that she therefore gave it “slightly different weight” to the weight that would be given to “a proper ABE interview”. To my mind, however, she failed to recognise that the deficiencies in the procedure ought to have resulted in the weight given to the interview being very significantly reduced. If it was merely, as the judge said, a “chat between a police officer and a little boy”, it was manifestly of a wholly different character from a formal, planned and structured ABE interview. The absence of any video recording, the delay between S’s conversation with the foster carer on 27 November 2016 and the interview with the police officer on 21 February 2017, the absence of any evidence of planning, the failure to use the four-phase procedure, and the failure to check the boy’s level of understanding, or his awareness of the importance of telling the truth, ought in my view to have called into question the extent to which it was right to attach any or any significant weight to what was said during the session. The judge identified elements in the interview which supported the reliability of what S was saying without articulating any of the elements which detracted from it.

[52]In addition, there are in my view a number of other deficiencies in the judge’s analysis of evidence. First, she seems to have thought that the boy’s accounts were consistent. In fact, there were significant inconsistencies, for example as to whether or not the father had “eaten” S’s penis. In his first conversation with the foster carer on 27 November 2016, S said:

“he kiss it, he bite it”, and later added “so not good that my dad likes to eat my willy”

. In his conversation with the social worker on the following day, however, when C asked him “did he eat your willy?”, S replied by shaking his head. In the police interview on 21 February 2017, S said that his father had only touched his penis once and made no reference to his eating or kissing his penis. During his conversation with the foster carer on 22 May 2017, however, S said that “he put it in his mouth”. The judge attached importance to the last comment without addressing the fact that it was inconsistent with the earlier conversation with the first social worker, C, or the fact that it was an embellishment in an account given six months after the initial allegation. There were also, as described above, material differences between the demonstrations given by S during the various conversations – compare the demonstration described by the foster carer in her account of the conversation on 27 November 2016, the actions described by C in her note of her conversation with S on the following day, the description given by the police officer in his note of the interview of 21 February 2017, and the description given by the foster carer on 22 May 2017. As described in the contemporaneous notes, all four demonstrations were different. The judge did not identify or consider these inconsistencies in her analysis of the evidence.

[53]Secondly, there are concerns that S’s accounts were tainted by comments made by others. In their first conversation on 27 November 2016, his foster carer responded to S’s statement (“Dad touch my willy … he kiss it, he bite it, I don’t like”) by saying that it was good that he had told her about it, and later that what his father had done was wrong and naughty. Later that day, she repeated to S that it was good that he had told her. It is understandable that a foster carer in these circumstances might say such things but from a forensic perspective these remarks exceeded what is recommended in paragraphs 2.5 and 2.6 of the ABE guidance. The judge observed that she could see nothing to suggest that the foster carer was encouraging S to make allegations. She did not address the possibility that S may have been prompted to say things about his father by the foster carer’s responses to his initial comments. It is noticeable that the foster carer used the word “sore” when talking to S on that occasion and that S use the same word the following day when talking to the social worker. It is also unclear how S came to include in his letter to the judge the comment that his father had touched his “private parts”. This phrase is not commonly within the vocabulary of a six-year-old child, and it is notable that the foster carer’s note of her initial conversation with S on 27 November records that she used that phrase when talking to S. There is also the possibility that S had other conversations about this matter which have gone unrecorded. On the evening of 28 November, S told his foster carer that he had seen a police officer that day as well as his social worker. There is no record of a police officer visiting him at school that day, yet it seems that S continued to think he had seen a policeman. During the police interview on 21 February, S said that he had told a police officer on an earlier occasion about what his father had done. The records also show that S told his foster carer that he had told his mother on 8 December 2016 that his father had touched his willy. There is no evidence as to his mother’s reaction, nor any record of what, if anything, she said. These matters all pointed to the possibility of contamination of S’s account, yet there is little analysis of them in the judgment.

[54]Thirdly, there was the unchallenged evidence that it is customary for a man in Kurdish culture to tell his young son that he wants to eat his penis or testicles and to kiss his genitalia. No doubt this came as a surprise to those investigating these allegations. It was something about which the foster carer and the social worker C were completely unaware at the time of their initial conversations with S. It was therefore incumbent on the judge to consider whether it was possible that this might have given rise to a misunderstanding as to what S was saying. The judge concluded that S’s allegations went beyond what might be acceptable in terms of what is said to little boys in his culture, but in reaching that conclusion she failed, in my judgment, to consider whether S’s original remarks might have been misinterpreted by the foster carer and the social worker.

[55]For my part, I am uneasy about the judge’s conclusion that the fact that S’s allegations were expressed “with a level of focus and verbal clarity which he doesn’t otherwise show” was an indication that they were more likely to be true. It might be thought that the fact that a child speaks in a way which is outside his normal use of language indicated the opposite. I am also concerned that the judge’s comment that “it would require a great deal of sophistication on the part of this child to have woven other matters that were not accurate into stories about matters that were accurate” was an assertion for which there was no evidential support. Until recently, it would be common practice for cases involving allegations of this sort to feature expert evidence as to the “veracity” of a child’s allegations, in particular to assist in the interpretation of the video recording of an ABE interview: see Re M and R (Child Abuse: Evidence)

[1996] 2 FLR 195

. That practice has become less common in recent years, perhaps for the reasons identified by Peter Jackson J (as he then was) in Wigan Borough Council v M and others (Veracity Assessments)

[2015] EWFC 8

[2016] 1 FLR 126

. Judicial awareness of these issues has greatly increased and it will rarely be the case that a judge will conclude that such expert evidence is “necessary”, as required under Part 25 of the Family Procedure Rules. Nonetheless, judges must be careful when basing decisions on their own assessment of the level of a child’s sophistication. In this case, the judge had no psychological evidence about S, nor did she have the benefit of seeing him on a video recording. In fact, the issue in this case was not S’s level of sophistication but rather whether his statements represented a genuine memory of an actual experience or a mixture of experience and comments made by, or cues taken from, other people. For my part, whilst acknowledging the conscientious way in which the judge approached this difficult task, I do not think she addressed this issue adequately.

[56]For these reasons – in particular the judge’s flawed treatment of the police officer’s interview with S on 21 February 2017, but also the other matters referred to above – I have reached the clear conclusion that the judge’s finding that S was sexually assaulted by his father cannot stand. Accordingly, in my view, the appeal must be allowed and the finding set aside.

[57]The question arises as to whether this court is able to reach a decision as to the appropriate finding. Although such a course would avoid further delay in concluding these proceedings, we have not had an opportunity to consider all the evidence. In my view, therefore, the right course is to remit the matter for retrial by another judge. To that end, if my Lords are in agreement, and if the local authority decides to pursue the allegation, I would propose that the matter be referred to the Family Division Liaison Judge for East Anglia, Newton J, to allocate the re-hearing as he thinks appropriate. LORD JUSTICE HENDERSON

[58]I agree. LORD JUSTICE DAVID RICHARDS

[59]I also agree.

Cited in 13 later judgments

and 4 more of the most senior