Y and E (Children) (Sexual Abuse Allegations), Re

Allegations of child sexual abuse in family proceedings are determined by the unqualified civil standard: the simple balance of probabilities. The allegation’s seriousness and its consequences do not alter that standard, although inherent probabilities remain relevant.

When evaluating a child’s recorded interviews, the court must consider the Achieving Best Evidence guidance and any departures from it. Non-compliance does not automatically deprive an interview of evidential value. Its effect depends on the nature of the deficiencies, the extent of free narrative, the form of questioning, the child’s experiential detail and the evidence as a whole. An appellate court should respect the trial judge’s evaluation of facts, inferences and witness evidence unless satisfied that the decision was wrong.

The father appealed against findings made by HHJ Handley in care proceedings under Part IV of the Children Act 1989. The judge found that the father had repeatedly sexually abused his daughter, Y, and made related findings concerning domestic abuse and failures to protect her.

Y’s allegations were principally recorded in three Achieving Best Evidence interviews. The father argued that the judge had inadequately directed himself, failed to assess significant breaches of the interview guidance, mishandled evidence suggesting maternal influence, and made further errors when evaluating the witnesses.

The central issues were whether the interview deficiencies undermined the findings and whether the judge’s treatment of the evidence justified appellate intervention.

1. Appeal dismissed. The father had not shown that the trial judge was wrong. The findings were available on the evidence, particularly Y’s compelling recorded account.

2. The governing standard for findings under the Children Act 1989 is the simple balance of probabilities. Neither the seriousness of an allegation nor the seriousness of its consequences changes that standard. Inherent probabilities may nevertheless be considered when deciding where the truth lies, applying Re B [2008] UKHL 35.

3. The general principles collected in Devon County Council v EB [2013] EWHC 968 (Fam) are an aide-memoire, not an exhaustive statement of every principle relevant to a care case. In a sexual abuse case, the judge must also apply the Achieving Best Evidence guidance and the authorities concerning it.

4. The three interviews contained significant departures from that guidance. There was no recorded planning, no proper recorded rapport phase, the truth-and-lies discussion occurred off camera in the first two interviews, and the officer improperly encouraged Y to speak during the third interview. Conversely, the first two interviews contained substantial free narrative. The follow-up questions were largely sensitive and appropriate, and Y supplied considerable experiential detail. Although the third interview lacked free narrative and included inappropriate encouragement, the account of abuse came from Y rather than the officer.

5. Non-compliance with the guidance did not make the interviews valueless. The deficiencies had to be evaluated in context. The interviews contained significant evidence upon which the judge was entitled to rely. Y’s repeated factual observations, recollection of her feelings and striking description of ejaculation were more consistent with experience of abuse.

6. The judge had the relevant guidance in mind, watched the recordings twice and considered the evidence as a whole. His failure to identify every deficiency expressly was undesirable but did not invalidate the assessment. Nor did the omission of express discussion of every evidential point establish that it had been overlooked.

7. An appellate court should not interfere with findings of primary fact, evaluations of fact or resulting inferences unless compelled to do so. The trial judge had the advantages of observing the witnesses and the recorded interviews within the full evidential setting. His assessments of Y, the father, the mother and the grandmother were properly within his province. Underhill LJ and Sir Patrick Elias agreed with Baker LJ.

• Court of Appeal (Civil Division): The father’s appeal was dismissed. The court upheld the findings of sexual abuse and associated findings made in the care proceedings: [2019] EWCA Civ 206.
• Family Court at Northampton: HHJ Handley, by judgment dated 20 December 2017 and order dated 8 January 2018, made findings under Part IV of the Children Act 1989, including that the father had sexually abused Y. No citation is stated.