E (A Child)

Where a child complainant may be called in family proceedings, there is no presumption against oral evidence. The court must make a bespoke and recorded assessment which fairly balances the assistance that evidence may give in finding the truth against the risk of harm to the child. It must assess the quality of the existing evidence, including any challenged ABE interview, and decide the issue sufficiently early for proper preparation.

Material defects in the conduct, recording or later handling of ABE interviews require a full evaluation before the evidence can safely be treated as reliable. A vulnerable child who is accused of abuse is entitled to a fair process, including the protection of legal professional privilege. Findings must not rest on superficial treatment of inconsistencies or on a confused conflation of separate allegations of abuse.

The father appealed against fact-finding determinations made by HHJ Watson in care proceedings concerning his son, A. The proceedings also involved three children of another family, who alleged that the father and A had sexually abused them.

The allegations were investigated by police. The children underwent ABE interviews, but the police found no corroborative evidence and closed their investigation. At the Family Court hearing, the judge refused applications to call the complainant children and a police officer, then made extensive findings against the father and findings that A had been both victim and perpetrator.

The appeal concerned the reliability and handling of the ABE material, the approach to child witnesses, the assessment of inconsistent accounts, and A’s Article 6 rights and legal professional privilege.

1. Appeal allowed. All findings of fact were set aside. A retrial was left for the Family Court to determine and, if ordered, had to be conducted by a different judge.

2. The judge could not properly find the ABE material reliable without a full evaluation of substantial procedural defects. These included unrecorded preliminary questioning, no record of D’s absence from interview, leading questions, inadequate records, and later unorthodox fast-track questioning. The refusal to call the police officer merely because the request was late was wrong, absent clear evidence that the officer could not be called during the hearing.

3. The court applied Re W (Children) (Family Proceedings: Evidence) [2010] UKSC 12. A court considering whether a child should give evidence must conduct the required balancing exercise, rather than preserve an informal presumption against calling children. It must engage with the relevant factors, including the quality and reliability of the available evidence and any ABE interview. That assessment must be made well before trial. The judge had not viewed the ABE recordings, had not addressed the relevant factors, and had wrongly contemplated leaving the issue for review during the fact-finding hearing. That was a material Article 6 error.

4. The judge’s treatment of inconsistencies between the children’s accounts was inadequate. Different accounts could not be treated, without analysis, as mutual corroboration. In particular, an account containing no positive allegation could not corroborate the others.

5. A, as a vulnerable child party facing serious allegations, was entitled to the ordinary protection of confidential lawyer-client communications. The disclosure of the meeting arranged to obtain his instructions, and the role assumed by a key worker in obtaining an answer from him, gave rise to grave concerns. The judge also failed to distinguish possible evidence of earlier abuse by A’s uncles from evidence relevant to the separate current allegations. The resulting treatment of A’s Article 6 rights and evidence was substantially flawed.

• Court of Appeal (Civil Division) Allowed the father’s appeal, set aside all fact-finding determinations, and left any retrial to the Family Court.
• Family Court HHJ Watson, sitting as a Deputy High Court Judge, made the challenged fact-finding determinations on 5 January 2016 in care proceedings concerning A.