TW v A City Council & Ors

An Achieving Best Evidence interview that contains no meaningful free narrative and is driven by leading suggestions may have no evidential value. A fact-finding judge must assess it in the context of all the evidence.

Where a civil judge reaches a conclusion different from a criminal outcome, the judge must analyse the evidence available in each proceeding and explain the conclusion. On important disputed evidence, the judge should ordinarily hear the relevant witnesses and must explain why written evidence is preferred. Personal experience cannot replace an evidence-based assessment of a young child’s reliability.

In care proceedings under Part IV of the Children Act 1989, the county court found that TW had sexually touched LR, a young child. That finding was relevant to an alleged risk to TW’s niece, SW.

TW had previously been acquitted after the criminal judge directed the jury to return a verdict of not guilty at the close of the prosecution case. The principal evidence was LR’s recorded Achieving Best Evidence interview. The county court judge relied primarily on that interview, without hearing key adult witnesses about disputed evidence concerning LR’s clothing.

TW sought permission to appeal and, if granted, appealed against the finding. The central issue was whether the serious defects in the interview and the remaining evidence had been properly evaluated.

1. Appeal allowed. The finding that TW sexually touched LR was set aside. Permission to appeal was granted because the recorded interview was seriously flawed.
2. The interview had no evidential value. It lacked any genuine free narrative from the child. The police officer introduced the material propositions, including the child’s sadness, the removal of clothing and the alleged touching, and repeatedly used leading questions and praise. The interview was used to obtain a repetition of what the child had reportedly told her mother, rather than an independent account. That was contrary to the purpose of the Guidance.
3. A civil judge may reach a conclusion on the balance of probabilities different from a criminal jury’s conclusion. But a judge relying on an unsatisfactory interview must conduct a clear analysis of all the evidence, explain the relevance of the criminal rulings, and identify why the evidence in the two proceedings justifies a different result. The judge did not do so.
4. The judge should have heard the key adult witnesses on the disputed issue whether LR’s knickers were wet or dry. In a fact-finding hearing, the judge has a quasi-investigatory and interventionist role. Where an important disputed finding rests on written evidence, the judge must explain why one account is preferred; it was insufficient to leave the rejection of TW’s evidence to inference.
5. The judge also erred by disregarding LR’s criminal-trial evidence through reliance on her own experience as a grandmother. The reliability and competence of a young child’s evidence must be assessed from the evidence and the proper judicial analysis, not personal experience.
6. The allegation concerning LR was peripheral to the care proceedings about SW. It was therefore not remitted for rehearing. Any perceived risk could, if necessary, be addressed by injunctions or undertakings.

• Court of Appeal (Civil Division): allowed TW’s appeal and set aside the factual finding.
• Brighton County Court: Her Honour Judge Norrie, in care proceedings, found that TW had sexually touched LR.