Re S (A Child: Findings of Fact)

In care proceedings involving alleged sexual abuse, the court must rigorously analyse the evolution of the child’s accounts, the circumstances of the first disclosure, material discrepancies and possible contamination. A failure to comply with Achieving Best Evidence guidance does not automatically prevent findings of abuse, but the more serious the departures, the greater the caution required when assessing the interview.

Lies and damaged credibility cannot provide positive support for an allegation unless the court explains their connection to the alleged conduct. Brief, non-specific statements by a young or developmentally delayed child require cautious assessment and adequate reinforcement before grave findings are made. On appeal, findings may be remitted where the evidence could sustain them after proper analysis. Allegations should instead be dismissed where the available evidence is incapable of proving them.

The parents of a one-year-old child appealed against findings made by HHJ Edward Richards in care proceedings in the Family Court at Truro. The findings concerned the mother’s older daughter, who was alleged to have been sexually abused by the mother’s partner when aged five or six. The judge found digital penetration and sexual touching by the partner. He also found that the mother had witnessed an assault, failed to stop it and failed to report it.

The alleged abuse was reported through a series of statements attributed to the child. Her two recorded interviews followed a delayed and seriously defective Achieving Best Evidence process involving leading and forced-choice questions. The central issues were whether the judge had analysed the child’s evolving accounts and possible contamination with sufficient rigour, and whether the evidence could sustain the findings against either appellant.

1. The appeals were allowed. The findings against the mother’s partner were remitted for rehearing before another judge. The allegations against the mother were dismissed and could no longer form part of the welfare decision concerning the younger child.

2. The findings against the partner were not adequately supported by the judge’s reasoning. The court needed to chart the development of the child’s statements and analyse the background, the first accounts, the interview process and the later statements as distinct stages. It also needed to examine the precise circumstances of the initial disclosure, differences between the accounts and the possible influence of adult suspicion and investigation.

3. The Achieving Best Evidence process contained wholesale failures. There had been delay, no adequate contemporaneous note of the preparatory meeting, and blatantly leading or forced-choice questions. The process appeared directed towards obtaining repetition of an earlier account rather than discovering what, if anything, the child wished to say. Non-compliance with the guidance does not create an automatic bar to findings of abuse, but increasingly serious breaches demand increasingly careful scrutiny. The judge’s reasons did not justify even the limited weight he gave the interview evidence.

4. The judge also failed adequately to address possible contamination arising from parental acrimony, the carers’ beliefs, suggestive questioning and the attention received by the child when speaking about the partner. Statements made after the interview process began could not properly be treated in the same way as earlier statements. Nor did the partner’s lie about being at the mother’s home advance the abuse allegation without a finding that it was told to conceal sexual abuse.

5. The evidence against the mother was incapable of sustaining the findings. The child said nothing about her in either recorded interview. The case depended principally on brief, non-specific statements made at school shortly after the defective questioning. The mother’s lies, loyalty to her partner, vulnerability and relationship history damaged her credibility but did not provide positive support for the specific allegations. As the evidence would not change, those allegations were dismissed rather than remitted.

1. Court of Appeal (Civil Division): The appeals were allowed. The findings against the mother’s partner were remitted for rehearing, while the allegations against the mother were dismissed: [2023] EWCA Civ 346.
2. Family Court at Truro: HHJ Edward Richards found that the mother’s partner had sexually abused her older daughter and that the mother had witnessed abuse, failed to prevent it and failed to report it. No citation for that decision is stated.