T (Children), Re

Departures from Achieving Best Evidence guidance do not automatically make a child’s evidence incapable of establishing sexual abuse. Their significance depends on the nature and cumulative effect of the defects and the context in which the allegations emerged. A judge must assess prompting, the child’s condition, the absence of free recall or supporting detail, possible alternative explanations and the similarity of the allegation to abuse recently suffered from another source. Where the evidence is very weak, the judge must also explain why the alleged perpetrator’s denials are rejected. A finding cannot stand where the evidential process and the alleged perpetrator’s credibility have not been adequately analysed.

The father appealed from findings made by HHJ Williscroft in the Family Court at Derby on 14 November 2019 during care proceedings concerning three children. The judge found that the father had sexually abused his daughter, including by digital penetration and by encouraging her to engage in sexual intercourse. She also made findings of physical abuse, which were not appealed.

The appeal concerned whether the sexual findings were safely based on statements made during informal conversations and two police interviews. The father relied on prompting, defects in the interview process, the child’s tired and distracted condition, the surrounding abuse by the mother and W, and the absence of an adequate assessment of his credibility.

1. Disposition. The Court of Appeal, in the lead judgment of McCombe LJ with King LJ and Peter Jackson LJ agreeing, allowed the appeal and set aside all findings of sexual abuse made against the father. The unchallenged findings of physical abuse were unaffected.
2. Applicable approach. Failure to comply with Achieving Best Evidence guidance does not invariably make evidence incapable of proving sexual abuse. As recognised in Re B (Allegation of Sexual Abuse: Child’s Evidence) [2006] EWCA Civ 773, and referred to in Re J (A Child) [2014] EWCA Civ 875, the judge must assess the significance of the departures. Deficiencies may nevertheless be decisive when considered cumulatively and in context.
3. Assessment of the evidence. The allegation that the father encouraged the child to engage in sexual intercourse rested on an inadequately recorded conversation, was never repeated, and had no satisfactory evidential foundation. The allegation of digital penetration emerged only after a late prompt in a lengthy interview and was repeated eight days later only after further prompting. The interviews involved directed questioning of a tired, hungry and distracted child, contained no free narrative or meaningful supporting detail, and did not explore whether the account reflected dreams or reality. The allegation was also strikingly similar to abuse that the child had recently suffered from the mother and W.
4. Failure to analyse the process and credibility. In Re E (A Child) [2016] EWCA Civ 473, the court had stressed the need for a thorough analysis of the process by which allegations were obtained. That analysis had not occurred here. The judge had also failed to assess the father’s credibility or explain why his firm denials were rejected. In those circumstances the evidence was too weak to establish the allegations to the civil standard.

1. Court of Appeal (Civil Division). On 7 April 2020 the appeal was allowed and the findings of sexual abuse against the father were set aside.
2. Family Court in Derby. HHJ Williscroft made findings of fact and an order dated 14 November 2019 in care proceedings. The father appealed only the findings of sexual abuse.