B (children) & Ors , Re

Failures to follow the Achieving Best Evidence guidelines when interviewing a child do not make the resulting evidence inadmissible in family proceedings. The judge must assess how each failure affects reliability and weight. Depending on its nature, a failure may have no effect or may reduce the evidence’s value almost to vanishing point.

An appellate court should rarely overturn findings based on a trial judge’s assessment of witnesses and the evidence as a whole. However, seriously flawed interview evidence may be incapable, without independent support, of sustaining a grave and relatively unlikely finding.

The parents appealed against findings made after a 14-day fact-finding hearing in care proceedings in York County Court. The judge found that the father had sexually abused his young daughter and her friend. He also found that the mother knew of the abuse and failed to protect her daughter.

The appeals principally challenged the reliability and weight of statements attributed to the children. One interview with the daughter had been conducted without video recording, without a full note of the questions and without other safeguards prescribed by the Achieving Best Evidence guidelines. The central issues were whether the trial judge had been entitled to rely on the children’s evidence and whether the findings against each parent were safely supported by the evidence as a whole.

1. Disposition. The father’s appeal was dismissed and the mother’s appeal was allowed. Latham and Carnwath LJJ agreed with Hughes LJ.
2. An appellate court should be slow to reverse findings resting on the trial judge’s assessment of witnesses. The trial judge sees and hears the witnesses, evaluates their reliability and considers the evidence as a whole. The written reasons cannot reproduce every matter of emphasis, weight, qualification and nuance that informed that evaluation. The trial judge was therefore entitled to accept the substance of the evidence given by two witnesses despite discrepancies in their chronology and recollection.
3. The interview with the daughter seriously departed from the Achieving Best Evidence guidelines. It was not recorded, the contemporaneous note omitted nearly all questions, and the professionals later disagreed fundamentally about whether leading questions had been asked. Where an unrecorded conversation may elicit relevant information from a child, the irreducible minimum is a full note of both questions and answers.
4. Non-compliance with the guidelines did not make the evidence inadmissible. The guidelines do not have the status of rules of evidence. Their purpose is to obtain the most reliable evidence possible, rather than to impose a disciplinary sanction. The judge must assess the evidence with all its defects and determine its value. Some failures may be immaterial, while others may reduce the evidence’s value almost to vanishing point. The protective context does not justify giving unsatisfactory evidence more weight than it can properly bear.
5. The finding against the father was justified. The flawed interview was consistent with independent evidence that both girls had been sexually abused, the friend’s attribution of the abuse to the father, and their joint sexualised play. The judge had recognised the interview’s defects and was entitled to evaluate the combined evidence. The appellate court could not re-evaluate that evidence on paper.
6. The finding against the mother was unsafe. Her alleged knowledge depended entirely on a short passage in the flawed interview. There was no independent supporting evidence, the questions were unknown, and the allegation had not been explored. That evidence alone could not sustain the serious and relatively unlikely conclusion that the mother had witnessed the abuse and failed to protect her daughter.

1. Court of Appeal (Civil Division): In [2006] EWCA Civ 773, the court dismissed the father’s appeal but allowed the mother’s appeal.
2. York County Court: His Honour Judge Wolstenholme found in care proceedings that the father had sexually abused two children and that the mother knew of the abuse and failed to protect her daughter.