W (fact-finding)

In fact-finding proceedings concerning alleged child sexual abuse, findings must be based on evidence and not suspicion or speculation. The court must evaluate all evidence together, including evidence which supports and undermines the allegations, while considering inherent probabilities and the possibility of an unknown cause. A child’s hearsay evidence requires careful assessment because it has not been tested in cross-examination. Repeated, leading or improperly recorded interviews may substantially reduce the evidential weight of what is said, although non-compliance with interview guidance does not automatically make evidence inadmissible. Retractions require specific and balanced consideration, but neither retractions nor allegations should be accepted or rejected mechanically. Local authorities must provide accurate, complete and balanced information to the court, particularly when seeking urgent removal of children.

Luton Borough Council sought care orders and findings of serious sexual and physical abuse concerning five children. The proceedings followed earlier fact-finding decisions in the Luton County Court, findings made by HHJ Davies, and appeals which set aside the sexual-abuse findings and remitted those issues for rehearing. The case was complicated by extensive disclosure failures, missing and destroyed records, disputed accounts of interviews, and allegations that social workers and other professionals had improperly questioned vulnerable children.

The court considered allegations against the father, mother, B and V, including sexual abuse, physical abuse, failure to protect, emotional harm, grooming and alleged pregnancies. The central issues were whether the allegations were proved on the balance of probabilities and what weight could safely be given to hearsay, retractions, ABE interviews and evidence obtained after repeated questioning.

1. Applicable principles. The local authority bore the burden of proof and had to establish each fact on the balance of probabilities. Findings could not be based on suspicion or speculation. The court had to assess the evidence as a whole, including inherent probabilities, contemporary documents and the possibility of an unknown cause: Re B [2008] UKHL 35; Re A (A child) (Fact finding hearing: Speculation) [2011] EWCA Civ 12; Re R (Care proceedings: Causation) [2011] EWHC 1715 (Fam).
2. Where a child’s evidence stood only as hearsay, the court had to take account of the absence of cross-examination. A child’s account could be built from documentary and other evidence, but its weight depended on the circumstances in which it was obtained: Re W [2010] UKSC 12.
3. Interviewing guidance was directed to obtaining reliable evidence. Interviews should be prompt, open-minded, non-leading, carefully recorded and limited in number. Repeated questioning, prompting, praise, discussion of allegations outside the formal interview and the use of untrained interviewers could contaminate evidence and reduce its weight. Non-compliance did not automatically make evidence inadmissible; the court had to assess the resulting evidential value on the facts: Re E (A minor) (Child abuse: Evidence) [1991] 1 FLR 520; Re M (Sexual abuse allegations: Interview techniques) [1999] 2 FLR 92; Re D (Child Abuse: Interviews) (1998) 2 FLR 10; Re B (Allegations of Sexual Abuse: Child’s Evidence) (2006) 2 FLR 1071; TW v A City Council (2011) EWCA Civ 920.
4. The court accepted the guidance that retractions required careful and specific consideration. A retraction could coexist with a genuine allegation, but multiple retractions made in different contexts could materially undermine the allegation: Re W (Fact-Finding Hearing: Hearsay Evidence) (2013) EWCA Civ 1374.
5. The court found that the allegations against the father, B and V were not proved. It also rejected the allegation that the mother hit C with a rolling pin, the grooming allegation, the failure-to-protect allegation as framed, and the alleged threat to kill. The earlier unappealed findings remained undisturbed.
6. The court found that C’s evidence had been seriously contaminated by prolonged and repeated questioning, leading questions, inappropriate disclosure of other allegations and inadequate recording. It found that T’s allegations were outweighed by the numerous retractions, counter-pressures and other evidential difficulties.
7. The local authority’s failures were grave. Accurate and complete evidence was essential when seeking emergency removal and interim care orders. The court directed attention to the need for a Serious Case Review and urgent reconsideration of C’s existing care order, which had been made on incomplete evidence.

The judgment records that earlier sexual-abuse findings made by HHJ Davies at Luton County Court were set aside by the Court of Appeal and remitted for rehearing. This judgment determined the remitted fact-finding issues at first instance. The earlier unappealed findings were not revisited.