B (Children)

On an appeal against a family fact-finding decision based on a recorded child interview, the appellate question remains whether the judge was plainly wrong. The absence of live oral evidence may permit inspection of the recording, but it does not permit a rehearing of part of the evidence or substitution of a fresh view of reliability.

A judge may accept reliable parts of a child’s account while rejecting portions affected by suggestive questioning. The absence of independent or physical evidence is not necessarily fatal. Expert credibility scales do not replace the legal test: allegations must be proved on the balance of probabilities, neither more nor less, as confirmed by [2008] UKHL 35.

The case arose from care proceedings concerning eight minor children. The applicant, a family friend aged approximately 16 or 17 at the hearing, had been permitted to intervene. Mr Justice Roderic Wood found that he had engaged in inappropriate sexual behaviour with one of the children, aged nearly nine, principally on the basis of her recorded police interview.

The child had made no initial allegation about the applicant, and parts of the questioning were suggestive. There was no independent or physical evidence identifying him. The applicant challenged the finding, arguing that the interview was unreliable, that the judge had failed to assess all the evidence together, and that he had wrongly treated an expert’s qualitative credibility assessment as satisfying the civil standard of proof. The central issue was whether the judge’s finding was plainly wrong or showed an error of approach.

Disposition

Lord Justice Hughes gave the principal judgment. Lord Justice Thomas agreed. The application for leave to appeal was refused.

1. Appellate review. The challenge concerned a finding of primary fact, not an exercise of discretion. The applicable test, identified in G v G (Minors: Custody Appeal) [1985] FLR 894, was whether the judge was plainly wrong. Although the child had not given oral evidence and the appellate court could view the recording, that did not justify a rehearing of one fragment of the evidence. The trial judge remained responsible for assessing the interview in the context of the evidence as a whole. The judge’s lack of the usual advantage of seeing and hearing live evidence did not remove the appellate restraint required by the test (paras [11]–[12]).
2. Assessment of the child’s account. The judge was entitled to distinguish the part of the interview affected by suggestive questioning from the remaining account. The child’s spontaneous introduction of the applicant, her distinction between his conduct and that of her brother, and the particular detail and evident distaste in her description provided a basis for accepting the account on the balance of probabilities. The absence of independent evidence did not prevent that conclusion (paras [12]–[13]).
3. Structure of reasons. The judge was required to consider the evidence together, but the order in which the judgment discussed the child’s account and the applicant’s denial did not demonstrate that the denial had been overlooked (para [14]).
4. Expert evidence and standard of proof. Whether the allegation was proved was entirely for the judge. An expert’s seven-point scale, including categories such as probably true and very probably true, did not reflect the legal standard or authorise the expert to decide the issue. The correct standard was the balance of probabilities, neither more nor less, as restated in In Re B (Children) [2008] UKHL 35. The earlier approach reflected in Re H and R (Child Sexual Abuse: Standard of Proof) [1996] 1 FLR 80 and the passage from Hornal v Neuberger Products Ltd [1957] 1 QB 247 was more favourable to the applicant than the current law required (paras [15]–[16]).
5. The judge made no material error of approach and his conclusion could not be characterised as plainly wrong. The application was therefore refused (para [17]).

• Court of Appeal (Civil Division): Refused the applicant’s application for leave to appeal against the finding of inappropriate sexual behaviour. [2008] EWCA Civ 1037.
• Principal Registry of the Family Division: Mr Justice Roderic Wood made the challenged finding in care proceedings. The judgment’s citation is not stated in the judgment.