W (Fact Finding: Hearsay Evidence)

Hearsay evidence is admissible in children proceedings, but its weight must be assessed critically in the context of all the evidence. Where an absent adult witness is central to the allegations, the court must be informed why direct evidence cannot be obtained and must consider available measures to secure it. Those reasons are material when estimating the weight of hearsay under Civil Evidence Act 1995, section 4.

A retraction requires careful and specific evaluation, especially where the complaint is proved only by hearsay. A fact-finding judgment must identify the evidence supporting the finding, evaluate it against the evidence pointing away from it, and explain why the burden of proof is met.

In care proceedings concerning five children, Her Honour Judge Davies found that the father had sexually abused the eldest adult child, T, and one of the subject children, C. She also found that the mother knew of the abuse of T and failed to protect the children. The parents appealed those findings and related findings.

T neither provided the statement previously directed nor attended the fact-finding hearing. The local authority relied principally on social-work evidence recounting her allegations, including an old social-work note recording information said to have originated many years earlier. T had also signed letters retracting her allegations. The central issue was whether the judge had evaluated that hearsay evidence, and the retractions, sufficiently and transparently.

1. Appeal allowed. Black LJ, with whom Davis and Arden LJJ agreed, set aside the sexual-abuse findings concerning T and C, the finding that the mother knew of abuse of T and failed to protect the children, and the associated findings about pressure to withdraw allegations. The matters were remitted for a rehearing before a different judge.

2. The court did not question the admissibility of the hearsay. Its error was the inadequate evaluation of weight. The old account had passed through several hands, was recorded about 13 years after the alleged events, lacked context and supporting detail, and was contradicted by the only witness to give direct evidence on it. Accepting that the note accurately recorded what T said did not address those limitations or establish the weight to be given to it.

3. T’s recent allegations were the lynchpin of the local authority’s case. Although direct evidence may sometimes be impossible, an adult witness whose evidence is central would normally be expected to give evidence. The court had to know why a statement or attendance could not be secured when estimating the weight of hearsay under section 4 of the Civil Evidence Act 1995. Available measures, including special measures, video link, a witness summons, or an ABE interview, had not apparently been considered.

4. The signed retraction letters required careful and specific consideration. A retraction does not prevent a judge accepting the original complaint, but the reasons must show that it has been given proper weight. This was particularly important because the allegations were before the court only as hearsay.

5. It was not enough that the trial judge had managed the case and heard extensive evidence. The judgment had to reveal the evidence regarded as supporting abuse, its critical evaluation against evidence undermining that conclusion, and why the local authority had proved its case. It did not do so with sufficient clarity. The finding concerning C either was, or might have been, influenced by the unsound finding concerning T and therefore could not stand.

• Court of Appeal (Civil Division): In [2013] EWCA Civ 1374, allowed the parents’ appeals, set aside the identified findings, and remitted the relevant factual issues for rehearing before another judge.
• Luton County Court: Her Honour Judge Davies made findings on 21 June 2013 in care proceedings that the father had sexually abused T and C, and that the mother knew of the abuse of T and failed to protect the children.