TB v DB

In a family fact-finding hearing, allegations are determined on the simple balance of probabilities. Evidence of a young child’s alleged disclosure requires careful assessment where the child has been repeatedly questioned or prompted. Investigations must avoid suggestive questioning and should not ask a child to repeat what was said to another person. Evidence materially affected by such contamination may be wholly unreliable. The court must assess the totality of the evidence, including the reliability of the witnesses and the circumstances in which the allegations arose.

The father sought findings concerning allegations made by the mother during long-running proceedings about domestic violence, rape and sexual abuse of their son by the paternal uncle. The mother alleged that the father had failed to protect the child and that the uncle had abused him. The matter came before the court for a fact-finding hearing before determination of the child’s future residence.

The central issues were whether the alleged violence and sexual abuse occurred, whether the child’s apparent disclosures were reliable, and what findings should be made on the evidence.

1. Standard of proof. The court applied the simple balance of probabilities test required by Re B (Children) (Care Proceedings: Standard of Proof) [2008] 2 FLR 141.
2. Reliability of the child’s alleged disclosures. The recordings and other evidence were assessed in their full context. The child had been repeatedly and suggestively questioned by the mother and her friend. The court found that the risks of contamination were exceptionally high and rendered that body of evidence completely unreliable.
3. Investigation practice. The preliminary interview conducted by the police officer and social worker was seriously flawed. In particular, it was improper to ask the child to repeat what he had told his mother. Proper practice required the child to be asked what had happened or what he had experienced, without prompting. Continuing the discussion in the mother’s presence, while she prompted and held the child, further undermined the evidence.
4. Findings. On the totality of the evidence, the allegations of violence and rape against the father and uncle were untrue. The allegation that the uncle sexually abused the child, or behaved inappropriately towards him, was also untrue. The father was found to be a credible and reliable witness, while the mother was found to be an unreliable historian who had exaggerated or invented allegations and had acted to restrict the father’s contact.
5. The court did not determine whether the mother deliberately coached the child or whether her conduct caused him to make the allegations. It found that, whatever the cause, the evidence was unreliable and the mother’s conduct was contrary to the child’s best interests.