“I understand that the reason given by him is that, if A is not attending court, then he is not attending court either. I think that is an absolute ridiculous reason for an adult to give as to their non attendance. Mother is clearly in court. I do not see why the father should not be in court. There are serious allegations that are being levied at the father. His response is a simple denial and saying that the mother or the grandmother or both have put A up to making these allegations against him.”
“98. It is clear that in the ABE interviews she has not been prompted. The interviews I would say have been in accordance with the guidelines, despite the fact that the second interview, the truth and lie test was not recorded on the tape, I am satisfied that the interviews conducted this test. The ABE interviews have considerable weight attached given the disclosures made, the demeanour of A at those interviews and the fact that she has not been prompted. 99. In fact, she has been left very much to her own devices and my observation is that in the first interview, which is recorded, A has considerable notes in her hand. She seems very confident when she is looking at her notes: great reminders for her as to what she wants to talk about and she moves on from one note to another and you can see the way she moves the pages in doing that. Nobody is prompting her at all. Very few questions are asked of her and I would say that that is very appropriate, otherwise the criticism would be that she is being probed and she is being prodded and she is being led. She certainly has not. The second interview, she reveals, I would say, very serious allegations, more serious than the first interview and she is more withdrawn. She does not have the use of the notes in the same way as she did before, but she is able to demonstrate by using a drawing that was made for her to indicate where her father had touched her. It is quite clear that she is incredibly uncomfortable in making these disclosures. 100. It is to be noted that the first interview happened in March 2021. The second interview happened in September 2021. Between those two dates, she had moved to five different placements in total and two attempted suicides by her. That, quite clearly, from her demeanour, I would say, has affected her considerably. She appeared to be a different person from the first interview to the second and the allegations are far more serious and no doubt the effect on her is grave, as can be seen: the young bubbly girl able to talk more freely using her notes in the first interview, to the second interview where she is very distressed. You can see she is visibly distressed. She had been crying. She took a break as soon as that difficult issue was raised. She came back very upset and carried on but did not want to disclose anymore because of her distress. 101. She was, in my view, able to give as much information as she could at that time. It may be that at some later date further disclosures are made. I do not rule that out either. But I cannot say that the ABE interviews should not have significant weight. They do, but not on their own. Looking at all the other evidence, all the other disclosures to the professionals, the notes she has made, all added together paints a picture that this child is telling the truth.”
“It was clear that A understood that that did not happen, but it was something that she thought had happened in her head. To say that she actually lied is very difficult, but it is quite clearly something that has not happened, and she thought it did, but there is a plausible explanation that she was traumatised at the time. That I do not hold against her in terms of saying that, because that is something that is factually incorrect, the rest of her evidence are lies or untruths….”
“The ABE Guidance is advisory rather than a legally enforceable code. However, significant departures from the good practice advocated in it will likely result in reduced (or in extreme cases no) weight being attached to the interview by the courts.”
“just to clarify, when you’re talking about your chest, do you mean your breasts?”
“(1) In certain circumstances a court may be entitled to draw adverse inferences from the absence or silence of a witness who might be expected to have material evidence to give on an issue in an action. (2) If a court is willing to draw such inferences, they may go to strengthen the evidence adduced on that issue by the other party or to weaken the evidence, if any, adduced by the party who might reasonably have been expected to call the witness. (3) There must, however, have been some evidence, however weak, adduced by the former on the matter in question before the court is entitled to draw the desired inference: in other words, there must be a case to answer on that issue. (4) If the reason for the witness's absence or silence satisfies the court, then no such adverse inference may be drawn. If, on the other hand, there is some credible explanation given, even if it is not wholly satisfactory, the potentially detrimental effect of his/her absence or silence may be reduced or nullified.”
"In our legal system generally, the silence of one party in face of the other party's evidence may convert that evidence into proof in relation to matters which are, or are likely to be, within the knowledge of the silent party and about which that party could be expected to give evidence. Thus, depending on the circumstances, a prima facie case may become a strong or even an overwhelming case. But, if the silent party's failure to give evidence (or to give the necessary evidence) can be credibly explained, even if not entirely justified, the effect of his silence in favour of the other party may be either reduced or nullified."