W and F (Children), Re

Serious departures from the Achieving Best Evidence guidance may deprive a child’s recorded interview of any forensic weight. The court must assess the interview within the evidence as a whole. It must examine possible contamination, previous allegations, discussions between children and adults, inconsistencies, and the child’s reliability.

Medical signs which are consistent with abuse but are equally consistent with no abuse are not diagnostic. Without cogent supporting evidence, such equivocal findings cannot establish either abuse or the identity of its perpetrator. Findings of sexual abuse are unsafe where the principal interviews have minimal forensic value and the remaining evidence cannot satisfy the balance of probabilities.

X appealed against findings made by Recorder Moradifar after a 12-day fact-finding hearing in consolidated care proceedings involving seven children from two families. The recorder found that X had sexually abused three children, M, L and K, while dismissing similar allegations concerning three others.

The appeal challenged the reliability of the children’s evidence. The police investigation and the recorded interviews of M and L had departed substantially from the Achieving Best Evidence guidance. The appeal also concerned possible contamination, the children’s inconsistent accounts, M’s reliability, the absence of cross-examination, and equivocal medical findings.

The central question was whether the evidence was capable of supporting the findings that X had sexually abused M, L and K.

1. Appeal allowed. The findings that X had sexually abused M, L and K were unsustainable. No court could reasonably have made those findings on the evidence adduced before the recorder.

2. The Achieving Best Evidence guidance reflects specialist experience concerning how children perceive, recall and communicate their experiences. Perfection is not required, but courts must require a high investigative standard because deficient interviewing risks unfair and incorrect decisions with profound consequences.

3. The first recorded interviews of M and L departed seriously from the guidance. They lacked a proper rapport phase, meaningful ground rules and an opportunity for free narrative. The interviewer introduced the allegations through leading questions and repeatedly referred the children to earlier conversations. The interviews consequently had minimal forensic value, and the recorder was wrong to attach any weight to them. The approach in TW v A City Council [2011] EWCA Civ 17 was applied.

4. The recorder had not adequately analysed whether earlier conversations and discussions between the children and adults had contaminated the later accounts. L had previously made a materially similar allegation against M. M’s allegations against X required assessment alongside the allegations that M had himself abused other children, his inconsistent accounts, his established untruthfulness and the fact that he was not cross-examined. It was unsafe to rely upon M’s allegations or to use them as corroboration of L.

5. Although M’s second recorded interview largely complied with the guidance, it occurred after repeated defective formal and informal questioning. Its evidential weight was therefore limited, particularly given the serious doubts about M’s reliability.

6. The medical signs were consistent with abuse but were not diagnostic and were equally consistent with no abuse. The recorder went too far in treating L’s findings as supportive of abuse. K had made no allegation against X, and her equivocal physical findings alone could not sustain a finding that he had abused her.

Gloster LJ and Richards LJ agreed with Baker J.

1. Court of Appeal (Civil Division): The appeal was allowed and the findings that X had sexually abused M, L and K were set aside: [2015] EWCA Civ 1300.

2. Family Division sitting at Kingston-upon-Hull: Following a fact-finding hearing, Recorder Moradifar found on 14 November 2014 that X had sexually abused M, L and K. No neutral citation was stated.