S (A Child), Re

Initial questioning before a formal Achieving Best Evidence interview is not inherently improper and is not confined to listed examples. It must preserve due process, accurate recording and protection against inappropriate influence. Detailed discussion of the alleged facts should be rare and should not displace a full recorded interview.

Interview shortcomings do not automatically make a child’s evidence unreliable. The trial judge must assess the recordings, the questioning and the evidence as a whole. A family judge need not give a formal Lucas direction about lies, although consideration of alternative motives for lies may assist. An appellate court will not interfere with a permissible evaluative assessment of credibility and reliability.

The stepfather appealed findings made by a Recorder in the Edmonton County Court during a private-law split hearing concerning an eight-year-old child’s welfare. The Recorder found that he had sexually assaulted the child by digital penetration, as well as making findings of physical abuse and false allegations; only the sexual-assault finding was challenged.

The appeal alleged inadequate analysis of family influence and possible coaching, undue reliance on a discussion before the formal Achieving Best Evidence interviews, improper reliance on social-work and paediatric evidence, and inadequate treatment of the stepfather’s lies. The child’s residence with her father was not challenged.

1. Appeal dismissed. Ryder LJ, with whom McFarlane and Rimer LJJ agreed, held that the Recorder was entitled to find that the stepfather had sexually assaulted the child. Her lengthy analysis addressed the family conflict, questioning of the child by relatives, and the possibility of coaching. She had not reversed the burden of proof by considering whether there was evidence that the child had been coaxed or unduly influenced.

2. A discussion before a formal ABE interview was not inherently objectionable. Initial questioning might be necessary beyond the examples given in the guidance, provided that due process and safeguards against influence were maintained. However, detailed discussion of the alleged facts, rather than identifying whether an allegation was made and against whom, should be rare. The guidance in [2006] EWCA Civ 773 and [2011] EWCA Civ 17 remained good practice.

3. The pre-ABE discussion did not undermine the evidence. Although the social worker had inappropriately sought more detail than was appropriate and used terms of endearment, he had not asked leading questions or introduced the child’s description of the stepfather. The Recorder could therefore regard the discussion as not damaging to the integrity of the evidence and as potentially supportive. Her assessment of the ABE recordings as compelling evidence was within her broad evaluative judgment.

4. The Recorder could consider the paediatrician’s and social worker’s opinions, while cross-checking them against her own observations of the recordings. She properly gave less weight to opinions which might rest on experience rather than research not tested by the parties. Neither expert had usurped the judicial function.

5. A family judge need not give a formal direction derived from (1981) 1 QB 720 concerning possible innocent motives for lies. Such a direction may assist in an appropriate case. Here, the Recorder’s failure expressly to explore the stepfather’s motives for lying was not fatal, given her overall conclusions on the child’s reliability and his credibility.

• Court of Appeal (Civil Division): Dismissed the stepfather’s appeal against the Recorder’s finding of sexual assault: [2013] EWCA Civ 1254.
• Edmonton County Court: Ms Recorder Genn made findings of sexual and physical abuse and granted the child’s father a residence order. The sexual-assault finding was upheld on appeal.