W (A Child), Re

In care proceedings, serious defects in interviews with children do not automatically make the evidence worthless. The court must assess the evidence as a whole, with appropriate care and caution, taking account of both the defects and the evidence’s remaining value.

Findings may be made on the balance of probabilities where the totality of the evidence, including flawed recorded interviews, establishes the allegations. A child’s welfare and Article 8 family-life rights require the court to determine whether the threshold of likely significant harm is met and whether the proposed care and placement orders are necessary and proportionate.

The local authority sought care and placement orders for W, aged 17 months. W had lived with his grandmother for his first four months before being placed in foster care under an interim care order. The proposed family placement was opposed because of concerns about the grandmother’s protective parenting and allegations that her 12-year-old son, N, had subjected three younger boys to sexual activity.

The court conducted a combined fact-finding and welfare hearing. The central issues were whether the allegations against N were proved despite serious shortcomings in the children’s ABE interviews, whether W would be likely to suffer significant harm in the grandmother’s care, and whether adoption was necessary and proportionate.

1. Fact-finding. The local authority bore the burden of proof, to be discharged on the balance of probabilities. The children’s ABE interviews were the only evidence concerning the allegations against N and contained suggestive and leading questioning. N had not been able to challenge the evidence by cross-examination. The evidence therefore required particular care and caution.
2. The defects did not deprive the interviews of all evidential value. Following the approach illustrated by TW v A City Council [2011] FLR 1597, Re B (Allegations of Sexual Abuse: Child’s Evidence) [2006] 2 FLR 1071 and Re R (Care Proceedings: Appeal) [2013] 1 FLR 467, the court had to weigh the evidence as a whole, with its defects fully recognised. The interviews contained sufficient spontaneous detail, consistency and indications of recollection of real events to support findings when considered together.
3. The allegations against N were proved. The court found that, at the age of 12, he had engaged three younger children in serious sexual activity, including oral sexual activity, masturbation and an attempted act of anal penetration.
4. The finding against N was a major factor in assessing W’s welfare, but the evidence about the grandmother independently established a high risk of significant harm. Although she had strengths in commitment and basic care, her understanding of the family’s difficulties was superficial and her history showed inadequate protection against sexual and emotional harm. Her heavy existing responsibilities and unstable family relationships would also overstretch her capacity to protect W.
5. W would therefore be likely to suffer significant harm if placed with the grandmother. The threshold was crossed. A care order was made so that the adoption plan could proceed. A placement order was also made because adoption was in W’s lifelong interests and was necessary and proportionate. The mother’s consent was dispensed with because W’s welfare required it.