Birmingham City Council v Mother v Ors

In a fact-finding application, failures to follow investigative guidance do not automatically exclude evidence or prevent findings. They may, however, substantially reduce the reliability and weight of accounts, particularly where early reporting was unclear or contaminated.

Allegations of sexual abuse must be assessed against the totality of the evidence. The absence of cross-examination is relevant but is not determinative. A finding that a parent imposed culturally contextual restrictions on a child does not, without more, establish significant harm for the purposes of Children Act 1989, s 31. Parents may nevertheless be expected to protect a young child from serious emotional harm caused by exposure to harmful online material.

The local authority sought care and supervision orders under s 31 of the Children Act 1989 in respect of four children. It alleged that C had been sexually abused by her brothers, A and B, and physically and emotionally mistreated by her parents. An alternative threshold was pleaded for C on the basis that she was beyond parental control.

The court conducted a fact-finding hearing. C did not give oral evidence. The central issues were whether the allegations were proved on the balance of probabilities, what weight could be placed on accounts obtained in breach of good practice and guidance, whether parental treatment caused significant harm, and whether C was beyond parental control.

1. Sexual-abuse allegations. The local authority failed to prove that either brother had sexually abused C. The court assessed the totality of the evidence, including the integrity of the accounts, inconsistencies, lack of contextual and experiential detail, digital material, and the possibility of fantasy. A useful analytical structure was to ask first whether sexual abuse had occurred and, only if so, whether the perpetrator could be identified. The first question was not established here (paras [152]–[159]).
2. Investigative failures. Breaches of good practice and the Achieving Best Evidence guidance did not render evidence inadmissible and did not make findings impossible. They did, however, materially affect the reliability and weight of the evidence. The absence of a contemporaneous, near-verbatim record, unclear questioning, leading questions, inadequate planning and potential contamination were particularly significant in this case (paras [45], [54]–[64], [152]–[155]).
3. Lies and corroboration. Applying the caution reflected in Hertfordshire CC v Ms T and Mr J [2018] EWHC 2795 and Re H-C [2016] EWCA 136, lies may be considered in assessing credibility, but they do not by themselves prove the allegations. The parents’ lies about the eldest son were not capable of corroborating the alleged abuse, although they remained relevant to the assessment of credibility (paras [143]–[148]).
4. Parental treatment. C had been treated differently from her brothers and had experienced significantly greater restrictions. In the cultural context of the family, that finding did not itself establish significant harm attributable to parental care under s 31. The allegations of physical abuse were also not proved (paras [164]–[165]).
5. Online harm and orders. C had suffered emotional harm through exposure to toxic and harmful digital material while in her parents’ care. Parents of a 12- or 13-year-old child may be expected to provide protection from such harm; the court was not imposing an unattainable standard of perfection. C was also beyond parental control, which independently enabled orders under s 31. Counsel were directed to draw up the appropriate order (paras [166]–[169]).