JB (A Child), Re (Sexual Abuse Allegations)

Failures to comply with Achieving Best Evidence guidance do not automatically prevent a court from relying on a child’s hearsay statements. Their nature and extent may, however, reduce the statements’ forensic weight to the point where findings of abuse cannot properly be made.

A reliable investigation should preserve early accounts, record preliminary discussions, include the recorded rapport and free narrative phases, avoid leading questions and assess whether an adult may have influenced the child. Pre-prepared notes cannot replace an uninterrupted free narrative. The court must evaluate every item of evidence in the context of the whole, including related allegations and evidence bearing on the child’s reliability. Where investigative deficiencies are irremediable and no court could properly make the findings sought, the findings should be set aside without a rehearing.

The mother appealed against findings made by HHJ Greensmith in care proceedings that she had sexually abused her son’s older half-sister, E. The findings rested principally on allegations first made several years after E had ceased living with the mother, four notes written before a recorded police interview, and statements made during that interview.

The initial inquiries and recorded interview departed substantially from Achieving Best Evidence guidance. There was no recorded rapport phase or free narrative. The interviewer instead read E’s pre-prepared notes and questioned her about them. A later interview concerning allegations against an uncle also disclosed prompting and pressure by E’s carers, and the judge declined to make findings against the uncle.

The central issues were whether the judge had adequately assessed the effect of those investigative failures and the whole evidential context, and whether the findings against the mother could safely stand.

1. Appeal allowed. The findings of sexual abuse in paragraph 11 of the Family Court’s order of 15 October 2020 were set aside. The other findings remained undisturbed, and the listed welfare hearing concerning the child’s long-term placement and contact could proceed.

2. Achieving Best Evidence guidance is advisory rather than a legally enforceable code. Even a substantial failure to observe it does not invariably prevent reliance on a child’s hearsay statements. The court must nevertheless assess the nature and cumulative effect of the departures when deciding what forensic weight the statements can bear. In this case, the investigation fell far below the required standard.

3. The initial allegation followed a leading question from the carer and was not fully recorded. A later preliminary discussion with professionals was lengthy, poorly documented and potentially contaminating. During the intervening period, the allegations were repeatedly discussed and the child wrote notes with encouragement from her carer. The carer’s honesty and benign motives did not remove the risk of inadvertent influence or confirmation bias.

4. The recorded interview lacked a recorded rapport phase and any free narrative. It consisted principally of the interviewer reading the child’s notes and asking questions about them. Pre-prepared notes were not permissible substitutes for an uninterrupted free narrative, nor were they justified as props under the guidance. The resulting statements carried extremely limited weight.

5. The judge also failed to evaluate the evidence as a whole. The later allegations against the uncle, the carer’s probable prompting of the note supporting those allegations, the pressure exerted during the later interview, and the implausibility of aspects of that account were relevant to the provenance and reliability of the earlier allegations against the mother. Those matters had to be considered before any conclusion was reached.

6. A rehearing was inappropriate. The child’s very young age at the time of the alleged events, the long delay, her history of lying and manipulative behaviour, and the scale of the investigative deficiencies meant that no court could properly make the findings sought by the local authority.

1. Court of Appeal (Civil Division): In [2021] EWCA Civ 46, the mother’s appeal was allowed and the disputed findings of sexual abuse were set aside. The remaining findings and the forthcoming welfare hearing were unaffected.
2. Family Court at Liverpool: HHJ Greensmith made findings on 15 October 2020 that the mother had sexually abused E, but declined to make findings concerning allegations against PB. Permission to appeal was refused by the judge.