Re C

Departures from the Achieving Best Evidence Guidance affect the weight of a child’s recorded interview rather than its automatic admissibility or reliability. Significant departures will usually reduce its weight and may, in an extreme case, deprive it of weight altogether. The trial judge must evaluate the interview’s compliance with the Guidance in the context of all the evidence.

Assessment of evidence and allocation of weight are primarily matters for the trial judge. An appellate court will interfere with findings of fact only where there is a very clear justification.

A court has a broad, fact-specific discretion to draw an adverse inference from a party’s failure to give evidence. There must first be a case to answer. A credible explanation may reduce or eliminate the inference, but an explanation found not to be credible does not prevent it.

In care proceedings concerning a 14-year-old child, the Family Court found that her father had neglected her and subjected her to verbal, physical and sexual abuse. The findings were based principally on the child’s recorded interviews, her disclosures to professionals, her notes and the father’s failure to attend the fact-finding hearing or give evidence.

The father appealed against the findings of verbal, physical and sexual abuse. He argued that departures from the Achieving Best Evidence Guidance made the child’s evidence unreliable and that the judge had wrongly drawn an adverse inference from his silence. A second ground, concerning the decision that the child should not give evidence, was withdrawn in light of Re E (A Child) (Family Proceedings: Evidence) [2016] EWCA Civ 473.

The central issues were the weight properly given to the recorded interviews and whether the father’s explanation for refusing to give evidence prevented an adverse inference.

1. Appeal dismissed unanimously. The trial judge had carefully evaluated the investigation, the child’s recorded interviews and the other evidence. There was no justification for appellate interference with her findings.

2. The central principle from Re P (Sexual Abuse: Finding of Fact Hearing) [2019] EWFC 27, endorsed in Re JB (Child: Sexual Abuse Allegations) [2021] EWCA Civ 4, was applied. The Achieving Best Evidence Guidance is advisory. Significant departures are likely to reduce the weight of an interview and, in an extreme case, may result in no weight being attached. The trial judge must consider the interview’s compliance with the Guidance in the context of all the evidence.

3. The first interview was not undermined by the child’s extensive use of notes. The judge was entitled to regard them as reminders supporting an unprompted narrative. In relation to the second interview, the delay, the unrecorded rapport and truth-and-lies discussion, and one leading question did not materially undermine the child’s account. The interviewing officer’s failure to challenge the child about additional allegations was also immaterial. Different accounts are not necessarily inconsistent accounts, and there were no substantial inconsistencies between the interviews.

4. Assessment of evidence and allocation of weight are matters for the first-instance judge. An appellate court will interfere with findings of fact only where there is a very clear justification. The judge knew the criticisms of the investigation, evaluated both recordings and considered the child’s inaccurate account of self-harm when it was brought to her attention.

5. The principles in Wiszniewski v Greater Manchester Health Authority [1988] PIQR 324 were applied consistently with R v IRC and another, ex p T.C Coombs and Co [1991] 2 AC 283, Re U (Care Proceedings: Criminal Conviction: Refusal to Give Evidence) [2006] EWHC 372 (Fam) and Re T and J (Children); A Mother v A Local Authority and others [2020] EWCA Civ 1344. The discretion to draw an adverse inference is broad and fact-specific. There must be evidence giving the silent party a case to answer, while a credible explanation may reduce or nullify the effect of silence.

6. The father had received a warning and an opportunity to give evidence remotely. The judge was entitled to find his stated reason for refusing to participate ridiculous and, in substance, not credible. She therefore acted lawfully in drawing an adverse inference which strengthened the evidential case against him.

1. Court of Appeal (Civil Division): Permission to appeal was granted on 21 February 2022. The father withdrew his second ground and proceeded with his challenge to the evaluation of the child’s evidence and the adverse inference. The appeal was dismissed unanimously.

2. Family Court at Guildford: HH Judge Nisa made findings of neglect and verbal, physical and sexual abuse against the father following a seven-day fact-finding hearing. She subsequently refused permission to appeal.