S (A Child), Re

S was born on [a date in] 2005. She is 8 years of age and has lived with her father since 3 June 2011. Her parents are separated and her mother lives with S's step father who is the appellant. S's step father appeals the decision of Ms Recorder Genn in the Edmonton County Court on 26 November 2012, when findings of fact were made against him. The adults are all parties to the proceedings. S was joined as a party to the proceedings on 25 January 2012 and is represented by a children's guardian. On 24 June 2013 we dismissed the appeal with reasons to follow.

The proceedings in the Edmonton County Court were concerned with the welfare arrangements for S and involved the determination of the following allegations which were made by S's father:

These allegations were found by the judge to have been proved. Other facts in issue between the parties were not found to be proved although the judge did find that there had been incidents of harassment of the mother and step father in July and November 2010. The proceedings were heard over seven days in late September and early October last year. The judge heard oral evidence from the child's mother, father, step father and from a maternal grandfather and a maternal aunt. She also had the benefit of being able to watch and listen to the DVD recordings of the child's 'Achieving Best Evidence' (ABE) interviews and to hear the oral evidence of the police officer and a social worker who had been involved in the investigation of the allegations and a paediatrician on expert issues.

The proceedings were heard as a private law 'split hearing' and the jurisdiction of this court to hear the appeal was not argued given the central position the findings had to the legal consequences which followed for the child's residence and contact with her mother. Ultimately, S's mother did not oppose the residence order which was granted to S's father in accordance with the recommendation of the guardian. Neither the residence order nor the findings relating to physical abuse and harassment are challenged before this court. This appeal relates only to the finding that S's step father sexually assaulted her.

The grounds of appeal were as follows:

The context of the proceedings was that after S's parents had separated and divorced, S's mother married S's step father. S's father made an application for contact with her after a period of some ten months when he did not see her. The history of the proceedings includes an issue about whether S had over-stayed with her father after a contact visit. The maternal aunt who gave evidence to the court alleged that S had told her about the step father's physical abuse. At that stage, the court ordered the return of S into the care of her mother and father applied for a residence order. In his application he raised the allegations of physical abuse which were also reported to the police. The police visited S who told them that she had been hit by her step father and she was interviewed (the first ABE interview) on the same day. S's step father denied the allegations to the police.

Within the proceedings, the local authority were directed to prepare a report under section 7 of the Children Act 1989 (CA 1989) arising out of the section 41 inquiries they had or were undertaking. The police discovered that the step father had been convicted on 29 August 2007 for the indecent assault of a 17 year old male in 2004. S moved from her mother's to her father's care on 3 June 2011 and mother was prohibited from removing her from the care of the father.

At that time, S's father lived in the house of the maternal grandmother with the consequence that S was living with her maternal grandmother at a time when she was not permitted to live with her mother. The family conflict is obvious. Whether impliedly or overtly, the role of the maternal family in support of the father and in opposition to the mother and her new husband was a feature of the circumstances before the court.

On 29 July 2011 father contacted the social worker to inform him that on the previous evening S had told her grandmother that she had been sexually assaulted by her step father. On 4 August 2011, the social worker attended the maternal grandmother's house and had a discussion with S which has been referred to before this court as the 'pre-ABE interview'. A handwritten note was made of this discussion. A second ABE interview was conducted on 10 August 2011. S was medically examined on two occasions as a consequence of the investigation into this allegation. On 18 August 2011 the examining doctor concluded there was evidence of the disruption of S's hymen and on 3 November 2011 she concluded that there was no physical evidence of penetration. It is submitted that the effect of this is that the medical investigations are evidentially neutral.

The police investigation did not result in S's step father being charged with an offence. Accordingly, it is submitted on behalf of the appellant, the finding of sexual assault relies upon the unsupported evidence of a five year old child in the context of the conflicts and divided loyalties among the extended family. The respondent father opposes the appeal and submits that all of the matters raised on the step father's behalf were properly canvassed in the county court where the step father in common with the other parties was represented. The judge accepted the child's accounts and disbelieved the mother and step father. She was entitled to do so given her careful assessment of the witnesses and the evidence, including the ABE and pre-ABE records of interview. The children’s guardian provided helpful written submissions and in the circumstance that she had not been present at the fact finding hearing, remained neutral about the findings made by the court.

The first ground of appeal relates to the judge's treatment of the background or context of the allegations. It is undoubtedly right that on 7 September 2011 at an initial child protection conference an officer of the local authority said “Investigations have been continuously hampered by allegation, counter allegation, speculation and deceit by family members”. In the short space of time between a record held by her school dated 9 May 2001 and the record of the pre-ABE interview with the social worker on 10 June 2011, S had changed the way she referred to her step father from “dad” to “bad man”, a description she used for him in both ABE interviews. The judge found as a fact that everything was discussed in front of S in the maternal family and that the maternal family closely questioned S about whether she had been touched to the point that she had asked them to stop questioning her. The judge found that the maternal aunt's denials relating to these discussions lacked credibility. There was also a question about whether the maternal grandmother had previously encouraged a maternal aunt to make what was said to be a false allegation against her own father.

All of these questions were appropriate and potentially powerful cross examination material. There is no suggestion that counsel for the step father was inhibited or discouraged in any way from pursuing them. The judge's findings represented a conclusion that inappropriate matters were discussed with S in the maternal family. She was appropriately critical of them. The judge considered very carefully the question that was before her, namely whether as a consequence of that background, the reliability and credibility of S's own evidence was adversely affected. She concluded that:

“it is incredible to suggest that the various members of extended family that were living with [the maternal grandmother] did not discuss what was happening with their sister / sister in law. It was precisely because of that concern that [father] was encouraged to move out of that household. However, animated and even heated discussions notwithstanding there is no good evidence that indicates that [S] was being coaxed, coached or unduly influenced too (sic) make up things that she said had been done by [her step father]”

There is a criticism in the submissions made to this court that the judge was (impliedly) looking for positive evidence of coaching and that this might have had the effect of reversing the burden of proof so that the step father had to exculpate himself. I do not accept that criticism as a description of the analysis actually conducted by the judge which was to look at the reliability and credibility of the information and witnesses before her. Further, I do not accept that the judge's characterisation of the influences upon S was too narrow a consideration of all of the background material known to the judge. The judge’s treatment of the evidence ran to 37 close typed pages and 127 paragraphs. Her analysis was far from superficial.

The second ground of appeal relates to whether the interview and preparation process for the ABE interviews was sufficiently robust to enable the DVD and written records to be taken as a source of reliable evidence. The relevant guidance is 'Achieving Best Evidence in Criminal Proceedings: Guidance on interviewing victims and witnesses, and guidance on using special measures’, March 2011. It is common ground that the judge was referred to an earlier version from 2007 but nothing in this appeal turns on the textual differences between the versions. The point in issue is whether the judge was right to place reliance on what has been called the 'pre-ABE interview' when such an information gathering device is not known to the guidance. It is submitted that such an interview is not good practice. The opportunity for inappropriate influence is obvious.

The guidance sets out for investigators at paragraph 2.4 the recommended initial contact with victims and witnesses. A 'pre-ABE interview' is not referred to. The guidance contains the suggestion that there may be 'initial questioning' and that initial questioning may be necessary. Three non-exclusive examples are given: where the need for a video interview is not immediately apparent, where there is a need to take immediate action in terms of securing medical attention or in making initial decisions about the criminal investigation plan. At paragraph 2.5 the authors of the guidance recommend that “any initial questioning should be intended to elicit a brief account of what is alleged to have taken place”. At paragraphs 2.5 and 2.6 the guidance sets out suggested limits to the content of initial questioning and the essential precautions to ensure that due process including accurate recording are preserved and inappropriate influence is avoided.

The submission which is made to this court is that such questioning is not intended to obtain an account from the child. Put in that absolute form the submission cannot be right in all circumstances. Furthermore, initial questioning need not be limited to the three examples given provided that due process and the precautions of good practice are maintained. This is not the place for an analysis of the guidance and the research from which it is drawn. There is nothing inherently wrong with the discussion which took place in this case although with the benefit of experience of many similar cases I would suggest that discussions about the facts in issue in respect of an allegation as distinct from whether and what allegation is being made against whom, should be rare and should not be a standard practice which avoids the purpose of a full ABE interview where the recording can pick up the nuances of suggestion and demeanour. This court’s guidance in Re B [Allegation of Sexual Abuse: Child’s Evidence] [2006] EWCA Civ 773, [2006] 2 FLR 1071 and TW v A City Council [2011] EWCA Civ 17, [2011] 1 FLR 1597 and the Cleveland Report recommendations at paragraph 12.34 remain good practice.

In this case the judge watched the DVD recordings of the two ABE interviews on two occasions: before and after hearing oral evidence. The judge’s assessment of those interviews forms the basis of her findings. That reflects the purpose of an ABE interview. It allows the court to make an assessment of credibility and reliability by reference to what a child complainant actually says and the way she says it. The interviewers can be cross examined about their interview technique as they were here. There is a body of jurisprudence relating to the structure of an interview, its preparation and the best practice for its conduct and how any failings should be dealt with by the court. There is no suggestion in this court that the interviews were not analysed before the court below. There are criticisms of the interview technique but in my judgment, nothing that is fatal to the interviews as evidential material. There was no application in this case that S be cross examined in a similar recorded setting or by the use of a video live link and no suggestion in this court that such a step was necessary or appropriate in this case. Having properly reminded herself of the burden and standard of proof, the judge came to the conclusion that the interviews were:

“the most compelling evidence both in words and significantly actions”.

The judge was entitled to come to that conclusion. All three members of this court have separately viewed the ABE interviews and have separately concluded that the judge’s view of the interviews was within the broad evaluative judgment of reliability and credibility to which the judge was entitled to come. The second interview was undoubtedly too long and S becomes exacerbated by this but in my judgment the judge is entitled to her assessment of that evidence which is that S, through words and gestures, is making a cogent allegation of digital penetration by her step father.

The only real point under this ground of appeal is whether the pre-ABE interview on 4 August 2011 undermines the judge’s conclusion to the extent that the judge is wrong. The judge heard from the social worker who conducted the 4 August interview. He was an experienced and trained ABE interviewer. He was cross examined as to various errors in his approach. He used inappropriate forms of endearment on two occasions and without doubt he asked about greater detail than was appropriate at this stage, that is he should have limited himself to ascertaining that there was an allegation, the nature of the same and the person against whom the allegation was made. That said, he did not use leading questions and he did not introduce the description of the step father as ‘the bad man’, it was S who volunteered that at the beginning of the interview.

The judge examined these questions and concluded that the social worker’s approach was “open and straightforward …[he] approached the interview with an open mind”. Given that conclusion, which cannot be undermined on the evidence, it was submitted that there is an interesting similarity between how S responds to the social worker as described in the 4 August note and that which is observable in her responses to questioning on 10 August 2011. S was able to give information spontaneously and to engage in free recall on both occasions. Her language was neither determined by that of the questions nor any obvious suggestibility, for example by coaching or even the innocent effect of a rehearsal on 4 August. In short, having concluded that the 4 August discussion was not damaging to the integrity of the evidence available to the court, the corollary is that at least in theory it was available to the court as potentially supportive evidence. That was an evaluative judgment the judge was entitled to make.

I now turn to the evidence of the paediatrician which is the third ground of appeal. The paediatrician was brought in as a single joint expert to consider S’s presentation and to review the medical evidence. Although the disclosure of documents to her was appropriately limited, she was asked to consider the local authority and clinical records and she was directed to observe the ABE interviews. She was not asked to consider the pre-ABE interview material. Indeed, she did not know of the existence of the pre-ABE record before she gave oral evidence. She gave evidence that included her opinion on the veracity of S from the materials she had seen and heard. Although it is submitted to us that this went beyond what the paediatrician was asked to do, no objection was taken to her report or oral evidence in the court below. There is no submission to this court that the paediatrician did not have the skills and experience to be able to give the evidence that she did and no point is taken on the authorities that it would now be a very unusual case where a judge would need to have expert assistance on a child's veracity. There is no suggestion that this expert wittingly or unwittingly usurped the function of the judge, she simply gave her professional opinion which was then available to be cross examined upon.

The import of this ground of appeal is not that the paediatrician should not or could not do what she did, but that there needed to be procedural protections which, it is submitted, were missing in this case. It was the step father’s case that S had been coached into her allegation against him. That was the key factual issue. The parties agreed to the paediatrician being instructed to consider S’s presentation and she was directed to watch the ABE interview DVDs. It is not surprising in that context that she had an opinion about them and that the court came to hear about that. As I have remarked, to do so was certainly within her skill and expertise and in so far as she had formed an opinion about the child’s veracity, it would have been a legitimate cross examination question of her in any examination of whether that had influenced her opinion as to the interpretation to be put on the physical examination findings. The solution might have been not to give her the materials that she had, but once that had happened, it is difficult to see what the court should have done unless it is suggested that her evidence should have been excluded. That was not asked for nor was the expert asked to substantiate her opinions by reference to research material. The judge appropriately cross referenced the paediatrician’s evidence about the detail of S’s presentation with her own observations of the DVD interviews and reminded herself that some of the paediatrician’s opinions would on the evidence available to the court be capable of being supported by her experience but not by published research because the research had not been investigated by the parties. She accorded those opinions less weight in her determination.

So far as the social worker is concerned, whose evidence is the subject of the fourth ground of appeal, his expertise was in the interviewing of children. He was the investigator who had a great deal of experience of children in interview situations like this. He was entitled to give his opinion on the likelihood of coaching in the way suggested by the step father. He gave detailed evidence about those factors which he said were suggestive to him that S had not been coached. Again, the judge cross references that evidence with her own observations. She accords weight to his opinion where it coincides with her own (and the paediatrician’s).

The context of the judge’s analysis of the evidence is that she disbelieved both S’s mother and step father. So far as the step father is concerned, she said this:

“I find as a fact…that [SS] has a poor relationship with knowing the difference between truths and lies. I find as a fact that he lies easily about matters which are relatively uncontentious and even about matters that can be relatively easily proved to be wrong as I have set out above. Further I find as a fact therefore that he has lied about his treatment of [S]. I accept [the social worker’s] evidence that the reports of defiant and difficult behaviour by [S] towards [SS] are more likely explained by the fact that he was subjecting her to abuse.”

The judge is criticised in the final ground of appeal for not reminding herself that the reason for a person’s lies may be that he is not culpable of the facts or conduct in issue, that is, people have a variety of motives for lying not all of which are relevant to their culpability (see R v Lucas (1981) 1 QB 720, 73 Cr App R 159). It is not necessary for a family judge to ‘give herself’ such a direction although it is often helpful to do so. The criticism is, however, a valid criticism in some cases. On the facts of this case, the criticism can be levelled but answered in part by the wide ranging evidential analysis that the judge undertook. Once she had reached her conclusions about S’s credibility and reliability and the step father’s, the motives for him telling lies, for example about his previous conviction, paled into insignificance. It would have been helpful for the judge to have explored this issue, but the lack of a conclusion on that point is not fatal to her findings. Likewise, there are examples of unfortunate use of terminology by the judge but in the context of a detailed and careful review of the evidence her findings cannot be said to be wrong as a consequence.

For these reasons, the appeal against the finding of sexual assault was dismissed.

I agree.

I also agree.