P (Sexual Abuse: Finding of Fact Hearing) [2019] EWFC 27

“It is now generally accepted that if justice is to be done to the vulnerable witness and also to the accused, a radical departure from the traditional style of advocacy will be necessary. Advocates must adapt to the witness, not the other way round. They cannot insist upon any supposed right "to put one's case" or previous inconsistent statements to a vulnerable witness. If there is a right to "put one's case" (about which we have our doubts) it must be modified for young or vulnerable witnesses. It is perfectly possible to ensure the jury are made aware of the defence case and of significant inconsistencies without intimidation or distressing a witness (see for example paragraph 3E.4 of the Criminal Practice Directions).”

“...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.”

“We should no more expect every case which a local authority brings to court to result in an order than we should expect every prosecution brought by the CPS to result in a conviction. The standard of proof may be different, but the roles of the social workers and the prosecutors are similar. They bring to court those cases where there is a good case to answer. It is for the court to decide whether the case is made out. If every child protection case were to result in an order, it would mean either that local authorities were not bringing enough cases to court or that the courts were not subjecting those cases to a sufficiently rigorous scrutiny.”

“In our legal system, if a judge finds it more likely than not that something did take place, then it is treated as having taken place. If he finds it more likely than not that it did not take place, then it is treated as not having taken place. He is not allowed to sit on the fence. He has to find for one side or the other. Sometimes the burden of proof will come to his rescue: the party with the burden of showing that something took place will not have satisfied him that it did. But generally speaking a judge is able to make up his mind where the truth lies without needing to rely upon the burden of proof.”

“…notwithstanding the 'binary system' explained by the House of Lords in In re B (Children) [2008] UKHL 35, [2009] 1 AC 11, para [2] (Lord Hoffmann) and para [32] (Baroness Hale), it may be relevant at the subsequent 'welfare' hearing to know, and thus for the judge as part of his fact-finding to record, whether a particular matter was not found proved because the judge was satisfied as a matter of fact that it did not happen or whether it was not found proved (and therefore in law is deemed not to have happened) because the party making the assertion failed to establish it to the relevant standard of proof but in circumstances where there is nonetheless continuing suspicion. It is of course a cardinal principle that at the 'welfare' or 'disposal' stage, as at any preceding fact-finding hearing, the court must act on facts, not on suspicions or doubts; for unproven allegations are no more than that: see the analysis by Baroness Hale in In re B (Children), following and declining to overrule what Butler-Sloss LJ had said in In re M and R (Minors) (Abuse: Expert Evidence) [1996] 4 All ER 239, page 246, and the obiter dicta of Lord Nicholls of Birkenhead in In re O and another (Minors) (Care: Preliminary Hearing), In re B (A Minor), [2003] UKHL 18, [2004] 1 AC 523, para [38]. But this is not, of itself, a reason for excluding from the fact-finding judgment material of the kind to which Ms Crowley takes objection.”

“I wish only to stress … the very great importance of including in any assessment every aspect of a case. Very important indeed is the account of the child, considered, of course, in an age appropriate way. An express denial is no less an account than is a positive account of abuse. It is also, in my opinion, very important to take fully into account the account and demeanour of the parents, and an assessment of the family circumstances and general quality of the parenting.”

“[40] This is not to say that judges (or jurors) lack the ability to tell whether witnesses are lying. Still less does it follow that there is no value in oral evidence. But research confirms that people do not in fact generally rely on demeanour to detect deception but on the fact that liars are more likely to tell stories that are illogical, implausible, internally inconsistent and contain fewer details than persons telling the truth: see Minzner, "Detecting Lies Using Demeanor, Bias and Context" (2008) 29 Cardozo LR 2557. One of the main potential benefits of cross-examination is that skilful questioning can expose inconsistencies in false stories. [41] No doubt it is impossible, and perhaps undesirable, to ignore altogether the impression created by the demeanour of a witness giving evidence. But to attach any significant weight to such impressions in assessing credibility risks making judgments which at best have no rational basis and at worst reflect conscious or unconscious biases and prejudices. One of the most important qualities expected of a judge is that they will strive to avoid being influenced by personal biases and prejudices in their decision-making. That requires eschewing judgments based on the appearance of a witness or on their tone, manner or other aspects of their behaviour in answering questions. Rather than attempting to assess whether testimony is truthful from the way it is given, the only objective and reliable approach is to focus on the content of the testimony and to consider whether it is consistent with other evidence (including evidence of what the witness has said on other occasions) and with known or probable facts.”

“The credibility of a witness depends on his knowledge of the facts, his intelligence, his disinterestedness, his integrity, his veracity. Proportionate to these is the degree of credit his testimony deserves from the court or jury. Amongst the more obvious matters affecting the weight of a witness’s evidence may be classed his means of knowledge, opportunities of observation, reasons for recollection or belief, experience, powers of memory and perception, and any special circumstances affecting his competency to speak to the particular case—all of which may be inquired into either in direct examination to enhance, or in cross-examination to impeach the value of his testimony.”

“To these matters I would only add that in cases where repeated accounts are given of events surrounding injury and death, the court must think carefully about the significance or otherwise of any reported discrepancies. They may arise for a number of reasons. One possibility is of course that they are lies designed to hide culpability. Another is that they are lies told for other reasons. Further possibilities include faulty recollection or confusion at times of stress or when the importance of accuracy is not fully appreciated, or there may be inaccuracy or mistake in the record keeping or recollection of the person hearing or relaying the account. The possible effects of delay and repeated questioning upon memory should also be considered, as should the effect on one person of hearing accounts given by others. As memory fades, a desire to iron out wrinkles may not be unnatural – a process that might inelegantly be described as “story-creep” may occur without any necessary inference of bad faith.”

“The medical assessment of physical signs of sexual abuse has a considerably subjective element, and unless there is clearly diagnostic evidence of abuse (e.g. the presence of semen or a foreign body internally) purely medical assessments and opinions should not be allowed to predominate. Even 20 years after the Cleveland Inquiry, I wonder whether its lessons have fully been learned.”

“[100] One highly important aspect of the Lucas decision, and indeed the approach to lies generally in the criminal jurisdiction, needs to be borne fully in mind by family judges. It is this: in the criminal jurisdiction the ‘lie’ is never taken, of itself, as direct proof of guilt. As is plain from the passage quoted from Lord Lane's judgment in Lucas, where the relevant conditions are satisfied the lie is "capable of amounting to a corroboration". In recent times the point has been most clearly made in the Court of Appeal Criminal Division in the case of R v Middleton [2001] Crim.L.R. 251. In my view there should be no distinction between the approach taken by the criminal court on the issue of lies to that adopted in the family court. Judges should therefore take care to ensure that they do not rely upon a conclusion that an individual has lied on a material issue as direct proof of guilt.”

“To be capable of amounting to corroboration the lie told out of court must first of all be deliberate. Secondly it must relate to a material issue. Thirdly the motive for the lie must be a realisation of guilt and a fear of the truth. The jury should in appropriate cases be reminded that people sometimes lie, for example, in an attempt to bolster up a just cause, or out of shame or out of a wish to conceal disgraceful behaviour from their family. Fourthly the statement must be clearly shown to be a lie by evidence other than that of the accomplice who is to be corroborated, that is to say by admission or by evidence from an independent witness.”

“I must focus upon the essential principle. Evidence about what A has done to B may be admissible and probative of what A has done to C. The value of such evidence, however, depends upon its independence. If there is a significant risk of contamination undermining that independence, the relevance and value may be correspondingly diminished. It is necessary to be wary in cases where a risk of contamination arises (which is real, as opposed to fanciful) because of the investigation process itself.”

“[368] For example, where a social services department investigates allegations of sexual abuse, whether from the recent or distant past, its inquiries may prompt complainants who would not have come forward of their own accord. It was made clear in Ananthanarayanan that a jury may well need to be given a specific direction in such cases to meet the problem. It would not suffice merely to direct the jury that they need to be sure that there has been no conspiracy to give false evidence; they would need to be sure also that there had been no influence from hearing of the allegations made by other people or by suggestions from some other person. In this case, the Claimants contend that there was a substantial risk of contamination throughout the investigation. Indeed, the Review Team were expressly warned by Constable Helen Foster of the specific risks in this case. Miss Page submits that it was pervasive. [369] She did not submit that this rendered the evidence inadmissible but asks me to bear it very much in mind wherever it may be suggested that the evidence of one child or parent should be treated as corroborative of another’s. Here there are various “pervasive” problems. There was a risk of contamination through social services asking questions or suggesting that questions be asked; through parents speaking to children or to other parents; through children speaking to other children; through police or social services interviewers suggesting concepts or events to children; through Dr San Lazaro suggesting that questions be asked, or passing on between parents or children negative messages about the Claimants, or about behaviours or phobias to watch out for. [370] It is also important to remember that if a witness’s evidence is incredible it should be rejected. It cannot be given credibility through corroboration: see the remarks of Lord Hailsham in Kilbourne [1975] AC 746. The principle is one of common sense and therefore just as significant in the context of civil litigation. [371] Thus, if I am doubtful about an allegation in relation to Child X, because of a risk of contamination or for any other reason, I should assess it on its own merits. If I find Child X’s evidence persuasive, then I can take into account corroborative evidence from Child Y provided I keep a sharp lookout for risks of contamination of the kinds I have identified.”

“[34] A case based on circumstantial evidence depends for its cogency on the combination of relevant circumstances and the likelihood or unlikelihood of coincidence. A party advancing it argues that the circumstances can only or most probably be accounted for by the explanation which it suggests. Consideration of such a case necessarily involves looking at the whole picture, including what gaps there are in the evidence, whether the individual factors relied upon are in themselves properly established, what factors may point away from the suggested explanation and what other explanation might fit the circumstances. As Lord Mance observed in Datec Electronics Holdings Limited v UPS limited [2007] UKHL 23, [2007] 1 WLR 1325, at 48 and 50, there is an inherent risk that a systematic consideration of the possibilities could become a process of elimination “leading to no more than a conclusion regarding the least unlikely cause of loss”, which was the fault identified in The Popi M. So at the end of any such systematic analysis, the court has to stand back and ask itself the ultimate question whether it is satisfied that the suggested explanation is more likely than not to be true. The elimination of other possibilities as more implausible may well lead to that conclusion, but that will be a conclusion of fact: there is no rule of law that it must do so. I do not read any of the statements in any of the other authorities to which we were referred as intending to suggest otherwise. [35] The civil “balance of probability” test means no less and no more than that the court must be satisfied on rational and objective grounds that the case for believing that the suggested means of causation occurred is stronger than the case for not so believing. In the USA the usual formulation of this standard is a “preponderance of the evidence”

“It is of course elementary that one should put to one side any notion that an unwillingness to place reliance on a child’s evidence of sexual abuse necessarily imputes bad faith to the child, its parents or any other interrogator. What the research has thrown into stark relief is quite simply that very young children do not appear to have the same clear boundaries between fact and fantasy as that which adults have learned to draw”

“…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.”

“…keep firmly in mind (unlike many of the professionals in this case) the very significant developments in our understanding of the ‘reliability’ of allegations made by children over the last 30 years. In parallel with that development has been increased understanding and acknowledgment of the wide range of internal and external influences that can distort and undermine the reliability of child complainants. It is a fact that children’s accurate memories can be wholly usurped by a wide range of external and internal factors, such as suggestive questioning or confirmatory bias. The Court must keep firmly in mind the work of, for example, Professors Ceci and Bruck (Jeopardy in the Courtroom: A Scientific Analysis of Children’s Testimony (1995 – American Psychological Association)). That research has revealed not only the danger that children’s memories may be completely usurped, but that children finding themselves in such circumstances may embellish or overlay a general theme with apparently convincing detail that can be very difficult to detect, even by the most expert assessor.”

“[16] While everyone knows that memory is fallible, I do not believe that the legal system has sufficiently absorbed the lessons of a century of psychological research into the nature of memory and the unreliability of eyewitness testimony. One of the most important lessons of such research is that in everyday life we are not aware of the extent to which our own and other people's memories are unreliable and believe our memories to be more faithful than they are. Two common (and related) errors are to suppose: (1) that the stronger and more vivid is our feeling or experience of recollection, the more likely the recollection is to be accurate; and (2) that the more confident another person is in their recollection, the more likely their recollection is to be accurate. [17] Underlying both these errors is a faulty model of memory as a mental record which is fixed at the time of experience of an event and then fades (more or less slowly) over time. In fact, psychological research has demonstrated that memories are fluid and malleable, being constantly rewritten whenever they are retrieved. This is true even of so-called 'flashbulb' memories, that is memories of experiencing or learning of a particularly shocking or traumatic event. (The very description 'flashbulb' memory is in fact misleading, reflecting as it does the misconception that memory operates like a camera or other device that makes a fixed record of an experience.) External information can intrude into a witness's memory, as can his or her own thoughts and beliefs, and both can cause dramatic changes in recollection. Events can come to be recalled as memories which did not happen at all or which happened to someone else (referred to in the literature as a failure of source memory).”

“A mere lawyer has to approach such matters with care, conscious that nothing is certain, and to pay close regard to the evidence in the specific case or cases, without being drawn into taking sides on the more general debate.”

“Throughout the phase of the initial assessment and preliminary decisionmaking, social workers should be conscious of the fact that the presumption that abuse has taken place can have damaging repercussions for the child and the family. Equally an abnormally low level of alertness to the possibility of child sexual abuse may deter children from subsequently trusting adults sufficiently to reveal the fact of abuse to them.”

“[15.22] “It is recommended as matter for guidance that all those involved in investigating allegations of child sexual abuse must keep an open mind and not fall into the trap of confusing the taking of what a child says seriously with believing what the child has said. [15.23] The preservation of an open mind requires a concentration in listening with care to what a child says, absorbing all that is said and weighing the child’s words objectively. A mind coloured by suspicion or a mind already moving towards a diagnosis can readily undervalue or ignore material that does not fit with the preconceived picture. Similarly material which does appear to fit may be over emphasised and highlighted in such a way as to distort the child’s further account of the situation ... as much care should be given to assessing a denial as examining an allegation ... Where allegations are made by a child regarding sexual abuse those allegations should be treated seriously, they should not necessarily be accepted as true but should be examined and tested by whatever means are available before they are used for the basis of action.”

“Much of the original Cleveland learning is retained and reiterated.

“The police officer taking a statement from a complainant has a unique opportunity to assess the complainant’s veracity. The effect of requiring a police officer, in such a position, to believe a complainant reverses the burden of proof. It also restricts the officer’s ability to test the complainant’s evidence”

“Since a complainant may or may not be telling the truth, the present policy causes those not telling the truth to be artificially believed and, thus, liars and fantasists, and those genuinely mistaken, are given a free run both unquestioned and unchallenged. The obligation to believe at the outset can and does obstruct the asking or relevant or probing questions designed to elicit the truth. The asking of such questions can be achieved in a sympathetic, kindly and professional manner. Criminal investigation should include the process of investigating from the outset and not waiting for some evidence to the contrary to turn up.”

“The instruction to ‘believe’ a ‘victim’s’ account should cease. It should be the duty of an officer interviewing a complainant to investigate the facts objectively and impartially and with an open mind from the outset of the investigation. At no stage must an officer show any form of disbelief and every effort must be made to facilitate the giving of a detailed account in a non-confrontational manner.”

“A persons’ established beliefs are often difficult to change and resist contradictory evidence (Ross, Lepper & Hubbard, 1975). This phenomenon, referred to as “confirmation bias”, can have especially detrimental effects when working with child witnesses. If an interviewer enters a room, prepared to question a child, and brings along pre-established beliefs about the case or the accuracy and credibility of the child, the interviewer may unintentionally put disproportional weight on some statements the child makes while ignoring others. If the interviewer’s initial suspicions are incorrect, this could create a false report. Confirmation bias is potentially a problem for all people who may interact with a child witness, even professionals in the field of forensics, human development and social science. In fact, experts tend to be more confident in their evaluations of witnesses than others, despite not necessarily being more skilled at distinguishing accurate from inaccurate statements (DePaulo et al., 2003; Wessel, Drevland, Eilertsen, & Magnussen, 2006).”

“...the requirement for the interviewer to keep an open mind as to what may or may not have happened to the child, and not to seek only to elicit ‘details that will prove a hypothesis about the child’s experience(s) constructed on the bases of the initial information.’”

“…seeing both sides of an issue, being open to new evidence that disconfirms your ideas, reasoning dispassionately, demanding that claims be backed by evidence, deducing and inferring conclusions from available facts...” facts...”

“The signs of child abuse might not always be obvious and a child might not tell anyone what is happening to them. You should therefore question behaviours if something seems unusual and try to speak to the child, alone, if appropriate, to seek further information”

“If a child reports, following a conversation you have initiated or otherwise, that they are being abused and neglected, you should listen to them, take their allegation seriously, and reassure them that you will take action to keep them safe.”

“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. Such a brief account should include where and when the alleged incident took place and who was involved or otherwise present.”

“We would emphasise the importance of listening carefully to the initial presentation of information and taking careful notes”

“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.”

“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.”

“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.”

“Sixthly, this case has, to my mind, demonstrated that veracity or validity assessments have a limited role to play in family proceedings. They are, so far as I am aware, unused in criminal proceedings in this country, and I see strong arguments for imposing restrictions on their use in family cases as well. As recognised by those who have devised criterion-based content analysis, and as acknowledged by Dr De Jong in evidence, statement validity analysis is not designed to be used in a forensic context. There is a risk that its alleged scientific formulation will give it an over-elevated status. Furthermore, there is a danger that some courts, faced with these difficult decisions, will subconsciously defer to the apparent expert. That danger has been recognised in a number of cases in which the courts have emphasised the discrete roles of the expert and the court. In the case of the veracity expert, the danger is particularly acute. The ultimate judge of veracity, i.e. where the truth lies, is the judge and the judge alone. He cannot delegate that decision to any expert. I acknowledge that a child psychiatrist such as Dr De Jong may be able to point out some features of a child's account that add or detract from authenticity, as she has done in this case. But, in my experience, many of these features should be obvious to judges in any event. No expert, however experienced and however well briefed about the case, will be in a position to say where the truth lies. Only the judge sees and hears all the evidence.”

“Any joint child abuse interview conducted by police and social services must follow the memorandum of good practice. Otherwise, not only is the resulting interview of no forensic value, but it may impede or contaminate any further assessment of the child ordered by the court.”

“[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”

“Clinical evaluation of the signs, which may themselves be minute or hard to detect, and the need to differentiate between variations in the range of normality, possible accidental explanations or compatibility with child sexual abuse is a professional task of a high order of both difficulty and importance.”

“The recognition of child sexual abuse has been likened to completing a jigsaw whereby the individual pieces of information need to be put together before the full picture can emerge. It is important to consider all physical findings together with other important clinical information, including the history, the context of the child’s or young person’s behaviour and demeanour, and statements made by the child to professionals, in order to make a diagnosis. The medical assessment will contribute to the whole picture which includes the multi-agency assessment.”

“The anogenital findings must always be interpreted in the broad context of a detailed medical, social and family assessment and the child’s behaviour and demeanour.”

“[19] In itself, the presence or absence of a particular factor proves nothing. Children can of course be well cared for in disadvantaged homes and abused in otherwise fortunate ones. As emphasised above, each case turns on its facts. The above analysis may nonetheless provide a helpful framework within which the evidence can be assessed and the facts established.”

“The perpetrators of sexual abuse are inadequate individuals who control weaker people, often children, for their own gratification. Their behaviour is always an abuse of power and usually a breach of trust. They destroy families and blight childhoods. They create dread in their victims by convincing them that the consequences of speaking out will be worse than the consequences of silence. They create guilt in their victims by persuading them that they have somehow willingly participated in their own abuse. They burden their victims with secrets. They poison normal relationships, trade on feelings of affection, drive a wedge between their victims and others, and make family and friends take sides. They count on the failure or inability of responsible adults, both relatives and professionals, to protect and support the victims. Faced with exposure, they commonly turn on their victims, try to assassinate their characters, and get others to do the same. Most often, their selfishness is so deep-rooted that they ignore other people's feelings and are only capable of feeling pity for themselves.”

“I wish only to stress…the very great importance of including in any assessment every aspect of a case. Very important indeed is the account of the child, considered, of course, in an age appropriate way. An express denial is no less an account than is a positive account of abuse. It is also, in my opinion, very important to take fully into account the account and demeanour of the parents, and an assessment of the family circumstances and general quality of the parenting…Even 20 years after the Cleveland Inquiry, I wonder whether its lessons have fully been learned.”

“... if, a professional generation or more on from what went so badly wrong in Cleveland, investigations with this extent of professional involvement, have departed from what had been understood to be the lessons learned, then there may be the need for a reminder.”

“The ability of a society to acknowledge and begin to understand unpalatable truths about how life is lived by some of its members is a sign of maturity that only comes with time and as a result of a long road carefully travelled”