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England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> E (A Child)  EWCA Civ 473 (19 May 2016)
Cite as:  1 FLR 1675,  EWCA Civ 473,  3 FCR 499,  4 WLR 105,  Fam Law 953,  WLR(D) 270,  Crim LR 649
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ON APPEAL FROM HER HONOUR JUDGE WATSON
XX FAMILY COURT
Strand, London, WC2A 2LL
B e f o r e :
LADY JUSTICE GLOSTER
LADY JUSTICE MACUR
|Re E (A child)|
Ms Elizabeth McGrath QC and Ms Martine Kushner (instructed by X City Council) for the First Respondent
Ms Hannah Markham QC and Ms Adelle Eveleigh-Winstone (instructed by Tustain Jones & Co. Solicitors)for the Second Respondent
Ms Lorna Meyer QC and Ms Yolanda Pemberton for the Third Respondent
Mr Andrew Bainham (instructed by Brethertons LLP) for the 2nd to 4th Interveners
Hearing date : 7th April 2016
Crown Copyright ©
Lord Justice McFarlane:
a) The approach to determining whether a child witness should be called in the course of family proceedings following the Supreme Court decision in Re W (Children) (Family Proceedings: Evidence)  UKSC 12;  1 WLR 701.
b) The weight to be given to defects in both the process and the content of ABE interviews conducted with child victims and witnesses ("Achieving Best Evidence in Criminal Proceedings" – Ministry of Justice March 2011).
c) The approach to be taken by those representing a child in family proceedings where that child is himself accused of being the perpetrator of abuse.
d) The basic requirements of due process necessary to meet the Article 6 fair trial rights of such a child during the investigation and any subsequent Family Court proceedings where he or she might properly be regarded as either a perpetrator or a victim or both.
"With all the enquiries I have undertaken I have not found any evidence that corroborates the children's disclosures or prove any offences have taken place."
The officer concluded that the ABE interviews could not be used in court and that the children's account would not stand up to any scrutiny. Her opinion was, therefore, that there was no realistic prospect of conviction. The police investigation was therefore closed.
The findings of sexual abuse
a) Mr E had instilled fear in each of the children by creating "a climate of fear" so that the children were compliant with his requests. He threatened them with violence, which he did not in fact use as the threat was sufficient for his purposes.
b) Mr E had indecently assaulted D. This occurred in the Es' family home upstairs in a bedroom and, also, outdoors in bushes on scrubland near to some local shops. These indecent assaults occurred on more than one occasion in each of those locations.
c) Mr E had regularly involved D in acts of oral sex.
d) The abuse of D had started when she was aged 3 or 4 years and had become so normalised that, on the judge's findings, she did not object and, rather, welcomed the attention which would result in her being given sweets.
e) Mr E "made" his son A perform oral sexual activity with D so that he could watch.
f) Similar sexual behaviour occurred between Mr E and C and also between A and C.
g) In general terms Mr E orchestrated sexual activity between the children for his personal sexual gratification. For example, B was required to perform sexual activity with his brother and his sister.
h) On occasions both Mr E and A would film the children engaged in sexual activity.
i) Sexual activity between the children included penetration with a child's penis. This was watched by Mr E and filmed by him.
j) There was not sufficient evidence to prove that Mr E himself had raped any of the children.
k) On occasions the children would be taken to a hotel where they would be given wine and tablets and required to perform sexual acts with each other.
l) On occasions other, unspecified, adults would come into the hotel room to watch the children engaged in sexual activity.
m) The children had been made to perform sexual acts with animals including a specific dog. The judge found that both A and Mr E attempted to penetrate the anus of the dog with their penises.
"In my finding, penetrative sexual activity has occurred between the children, which includes vaginal and anal and oral penetration. This has occurred in the presence of Mr E, who in my judgment was controlling the situation. It has also occurred on occasions when Mr E has not been present. A has been the instigator of abuse under the direction of his father, who has provided the money to buy alcohol and has, by his presence and/or control of A forced all the children, including his own son, to perform acts of gross indecency with each other."
And paragraph 112:
"…A, who, I am satisfied, is enthralled to his father and did his father's bidding."
And paragraph 117:
"When I consider the allegation sought against A, I have to have regard to his age and his position within the E family. He is dependent on his father and influenced by him…A had no alternative but to do what he was told."
And, finally, at paragraph l19:
"A, like B, is at an age when there will be heightened sexual awareness. This was fertile ground for the sexual abuse I find proved. A is both a victim of abuse and, in the cycle of abuse the victim can become perpetrator of abuse on others. I am satisfied his activities, which include [details given], should be seen in that light. A was acting as taught, directed and orchestrated by his father. A has now found a safe haven from the cycle of abuse."
The Family Court Proceedings
i) error in analysing the evidence of the three complainant children and their mother;
ii) error in analysing the evidence of A;
iii) making findings that went beyond those sought by any party;
iv) effective reversal of the burden of proof; and
v) failure to take account of the police investigation and assessment.
Outcome of the appeal
'Okay I think that's about it for me isn't it we've done the intros. So obviously we know why you're here today about what we're going to talk to you about, yes, and I think it's something you told [foster carer]. Okay can you just tell me, go from the start as much as you can about what's been happening, do you remember what you told [foster carer], do you remember talking to her last week about something that had been happening with you and your brothers?'
D is unresponsive to this and similar requests, which then leads the interviewer to add:
'[Foster carer] told us a little bit about what you said last week and it was to do with [Mr E's first name given] and [incorrect name for A given], do you remember that now?'
This is but one example of the approach to questioning adopted by this interviewer throughout each of the three interviews.
'As we have already pointed out, the [ABE] Guidance makes it clear that the interviewer has to keep an open mind and that the object of the exercise is not simply to get the child to repeat on camera what she has said earlier to somebody else. We regret to say that we are left with the clear impression from the interview that the officer was using it purely for what she perceived to be an evidence gathering exercise and, in particular, to make LR repeat on camera what she had said to her mother. That emphatically is not what ABE interviews are about and we have come to the view that we can place no evidential weight on it.' [Emphasis in original]
"In my judgment, the evidence from the children met those conditions in that the interviews were conducted promptly and were recorded. The foster carer had taken the children away on a pre-booked holiday but the children were interviewed on their return."
ABE Interview process: discussion
a) The introduction and 'truth and lies' aspects of Phase One were not undertaken on camera. There is no note or other record of what was said to each child, and the circumstances in which it was said, prior to entering the video suite.
b) No note was kept of what transpired with D in the police station during the hour that she was out of the interview room.
c) The children were subsequently seen at their home by the interviewing officer for a process of fast-track questioning.
d) The short summary note of what each child may have said during the fast track process is wholly inadequate.
e) More generally, contrary to ordinary practice where, we were told, a formal pro-forma is prepared, no written record was available at all from the police of the ABE process.
f) As the officer conducting the interviews was not called to give evidence, the court did not have any account of these matters (other than that of the foster carer with respect to the missing hour during D's interview).
g) The questioning by the officers at significant stages in all three interviews was on all fours with that which was roundly criticised by this court in TW v A City Council and was a clear attempt simply to have the children repeat on camera what they may have said to their foster carer. Leading questions were used and key elements of the narrative, for example the names of the alleged abusers, were introduced by the interviewers.
The children's evidence
a) The judgment opens, after four short introductory paragraphs, with the judge's summary of the ABE interviews of each child. These summaries, which are not set into any context and are not preceded by any account of what the children are reported as having said when the allegations were initially made to the foster carer, elide description with selective evaluation and then findings.
b) No consideration is given to the potential for the manner in which the allegations were first made to impact upon the reliability of what was subsequently said by the children.
c) In the absence of any direct corroborating evidence, the judge failed to evaluate the various factors which militated against the truth of the allegations.
d) There is a failure to take account of the fact that C had twice made, and later withdrawn, false allegations of sexual abuse against other individuals.
e) The judge wrongly reached the conclusion that the evidence of each child corroborated that of the others. There was inadequate analysis of inconsistencies in the accounts, both internally for each child and between the three children.
i) each child gave a different account to that given by his or her siblings;
ii) each child made a number of significant factual allegations to the foster carer which were not repeated in their ABE interviews; and
iii) B effectively made no allegations of sexual abuse in his ABE interview.
'D's account is different from her brothers. There are inconsistencies in the accounts between the three children which is said undermines the veracity of the accounts but the very same inconsistencies are also evidence that the children have not colluded or rehearsed their evidence. I am satisfied that this is not a prepared script.
Later, at paragraph 28, she states:
'There is consistency from all three in the ABE interviews, which, although different, each corroborate different aspects of the primary disclosure.'
Finally, in response to a request for clarification after the draft judgment had been circulated, the judge added:
'The inconsistencies in the children's ABE interviews are addressed.'
Calling the children to give evidence
"22. However tempting it may be to leave the issue until it has received the expert scrutiny of a multi-disciplinary committee, we are satisfied that we cannot do so. The existing law erects a presumption against a child giving evidence which requires to be rebutted by anyone seeking to put questions to the child. That cannot be reconciled with the approach of the European Court of Human Rights, which always aims to strike a fair balance between competing Convention rights. Article 6 requires that the proceedings overall be fair and this normally entails an opportunity to challenge the evidence presented by the other side. But even in criminal proceedings account must be taken of the article 8 rights of the perceived victim: see SN v Sweden  39 EHRR 304. Striking that balance in care proceedings may well mean that the child should not be called to give evidence in the great majority of cases, but that is a result and not a presumption or even a starting point."
"24. When the court is considering whether a particular child should be called as a witness, the court will have to weigh two considerations: the advantages that that will bring to the determination of the truth and the damage it may do to the welfare of this or any other child. A fair trial is a trial which is fair in the light of the issues which have to be decided. Mr Geekie accepts that the welfare of the child is also a relevant consideration, albeit not the paramount consideration in this respect. He is right to do so, because the object of the proceedings is to promote the welfare of this and other children. The hearing cannot be fair to them unless their interests are given greater weight.
25. In weighing the advantages that calling the child to give evidence may bring to the fair and accurate determination of the case, the court will have to look at several factors. One will be the issues it has to decide in order properly to determine the case. Sometimes it may be possible to decide the case without making findings on particular allegations. Another will be the quality of the evidence it already has. Sometimes there may be enough evidence to make the findings needed whether or not the child is cross-examined. Sometimes there will be nothing useful to be gained from the child's oral evidence. The case is built upon a web of behaviour, drawings, stray remarks, injuries and the like, and not upon concrete allegations voiced by the child. The quality of any ABE interview will also be an important factor, as will be the nature of any challenge which the party may wish to make. The court is unlikely to be helped by generalised accusations of lying, or by a fishing expedition in which the child is taken slowly through the story yet again in the hope that something will turn up, or by a cross examination which is designed to intimidate the child and pave the way for accusations of inconsistency in a future criminal trial. On the other hand, focussed questions which put forward a different explanation for certain events may help the court to do justice between the parties. Also relevant will be the age and maturity of the child and the length of time since the events in question, for these will have a bearing on whether an account now can be as reliable as a near-contemporaneous account, especially if given in a well-conducted ABE interview.
26. The age and maturity of the child, along with the length of time since the events in question, will also be relevant to the second part of the inquiry, which is the risk of harm to the child. Further specific factors may be the support which the child has from family or other sources, or the lack of it, the child's own wishes and feelings about giving evidence, and the views of the child's guardian and, where appropriate, those with parental responsibility. We endorse the view that an unwilling child should rarely, if ever, be obliged to give evidence. The risk of further delay to the proceedings is also a factor: there is a general principle that delay in determining any question about a child's upbringing is likely to prejudice his welfare see Children Act 1989, s 1(2). There may also be specific risks of harm to this particular child. Where there are parallel criminal proceedings, the likelihood of the child having to give evidence twice may increase the risk of harm. The parent may be seeking to put his child through this ordeal in order to strengthen his hand in the criminal proceedings rather than to enable the family court to get at the truth. On the other hand, as the family court has to give less weight to the evidence of a child because she has not been called, then that may be damaging too. However, the court is entitled to have regard to the general evidence of the harm which giving evidence may do to children, as well as to any features which are particular to this child and this case. That risk of harm is an ever-present feature to which, on the present evidence, the court must give great weight. The risk, and therefore the weight, may vary from case to case, but the court must always take it into account and does not need expert evidence in order to do so.
27. But on both sides of the equation, the court must factor in what steps can be taken to improve the quality of the child's evidence and at the same time to decrease the risk of harm to the child. These two aims are not in opposition to one another. The whole premise of Achieving Best Evidence and the special measures in criminal cases is that this will improve rather than diminish the quality of the evidence to the court. It does not assume that the most reliable account of any incident is one made from recollection months or years later in the stressful conditions of a courtroom. Nor does it assume that an "Old Bailey style" cross examination is the best way of testing that evidence. It may be the best way of casting doubt upon it in the eyes of a jury but that is another matter. A family court would have to be astute both to protect the child from the harmful and destructive effects of questioning and also to evaluate the answers in the light of the child's stage of development.
28. The family court will have to be realistic in evaluating how effective it can be in maximising the advantage while minimising the harm. There are things that the court can do but they are not things that it is used to doing at present. It is not limited by the usual courtroom procedures or to applying the special measures by analogy. The important thing is that the questions which challenge the child's account are fairly put to the child so that she can answer them, not that counsel should be able to question her directly. One possibility is an early video'd cross examination as proposed by Pigot. Another is cross-examination via video link. But another is putting the required questions to her through an intermediary. This could be the court itself, as would be common in continental Europe and used to be much more common than it is now in the courts of this country."
"[the presence in court of the Guardians in the F Children's case during the fact finding hearing would enable the Guardians/court]… to keep under review whether or not, for example, if I decided against hearing the evidence from the children, I do not know whether I will or not, I have not decided that, but that might be something which will need to be kept under review, because it is possible that the way the evidence comes out suddenly an issue becomes very, very clear which needs to be resolved factually and it would be therefore helpful to the Court, if the Guardians relevant to all the children were able to give guidance, help, recommendations in respect of whether or not I should for example revisit the decision that I made earlier." (Transcript page 7).
"Well I think at some point a determination is going to have to be made in respect of the evidence of the children and it is probably better to do that in isolation at an earlier stage…"
Ms Steele relied upon the detailed submissions made in the context of Re W in her position statement. The transcript then continues:
"JUDGE WATSON: Well Ms Steele I am very pleased to see how you have set out it. You have set it out very clearly the concerns and the difficulties and indeed the contradiction in terms of the evidence. What I am struggling to see is how calling the children is actually going to improve his position. All of these matters can be dealt with in a written position statement as you have done, in oral submissions, because the one question that you cannot put to the child witnesses, is, 'You're lying aren't you'.
MS STEELE: I accept that. However, the Local Authority are reliant on the evidence given to a number of different sources of the truthfulness of that.
JUDGE WATSON: Yes.
MS STEELE: My client or me on my client's behalf have to be able to, in my submission, not put to them that they're lying but be given the opportunity to put to them the contradictions in their evidence.
JUDGE WATSON: Well I would not allow you to put the contradictions. You have got to bear in mind the age of the children-
MS STEELE: I of course-
JUDGE WATSON: -and their ability to deal with that sort of complex questioning. It is, the type of questioning which the, I am sure you are very familiar with the advocates tool kits and the gateway rules that apply in criminal proceedings that would apply in a case like this, and they set it out very clearly. I have just, for my own benefit, just summarised them as no repetitive questions, short questioning, no need to put the case, no tag questions, no comments. So all of the matters which you have properly put out, set out in this [inaudible], could not be put to the child witnesses.
MS STEELE: What, my understanding is that of course I can try and clarify the evidence they have given. Yes, I can't put certain things and I fully accept that but I can put to them certain inconsistencies or certainly ask them to clarify which they say is correct. That kind of thing. Excuse me.
JUDGE WATSON: Well and to what end that you have confused the witnesses, that is not going to help the Court in deciding where the veracity in truth is. The truth is by looking at the careful submissions that you have made and weighing those into the balance. I do not necessarily have to accept what a child says on an ABE interview.
MS STEELE: No.
JUDGE WATSON: I need to look robustly at what is said in the light of all the other evidence that I hear.
MS STEELE: My Lady I don't think there's very much else that I can add-
JUDGE WATSON: No.
MS STEELE: -with what I've already said in there and what I've said to you.
JUDGE WATSON: Yes.
MS STEELE: There's really nothing else I can add.
JUDGE WATSON: No.
MS STEELE: Unless you would like me to attempt to-
JUDGE WATSON: No, I, you have set it out extremely fully and I have very much in mind the need for a fair hearing but unlike in criminal proceedings, where the, it is assumed that children will give evidence. They give their evidence in a very, very truncated way and for example the ABE interview only such elements as are agreed are put before the jury. Whereas I will see the entirety of the ABE, I will see it warts and all if I can use that expression. So I will be much more susceptible to any suggestion that there are contradictions that are unclear, that it is [inaudible], I do not need that to be put to a seven year old or a nine year old or indeed a 14 year old who has the difficulties that B has."
The only other reference in the transcript appears some six pages later where the judge states:
"At this stage I am not agreeing that the children should give evidence. I am very alive to the need for a fair hearing and I will ensure that there is a fair hearing but … I cannot see that cross-examining the children would actually benefit the forensic process in terms of … the evidence of the children."
"I determined at an earlier Re W hearing that the children should not be required to give evidence and it has not been necessary to re-visit that decision."
a) The judge had not viewed the ABE interviews prior to the IRH and she was therefore not in a position to form a concluded view upon the issue of oral evidence from the children;
b) Despite the detailed submissions made by Ms Steele referring specifically to the various elements identified by Baroness Hale, the judge made no reference to those submissions (save to acknowledge their existence) and did not refer to Re W at all during the hearing;
c) In the circumstances the judge's consideration of the important question of the children giving evidence was wholly inadequate and could not be supported.
Children giving evidence: discussion
i) the possible advantages that the child being called will bring to the determination of truth balanced against;
ii) the possible damage to the child's welfare from giving evidence i.e. the risk of harm to the child from giving evidence.'
'(f) whether the case depends on the child's allegations alone;
(g) corroborative evidence;
(h) the quality and reliability of the existing evidence;
(i) the quality and reliability of any ABE interview.'
Child A: victim/perpetrator/party
"I then suggested that A had a further break and suggested a simple YES (indicating there had been sexually inappropriate behaviour involving A) or NO (there had not). I wrote the two words on a piece of A4 paper and left the room.
When I returned A and G had gone for a further break. They later returned with the A4 paper folded in half. On opening the paper, the word YES was ticked. …
G then explained that A sat with him on a bench outside during the break. G felt that A was so tense that he was physically unable to take the pen and make the mark himself. G held the pen above one answer and then the other and asked A which answer A wanted G to tick. A indicated YES and G ticked it.
[Solicitor] and I did not question A or G further. G stated he would inform A's key worker when he took over at 3pm.
I was aware that A's information would be disclosed to his parents on 3.11.15. A was due to have contact on 5.11.15. I agreed to phone the unit later to inform them that Mr and Mrs E will be aware of events following court on 3.11.15. …"
"It is argued on behalf of A through his children's guardian that his Article 6 rights have been infringed by this process because the particularisation of the threshold invites findings to be made against A as a perpetrator of abuse against the other children, it being suggested that this is inappropriate because he has had no opportunity to give instructions on these allegations. I do not accept that is correct. In family proceedings the court is making findings on the balance of probabilities in relation to a whole raft of evidence, which in this case derives from … [summary of sources of evidence] …and, so far as A is concerned, some direct work undertaken with him by his guardian and his support workers at the residential unit where he resides.
31. [description of cognitive assessments and that A was physically sick during his police interview].
32. I accept unreservedly the evidence of [A's guardian], an experienced guardian, that A appeared tense and exhausted when being called upon to give a steer as to whether anything sexually inappropriate had happened to him in the past or not. … [description of A during meeting with guardian and solicitor at the unit] … A has not wished to give evidence. No application for an adjournment was requested to enable this to happen. He has the benefit of a guardian and a solicitor and legal representation throughout the proceedings to ensure that the evidence is properly challenged.
33. I do not understand how his Article 6 rights have been in any way compromised by the greater particularisation of the threshold. This process does not change the evidence in any way. It is simply the means by which the local authority, as directed by the court, has marshalled its evidence. …"
a) 'within the family proceedings, A has never denied the allegations. What he has said is informative to my decision';
b) when the social worker informed him about the fact finding hearing 'he neither contradicted her nor sought to challenge what said against his father or himself';
c) he does not want to leave the residential unit and has said that this is because he feels safe there because of the staff;
d) 'he gave a clear affirmative to the question that there had been inappropriate sexual behaviour involving himself';
e) he has never sought to correct or challenge the allegations, which he knows about, during any discussion with his key worker at the unit;
f) in 2011, when aged 10, A 'disclosed' to his parents that he had been sexually abused by two of his uncles; A did not want the police involved and the parents took no action; the judge found that 'in all probability, A has been exposed to inappropriate behaviours by his two uncles within the family, and his parents failed to act in a protective way';
g) on 2nd September A was 'able to tell his key worker that what happened with the family members was bad. It happened more than once, that it had happened in another family member's home, and it made him feel not good' (It is to be noted that the judgment incorrectly sets this date as 2nd September rather than 2nd December).
'79. He has never sought to challenge the allegations made against his father or himself. He understands the case against him but offers no explanation, excuse or justification. He was very clear that he has personally has been involved with some sort of sexual abuse. It was bad and it involved family members and it made him feel "not good".'
The judge then refers to A's account in 2010/11 of being touched inappropriately by two of his uncles, before continuing:
'A has not made an allegation against this father but the decision he has taken ensures that he does not, as a child, return to his father's care. A has not sought to cut off all contact with his family but sees both his parents in a supervised session, the staff keeping him safe.'
Child A: Discussion
'The principle which runs through all these cases, and the many other cases which were cited, is that a man must be able to consult his lawyer in confidence, since otherwise he might hold back half the truth. The client must be sure that what he tells his lawyer in confidence will never be revealed without his consent. Legal professional privilege is thus much more than an ordinary rule of evidence, limited in its application to the facts of a particular case. It is a fundamental condition on which the administration of justice as a whole rests.'
i) The judgment wholly fails to acknowledge and then analyse the numerous and substantial deviations from good or acceptable practice which are evident at every stage of the police interaction with the three complainant children, both during the ABE interviews and by undertaking the 'fast-track' interviews thereafter.
ii) The application for the police officer to be called to give oral evidence should not have been refused (unless, on investigation, it was impossible to call the officer at any stage and on any basis during the hearing).
iii) The judge's analysis of the children's evidence is open to the valid criticisms made in support of the appeal. In particular the judge's approach to, and use of, the inconsistencies within the evidence of the three children fell well short of what was required.
iv) The judicial analysis of the formal and properly presented Re W application made by the appellant was so wholly inadequate and, in effect, simply was not undertaken. This, of itself, is an error of sufficient materiality to justify setting the fact finding decision aside.
v) A's right under ECHR, Article 6 to a fair trial and his right to the protection of legal professional privilege were breached to a substantial degree.
vi) The judge's analysis of the evidence of what A had said, together with his presentation, when being invited to address sexual matters was both confused and inadequate. There is a real risk that every aspect of what is recorded by the social worker, guardian and key worker in October, November and December 2015 relates entirely to his complaint of abuse by two uncles five years earlier. The potential for that to be the case was not taken into account by the judge and, in any event, the judge wrongly conflated evidence about that past abuse with the entirely separate recent allegations at a number of stages in her judgment.
Lady Justice Gloster:
Lady Justice Macur: