W and F (Children), Re

This is an appeal by a man, hereafter referred to as “X”, against findings of sexual abuse made by Mr Recorder Moradifar in care proceedings in a judgment delivered nearly a year ago on 14^th November 2014. Permission to appeal was granted by King LJ on 19^th March 2015.

The judgment was delivered following a fact-finding hearing over twelve days in consolidated proceedings involving two families. The first consisted of four children, hereafter referred to as “M” (a boy, born 15^th January 2005), “C”, (a girl, born 11^th May 2007), “L”, (a girl, born 14^th January 2009) and “U”, (a boy, born 6^th December 2011). The four children share the same mother (“J”), but have three different fathers, two of whom were represented at the hearing. The second family consists of three children, all girls, hereafter referred to as “K” (born 5^th April 2006), “P”, (born 14^th June 2007) and “T” (born 18^th May 2006). The three girls share the same mother, “S”, and the same father who has played no part in the proceedings.

The principal link between the two families is X, who is the father of J’s eldest child, M, and was subsequently involved in a relationship with S. The reason for the consolidation of the proceedings was that it was alleged that X had sexually abused children in both families. In addition to those allegations, the local authority also sought other findings in support of its case that the children were suffering, and likely to suffer, significant harm and that the threshold for making orders under s. 31 of the Children Act 1989 was therefore crossed. Those other findings included, in the case of J’s children, physical harm and, in respect of both families, emotional harm, neglect, failure to protect and failure to work openly and honestly with professionals.

At the hearing, the two mothers made substantial concessions, sufficient to support conclusions that the s. 31 threshold was crossed in respect of all seven children irrespective of any findings as to sexual abuse. At the conclusion of the hearing, in addition to findings of sexual abuse which I shall set out below, the recorder made further findings of harm over and above those concessions. Plainly, irrespective of the findings of sexual abuse, the wide-ranging findings made by the recorder were sufficient to satisfy the s. 31 threshold in respect of each child.

The findings of sexual abuse sought by the local authority were:

“(1)

K, P, T, M, C, and L have suffered significant sexual abuse whilst in the care of J, S and X, perpetrated by X.

(2)

The children have (with the exception of U) displayed inappropriate sexualised behaviour and inappropriate sexual knowledge way beyond their years. That conduct/knowledge has arisen either as a result of being exposed to inappropriate sexual knowledge and/or conduct or experiencing the significant sexual harm as is alleged whilst in the care of J, S and X.”

At the conclusion of the hearing, the recorder found that X had sexually abused M, L and K but dismissed allegations that he had sexually abused P, T and C. In addition, he made the finding of sexually inappropriate behaviour sought by the local authority.

The appeal which comes before this court is by X against the findings that he sexually abused M, L and K. There has been no appeal by any party against any of the other findings. As a result, the care proceedings have continued to a conclusion. S’s three children – K, P and T – were made the subject of final care orders on 16^th December 2014 on the basis of a care plan for long term foster care, and are currently placed together in the same foster placement. In respect of J’s children, the three older children were made subject of care orders on the basis of plans for long-term foster care – C and L in one placement together, M in a separate specialist foster placement. U resides with his father under a child arrangements order subject to a one-year supervision order. Thus the outcome of this appeal will have no impact on the long term placements of the children, although it may conceivably have a bearing on other issues in due course, such as contact.

The relevant history can be summarised as follows.

In 2004, J and X had a brief relationship as a result of which M was born on 15^th January 2005. There were private law proceedings concerning contact between X and M, but that contact ceased when X received a substantial prison sentence following convictions for assault and robbery. J was then involved in two further relationships, as a result of which her three younger children were born as summarised above.

Over time, social services became involved with both families. The professional involvement with S’s family started in December 2007 and over the following years there were a number of referrals to social services arising out of concerns about S’s drinking and drug taking, incidents of domestic violence, and neglect. In 2012, the local authority became involved with J’s family having received a referral from M’s school after M had been excluded as a result of his behaviour. The local authority investigations identified a number of problems arising in part from J’s depression. There were concerns about the children’s safety and M alleged that he had been physically assaulted by his mother.

Around November 2011, S met X who was at that stage living in a hostel following his release from prison. In early 2012, X moved in to S’s address. On two occasions in 2012, reports were made to the police that X had assaulted S.

In early 2013, X resumed contact with his son M and, as a result, J and S became friends. By the summer of 2013, the families were spending much time together and all the children were in daily contact. J and S went out together on a regular basis leaving X looking after all seven children. Before the recorder, all three adults – J, S and X – accepted that by this stage X was in charge of disciplining the children. In October 2013, T’s school reported that T had alleged that X would punish her by making her face the wall for several minutes.

On 5^th November 2013, J informed the school that the previous evening C and L had alleged that M had sexually assaulted them and then urinated on the bed next to them. The school informed the local authority and as a result police started enquiries into both families. Later that day, C and L were seen at school by a police officer, DC A, accompanied by a social worker. Each girl is alleged to have said that she had been sexually abused by M. On the same day, S informed the social workers that several months earlier K had alleged that M had touched her private parts. As a result of these allegations, M was accommodated in foster care with the agreement of his parents under section 20 of the Children Act.

On the following day, 6^th November, S and X informed the social workers that on the previous evening they had spoken to S’s daughters and all three had alleged that they had been sexually abused by M. Later that day, all three girls were spoken to separately at school by the social worker and DC A. Each is said to have alleged that she had been sexually abused by M. I shall return to these conversations that took place on 5^th and 6^th November later in this judgment.

On 8^th November, because of growing concerns about X’s treatment of the children, and in particular his excessive chastisement, the social workers with the support of the police insisted that S should not permit X to stay overnight at S’s address, nor have contact with the children. Subsequently, however, the social workers became concerned that S was not complying with this direction.

On 11^th December, J informed the school that on the previous evening L had alleged that X had pulled her pants down, looked at her “vagina” and pulled them back up. The following day, 12^th December, L was spoken to at school by DC A and another social worker, LH. She is reported to have stated that X told her to “drop her pants” and touched the inside of her vagina and hurt her. She further reported that X had also sexually assaulted C and M. As a result, L was interviewed on DVD later that day. In the course of the interview, she repeated her allegation that she had been sexually abused by X, and made further allegations that the abuse had involved other children. The conduct of this interview has been the subject of criticism both before the recorder and this court. Following the interview, X was arrested that day but later bailed pending further investigations.

On 12^th December, J’s three younger children – C, L and U – underwent an ano-genital examination by Dr O, a consultant paediatrician. L was found to have vaginal abnormalities on the hymen, consisting of a bump at 3 o’clock and a deep notch at 6 o’clock, regarded as consistent with, but not diagnostic of, sexual abuse There were no abnormalities in her anal examination. The genital and anal examination of the other two children revealed no abnormalities.

On 17^th December, DC A and another social worker, KW, attended at the school to speak to S’s three children K, P and T. During their conversation with T, she alleged that she had been digitally penetrated by X. Neither K nor P was reported to have made any allegation that they had been sexually abused by X, although P was alleged to have referred to an incident involving X and T, and also to have repeated her allegation that she had been sexually abused by M. Also on 17^th December, M was spoken to at school by DC A and the social worker LH. It was said that in the course of this conversation he denied the allegation of sexual abuse against him but asserted that a number of the girls touched each other. It was also said that he alleged that X had sexually abused both him and L. I shall consider this conversation in greater detail later.

On 19^th December, while the social workers were present at S’s address to obtain her written agreement that X should not stay overnight at her property or have contact with the children, X arrived at the property. The written agreement was duly signed and X was warned not to return. Over the following weeks, however, the local authority continued to have concerns that S and X were not abiding by the agreement. The social workers also thought that both S and J were struggling to cope with caring for their respective children.

On 20^th December, M was interviewed on DVD. He alleged that he had been sexually assaulted by X and further alleged that L had told him that she had been sexually abused by X. The conduct of this interview has also been the subject of criticism both before the recorder and this court.

On 13^th January 2014, T was interviewed on DVD. She alleged that she had been sexually abused by both M and X. On this occasion, in contrast to what she was alleged to have said at school on 17^th December, she said that X had touched the outside, but not the inside, of her vagina, whereas M had touched her inside.

On 16^th January, M underwent an ano-genital examination by Dr O. No abnormalities were found.

On 13^th February 2014, Dr O carried out an examination of S’s three children. In his subsequent report for these proceedings, he stated that K’s genital examination “revealed an abnormality at 8 o’clock, with the appearance of a notch. On peer review, this abnormality was felt to be concerning.” K was also found to be displaying reflex anal dilatation. In his summary written shortly after the examination, Dr. O recorded that “K had anal signs consistent with penetrative sexual abuse. Her genital signs were equivocal.” P did not show any obvious abnormalities. T “had genital signs consistent with penetrative sexual abuse”, consisting of a deep notch at 2 o’clock, but no anal signs.

On 20^th February, M was recorded as telling his social worker that on one occasion X tried to make M touch his private parts. As a result, M underwent a further DVD interview on 3^rd March during which he repeated the allegation.

The local authority started care proceedings in respect of all seven children. On 17^th March, S’s three children were made the subject of interim care orders and accommodated in foster care. Later that month, J agreed to the voluntary accommodation of her three younger children. The two sets of proceedings were subsequently consolidated.

On 9^th May, Dr O carried out a further examination of K, and found that signs of reflex anal dilatation had resolved.

On 14^th July, M was seen at school again by DC A and another social worker. During the course of this conversation, M is said to have said that he lied about C and accepted that he had touched C’s vagina on three occasions without penetrating her. He continued to deny touching any of the other children. He alleged that he had behaved in this way because his father had done it to him.

At a preliminary hearing in July 2014, lawyers acting on behalf of X applied for the children to be called to give oral evidence at the fact-finding hearing. That application was refused by the recorder for reasons set out in a judgment dated 31^st July.

On 1^st August, K was interviewed on DVD. She made no allegations in the course of the interview. On the same day, arrangements were made to interview P on DVD, but she was highly distressed in a pre-interview conversation and it was decided not to proceed with the interview.

The fact-finding hearing started before the recorder on 10^th September 2014. Over the ensuing 12 days, he heard oral evidence from a number of witnesses, including both mothers and X. As set out above, he did not hear direct oral evidence from any of the children. He did, however, watch the DVDs of the police interviews of the children on several occasions. He received detailed submissions in writing and orally, much of which focussed on the reliability of the children’s allegations. At the conclusion of the hearing, the recorder reserved judgment.

His written judgment, which runs to 45 single-spaced pages, was handed down on 14^th November 2014. The first sixteen paragraphs set out the background, the local authority allegations, the respondents’ respective positions, and a brief summary of the relevant law, by reference to counsel’s written submissions. In paragraphs 17 to 151 of the judgment, the recorder recites substantial portions of the oral evidence, with some reference to the written material, and occasional comments of his impression of the witnesses, noting for example that X lacked any empathy for the children. Paragraphs 152 to 166 consist of summaries of the accounts given by the children to the police and the social workers, including the ABE interviews. Having dealt with the other allegations, his analysis of the allegations of sexual abuse is set out in paragraph 173 to 177:

“173.

With respect to the sexual abuse allegations against X, I note that C, K and P do not make any allegations against X. I further note that Dr. O, on examination of the children, found no abnormalities in respect of C or P. Therefore, I have to conclude that there is insufficient evidence that X sexually abused C or P.

174.

Having considered the totality of the evidence before me, I find that L was sexually abused by X in the manner she described it in her interview. I found her evidence to be compelling and to have the hallmarks of a real life experience. The inconsistencies and the issues of timing were in my assessment of her evidence, age appropriate and not surprising. I do not find that the inadequate police investigations and the leading questions during the pre-interview and the interview stages to be fatal to the reliability of her evidence. Whilst this was concerning and damaging to the quality of the evidence that was taken, it was not such that would render it entirely unreliable. Her evidence was further corroborated by her brother, M. I note that M was removed from the A household on 5 November 2013. From that moment, he only had supervised contact with his siblings and mother. The observations of that contact note that M struggled with his siblings being present during contact and, in the main, he did not interact with his siblings. The medical findings are also consistent and supportive of this finding.

175.

I have further considered all of the relevant material before me concerning M’s allegations against X. I have allowed for the characteristics of this troubled young man, his behaviour towards his peers, his lies and being described as a manipulative child. I have put into the balance all of the submissions on behalf of X in respect of M’s allegations. I find that M is prone to exaggerating certain aspects of his evidence against X and the behaviour of the children when in the company of each other. However, I find the main thrust of his allegations of sexual abuse against his father as being true. These have been largely consistent, with a lot of contextual detail that are appropriate to his age. Given the nature of his allegations, one would not expect there to have been any medical findings that would be supportive of his allegations ….

176.

K has not made any allegations. She is the eldest child of her sibling group, who is clearly aware of the issues in the family and very loyal to her mother. However, the medical findings in respect of K are very worrying. Not only she has a notch at 8 o’clock, she is the only child who was found to display anal reflect dilatation. The latter having resolved by 9^th May 2014. As Dr. O said, that meant that K had been ‘protected’ in the intervening period between the two medical examinations. My decision in respect of K is finely balanced, particularly so in the absence [of] any specific allegations against any other person. However, having considered the totality of the evidence before me and on the balance of probability, I find that she has also been the subject of sexual abuse at the hands of X.

177.

As for T’s allegation of sexual abuse against X, I note that this allegation was made in the course of the pre-interview at her school. The notes of this meeting are woefully inadequate and in my judgment are not sufficiently reliable. The DVD interview that follows records T as stating X touched her vagina in the course of what has been referred to as the ‘toilet incident’. This latter account is corroborated by the evidence of the other children. The description of this incident does not amount to anything other than an innocent attempt by X to clean T. Having taken into account Dr. O ‘s evidence and his findings in respect of T, I am not satisfied that there is sufficient evidence to support a finding that T was sexually abused by X.”

The notice of appeal filed on behalf of X was accompanied by grounds of appeal which were drafted extensively and in effect amounted to a fully-developed argument. At the hearing of this appeal, the court granted permission for the amendment of the grounds in terms of a draft settled after leading counsel, Miss Janet Bazley QC, had been instructed on behalf of the appellant. These “amended and distilled” grounds summarised the argument on behalf of the appellant as follows:

The document “Achieving Best Evidence in Criminal Proceedings – Guidance on interviewing victims and witnesses, and guidance on using special measures” was published in March 2011 by the Ministry of Justice and other departments, superseding earlier versions of the guidance. It is accepted that its relevance is not confined to criminal proceedings but extends to proceedings in the family courts. The status of the document is described in paragraph 1.1:

“This document describes good practice in interviewing victims and witnesses, and in preparing them to give their best evidence in court. While it is advisory and does not constitute a legally enforceable code of conduct, practitioners should bear in mind that significant departures from the good practice advocated in it may have to be justified in the courts.”

The scope of the Guidance is described in paragraph 1.3:

“This document considers preparing and planning for interviews with witnesses, decisions about whether or not to conduct an interview, and decisions about whether the interview should be videoed-recorded or whether it would be more appropriate for a written statement to be taken following the interview. It covers the interviewing of witnesses both for the purposes of making a video-recorded statement and also for taking a written statement, their preparation for court and the subsequent court appearance.

Chapter 2 covers “Planning and Preparation”. Paragraph 2.1 stresses the importance of planning, stating:

“A well-conducted interview will only occur if appropriate planning has taken place. The importance of planning cannot be overstated.”

There follows a passage of relevance to this appeal under the heading “Initial contact with victims and witnesses”

“2.4

The need to consider a video-recorded interview will not always be immediately apparent, either to the first police officer who has contact with the witness or to other professionals involved prior to the police being informed. Even where it is apparent, the need to take immediate action in terms of securing medical attention and making initial decisions about the criminal investigation plan might be such that some initial questioning is necessary.

2.5

Any initial questioning should be intended to elicit a brief account of what is alleged to have taken place; a more detailed account should not be pursued at this stage but should be left until the formal interview takes place. Such a brief account should include where and when the alleged incident took place and who was involved or otherwise present. This is because this information is likely to influence decisions made in respect of the following aspects of the criminal investigation plan:

•

Forensic and medical examination of the victim;

•

Scene of crime examination;

•

Interviewing of other witnesses;

•

Arrest of alleged offender(s); and

•

Witness support

2.6

In these circumstances, any early discussions with the witness should, as far as possible, adhere to the following basic principles:

a)

Listen to the witness

b)

Do not stop a witness who is freely recalling significant events

c)

Where it is necessary to ask questions, they should, as far as possible in the circumstances, be open-ended or specific-closed rather than forced-choice, leading or multiple

d)

Ask no more questions than are necessary in the circumstances to take immediate action

e)

Make a comprehensive note of the discussion, taking care to record the timing, setting and people present as well as what was said by the witness and anybody else present (particularly the actual questions asked of the witness)

f)

Make a note of the demeanour of the witness and anything else that might be relevant to any subsequent formal interview or the wider investigation

g)

Fully record any comments made by the witness or events that might be relevant to the legal process up to the time of the interview.”

Chapter 3, entitled “Conducting the Interview”, describes the so-called phased approach to interviewing, starting with a free narrative phase and then gradually becoming more and more specific in the nature of the questioning in order to elicit further detail. Paragraph 3.2 makes clear, however, that inclusion of such a phased approach in the guidance “should not be taken to imply that all other techniques are necessarily unacceptable or to preclude their development”. The Guidance continues:

“It is important to remember that the phased interview was primarily developed for interviewing witnesses who are reasonably articulate. The fact that the phased approach may not be appropriate for interviewing some witnesses with the most challenging communication skills (e.g. those only able to respond “yes” or “no” to a question) should not mean that the most vulnerable of witnesses are denied access to justice. Neither should what follows be regarded as a checklist to be rigidly worked through. Flexibility is the key to successful interviewing. Nevertheless, the sound legal framework it provides should not be departed from by interviewers unless they have discussed and agreed the reasons for doing so with their senior managers or an interview advisor”.

The Guidance proceeds in paragraph 3.3:

“For all witnesses, interviews should normally consist of the following four main phases.

With regards to “Phase 2: Free Narrative Account”, the Guidance provides inter alia

“3.24

In this phase of the interview the interviewer should initiate an uninterrupted free narrative account of the incident/event(s) from the witness by means of an open-ended invitation.

3.25

Interviewers should not usually try to initiate an account by focussing on the witness’s background or the general background to the incident. In the most instances, interviewers should initiate a free narrative account by simply asking the witness to concentrate on the matter in issue; the incident that is the subject of the investigation.”

Under the heading “Phase 3: Questioning”, the guidance provides:

“3.35

During the free narrative phase of an interview most witnesses will not be able to recall everything relevant that is in their memory. Their accounts could, therefore, greatly benefit from the interviewer asking appropriate questions that assist further recall.”

Under the sub-heading “Types of questions” paragraph 3.44 provides:

“Interviewers need fully to appreciate that there are various types of question which vary in how directive they are. Questioning should, wherever possible, commence with open-ended questions and then proceed, if necessary, to specific-closed questions. Forced-choice questions and leading questions should only be used as a last resort”.

Under the heading “Phase 4: Closing the Interview”, paragraph 3.80 provides that:

“If appropriate, interviewers should in this final main phase consider briefly summarising what the witness has said, using the words and phrases used by the witness as far as possible. This allows the witness to check the interviewer’s recall for accuracy. The interviewer must explicitly tell the witness to correct them if they have missed anything out or have got something wrong.”

At paragraph 3.84, it provides:

“An interviewer should always try to ensure that the interview ends appropriately. Every interview must have a closing phase. In this phase it may be useful to discuss again some of the “neutral” topics mentioned in the rapport phase.”

Paragraphs 3.103 to 3.112 give general guidance about the use of drawings, dolls and other props. It is acknowledged that use of these items may help younger children, and children with communication difficulties, to give a clearer account, but the Guidance identifies pitfalls as well as advantages which need to be borne in mind.

The importance of following the Guidance has been stressed by the courts on many occasions. One example in this Court occurred in TW v A City Council [2011] EWCA Civ 17 (a case which concerned an earlier version of the Guidance) where Sir Nicholas Wall P said:

“52…the Guidance makes it clear that the interviewer has to keep an open mind and that the object of the exercise is not simply to get the child to repeat on camera what she has said earlier to somebody else. We regret to say that we were left with a clear impression from the interview that the officer was using it purely for what she perceived to be an evidence-gathering exercise and in particular to make LR repeat on camera what she had said to her mother. That, emphatically, is not what ABE interviews are about and we have come to the view that we can place no evidential weight on it.

53 Against this background, the judge’s assessment that LR was a forthright child capable of standing up to and overcoming incompetent interviewing does not in our judgment stand up to analysis….it is not sufficient for a judge to rely primarily on the fact that the child is able, when being interviewed, in a thoroughly unsatisfactory manner and contrary to the Guidance, to make a number of inculpatory statements. A clear analysis of all the evidence is required and the child’s interview must be assessed in that context.”

Before considering the statements made by L and M containing allegations against X, it is important to consider the context and, in particular, the earlier statements made by L and C containing allegations against M.

As stated above, on 5^th November 2013, the school informed the local authority that J had reported that C and L had alleged they had been abused by M. Police and social services agreed that there should be a s.47 investigation, and that DC A and a social worker should visit the school to speak to the two girls later that day. The only written records of the visit are the “child protection incident report” entered on the police computer and the police officer’s notebook. No contemporaneous notes were produced by the social worker. Whereas the officer’s notebook contains only a short note about the conversation, the incident report includes more detail. It records L saying that M had pinched or scratched her. It continues:

“In using dolls in the room L was able to explain that M has hurt her all over including her forehead. L had a small faded bruise on her left side of her forehead. She showed using the dolls that M had headbutted her causing the bruise. She states that he scratches and pinches her all the time and hurts her.”

The report continues:

“L was asked what she had told her mother. She became very shy so the dolls were used again. She showed us that M had scratched her on her body and then put his hand in her privates which she called her vagina. She was asked if he had used anything else in her vagina. She said he had also used his foot and put a sandwich inside her vagina. She was asked to clarify this and stated that she was in the living room with her other siblings and mother. Mother had made them a sandwich which was cut up and contained salad and egg. She states that M then took her knickers off and put a sandwich inside her vagina. L states that she was wearing a dress at the time but was unable to give a time frame on the incident. She states that mother was present and told M off for doing it. She states that there was incident where all the children were in her bedroom and mother was downstairs listening to music. She states that M was not wearing any clothes and took off C’s knickers and then got on top of C in the missionary position. Was kissing her and his privates were touching C’s. L states that when M touched her vagina was on a different day to when he did this to C. L states that her vagina feels sore and hurts when she goes for a wee. L states that nothing has gone inside her bottom but M does scratch her bottom. L confirms that she told her mother 5/11/13 and heard C confirm that he had done the same to her.”

The incident report also includes a record of the conversation between the officer and social worker and C at school in which she is recorded as alleging that M had put his penis and hand inside her vagina. Dolls were also used in the course of this conversation.

In his judgment, the recorder made no comment about this conversation on 5^th November, other than to record a summary of what had taken place. At the hearing before this Court, Miss Bazley on behalf of the appellant attached considerable importance to the conversation. Contrary to paragraph 2.6 of the ABE Guidance, there was no comprehensive note of the discussion setting out the timing, setting, questions asked, or the precise words used by L. It was submitted that it is therefore impossible to know whether the questions put to this 4-year-old child were open or closed or leading, although, given the conduct of the subsequent DVD interviews by this officer, it was submitted that it is likely that the questions were asked in an inappropriate way. It was further submitted that the use of dolls at the school was inappropriate. The transcript of DC A’s oral evidence demonstrates that there was no proper planning prior to this interview. Miss Bazley described this as a deeply flawed process. She further pointed out that at this point L’s allegations are made against her brother M, not X, and that the abuse alleged against M was of a more serious nature than subsequently made against X. Furthermore, some of the statements made by L (for example, as to the sandwich) were implausible, which further undermined the overall reliability of her account.

On the following day, after S and X had informed the authorities about allegations made by K, P and T, each of those children was spoken to by the officer and a social worker at school. Each alleged that M had touched, or put his fingers inside, her vagina. Miss Bazley makes similar criticisms about the conduct of these conversations. She further submits that it is plain, as was accepted by all parties at the hearing before the recorder, that each child would have overheard discussions in the home between the adults, and discussions involving the other children, concerning these allegations against M.

In her statement, J alleged that L had told her on or about 11^th December that X had told her to pull her pants and trousers down, L told him no, so he pulled them down and looked at her. On the following day, L was spoken to at school by DC A and the social worker LH. Again, DC A made a note of their conversation in her notebook and also completed a child protection incident report on the computer. DC A’s notebook reads:

“Attended “school” with LH. L disclosed that X told her to drop her pants, told her “fuck” “bitch” to her and scratched her fanny. Put his hand inside her vagina and hurt her. S told him to leave but he didn’t. She told mum who told X to leave. She gave L a hug.”

The incident report on the computer, which was written three days later, gave a slightly different version of this conversation:

“L was given a scenario of truth and lies which she was fully able to distinguish the difference between telling the truth and telling a lie. L disclosed that X had pulled her trousers and pants down and then inserted his finger inside her vagina. She states that he did this to C and M too. She states that S had seen this and shouted at M to get out of the house and then told her mum the same day who told X to leave but he didn’t and then she hugged her. L states that X called her “Fuck” and “Bitch” and scratched her vagina inside and out.”

Although no contemporaneous social work record of this conversation was produced, a note of it appeared nine months later in a report described as a “s47 report”. This account is in similar terms to the incident report, although it also records that L alleged in this conversation that K, P and T had touched her vagina and she had seen them do this to C. The incident report recorded this latter allegation being made during the subsequent DVD interview.

On behalf of the appellant, similar criticisms are made about the conduct of this conversation as about the earlier conversation on 5^th November.

L was interviewed by DC A. There were a number of glaring deficiencies in this interview. There was no rapport phase, no real ground rules discussion, only a perfunctory discussion of truth and lies, and no opportunity for free narrative. The officer introduced the subject of the interview with these words:

“Tell me about X. What X did.”

To this, L replied:

“He pulled my trousers down and my pants down.”

The interview continued:

“DC: Okay. And then what happened?

L: He just

DC: It’s alright to tell me. Do you remember what you told me at the school?

L: Yeah

DC: Okay. What did you tell me at the school L? So X pulled down your trousers, pulled down your pants, then what did X do? What do you call that that he’s done?

L: Scratch

DC: Scratch and where are in your body did X scratch you?

L: [indicates her groin area]

DC: There. And what do you call that bit there. What did you call it earlier?

L: Fanny.

DC: A fanny. Okay. So when he scratched you, did you have your pants on or off?

L: Off.

DC: Off. So where were your pants.

L: [points to her feet]

DC: Down on your feet. Okay, and when he scratched your fanny, was it on the outside of your fanny or the inside?

L: Inside

DC: Inside. And then what did X say when he did that L?

L: Fucking bitch. And bitch fuck.

DC: Right. And what mood was X in when he said that L?

L: (draws face in the air)

DC: What mood is that?

L: Smiley

DC: A smiley because you’re thinking of those face that I showed you didn’t you? Yeah.”

L described how T, C and M had witnessed this incident. Later this exchange took place:

“DC: So what happened after X did that to you L, what happened?

L: I told my mummy and S.

DC: You told your mummy and S. What did S say to X?

L: Get out that house and then he didn’t.

DC: And what did mummy say?...

L: Get out the house

DC:…so did mummy say get out of the house as well?

L: Yeah. And then X did get out of the house.

DC: And then did he get out of the house. Okay have you seen X do what he did to you to anybody else?

L: Yes

DC: Who?

L: K, P, T, C.”

L proceeded to state that X had also touched M and later (in answer to a leading question) that M had touched her and also that K, P and T had hurt her “fanny”. She said that her mother had been next to her when this had occurred.

In his analysis of this interview, the recorder observed that L’s physical demonstration of what she said had happened was “quite realistic” and had “the hallmarks of a real life experience”. He also said, however, that L had been “clearly and obviously led during the pertinent parts of the interview”, that there were aspects of the later part of the interview which he thought were unlikely to be true, and that, as the interview progressed she started to struggle to concentrate and became more distracted.

In submissions to this Court, counsel for the appellant contended that the interview was unreliable because the ABE guidance was not followed, and the account given by L of the two mothers confronting X was not corroborated by the women in their evidence. They also submitted that the recorder failed to take into account the fact that L had been described by the other children as attention-seeking and a liar and thief. Miss Bazley further submitted that the recorder’s assessment is incomplete. There was no analysis of how L could be compelling at one point and not credible at others, or how it was appropriate to rely on what she said at one point of the interview but not at others. Although the recorder identified that parts of L’s account had followed a leading question, he failed to identify or consider the fact that there was no attempt at a free narrative.

M was first spoken to at school on 17^th December by DC A and a social worker, LH. The written evidence about this conversation is found in DC A’s notebook and in a “child protection incident report” completed by the officer. It was also referred to in the social worker’s s.47 report prepared in September 2014, although in her oral evidence LH said that she had not made any notes during or after the conversation. The officer’s notebook entry is brief. It records the allegations M is said to have made about sexual activity between his siblings. The notebook entry then continues:

“M then stated that X had tried to touch him. I stopped him and informed him that I would like to take his full account on DVD and that we would like to get him medically examined. He agreed.”

The incident report (said to have been compiled later that day) is fuller:

“M was spoken to at school about the allegations made against him, he states that the allegations of sexual activity with his siblings and the B children are not true. He states he did wee on K’s bed because he wanted them to continue playing flips on the bed and they didn’t want to so he wee’d on her bed,. He states that he did not wee on C and has not done anything sexual on C or L.

He states that L tells the truth and corroborates that X has touched L in her private area. This is believed to have happened just before the summer holidays 2013, he states that they were at S’s house and the other girls were playing, L came downstairs to X’s room … and after a short while came out and approached M in the front room and told him that X had put his hands down her pants. She [sic] told L to tell someone because he stated that if he told someone they would not believe him.

M states that L was touched by T,C K but not P. K and T have touched P. P pushed T away but then allowed her to do so. C was touched by K and C touched T who told her to stop but then C and T both touched each other. M states that he was witness to these sexual activity.

M states that T and K tried to touch M over his clothing but he punched them. He states that X has not touched his privates but has tried. M was stopped from disclosing further and advised that he would be invited to the DVD suite to give us his full account. He has stated that he did throw a cat out of the window because he was angry at his mother because he felt he was being treated differently from his siblings i.e. he was not allowed to go out and play with his siblings.

He has stated that he would have to stay in a room when at S’s house by X but this is to be explored further on DVD. He states that X has punched him on his leg and his private area. He states that when he was living with his mother they would go daily to S’s house.”

In her oral evidence, asked whether M’s statement about X not touching his privates had come spontaneously or in response to a question from her, the officer replied that she could not be sure whether she had asked him directly or not. She said that she had not been taught to record questions and answers in such conversations. In her oral evidence, LH described her note in the section 47 report as “quite a vivid account” but later conceded that she may have been referring to something she had heard M say during his DVD interview a few days later, rather than during the conversation at school.

In the judgment, the recorder made no comment about this conversation other than to record briefly what had taken place. Before this Court, however, Miss Bazley submitted that it was a very important conversation. She pointed out that there was no way of discerning how it was planned or conducted but, given what is known to have happened in other conversations, there must be concerns as to whether the Guidance was followed. There are also several inconsistencies between what M was recorded as saying on this occasion and his statements in the subsequent DVD interviews.

As the recorder recognised, and is accepted by all parties in this court, the ABE interview conducted by DC A did not comply with the guidelines in a number of important respects. There is little if any rapport phase. The discussion of truth and lies is perfunctory. There is no other discussion of any ground rules. There is no free narrative. The discussion of the subject of the interview is opened by this exchange between the officer and M:

“DC: So I saw you the other day and we had a bit of a chat didn’t we. And I said to you I sort of stopped you didn’t I and I said that I wanted to talk to you here so we can record it all and get it all on DVD. If we start with X first okay. Tell me about X.

M: Erm. What about him?

DC: Right do you remember we discussed, cos you used to live at home didn’t you, but now you’re in foster care.

M: Yeah

DC: And X, we discussed that you didn’t want to call X your dad, so I said okay we would use [his first name]. And you wanted to tell me something, and I stopped, about X tried to touch you.

M: [nods]

DC: Tell me about that M.

M: He tried to touch me, right there (indicates to his groin area)”.

The interview continued with further questions. A little later, this exchange took place.

“DC: Describe in more detail for me, M, what he actually did. You went into the living room.

M: And I, I said hi daddy, and then I just started drinking my drink. And he just said “what are you drinking” and I just said I’m drinking fizzy pop and he just went like that on me (hitting groin area). “

Further on in the interview, this exchange took place

“DC: So how would you describe, did that, it hurt you when he grabbed you?

M: Yeah

DC: Okay. And you’ve described on your hand someone pulling.

M: Yeah it’s like he cupped it like that but then he got me, digged his nails in and then pulled like that

DC: Okay and I know, I said to you, you know I don’t want you to get embarrassed or anything about what we talk about, I know you talk about your bits and how boys have got different bits than girls, yeah, and I know you have your long bit, what do you call the long bit.

M: Sometimes I just call it sausage or something

DC: Okay so you’ve got your sausage, then you’ve got your little bits haven’t you?

M: Yeah

DC: What do you call those little bits?

M: Meatballs

DC: Meatballs. So you’ve got your meatballs and you’ve got your sausage. Which bit did X grab?

M: Both

DC: Both. Okay. Did you have any marks or bruises from him doing that to you?

M: I had like a little scratch

DC: Okay on what part? The meatballs or the sausage?

M: The meatballs

DC: On the meatballs. Okay. Did anyone else see that scratch at all M?

M: No

DC: Okay, right

M: Because um I didn’t let anybody else see it, because it was my parts.

DC: Did it hurt you?

M: Yeah, every time I went to the toilet it stung.

DC: Right. Okay. It stung your sausage part or

M: It stung my privates down underneath

DC: What near the meatballs?

M: It was

DC: The meatballs that hurt?

M: Yeah. I feel really silly saying meatballs.”

Shortly afterwards, this further exchange took place:

“DC: So is there anything else about X that’s happened between the two of you?

M: Erm, not really anything else, but he’s tried to touch L.

DC: Okay.

M: I don’t think, I don’t think erm that, I don’t know even if he has touched her or hasn’t but I think he has because it was after when he touched me.

DC: Tell me about that then. What do you know about that then?

M: Erm L was outside, she ran into the house and I was chasing her, cos I was the monster, we were playing tig. And she ran into my dad’s room and then like two minutes after she came running out and saying that he’s just touched me and I said, on let’s go tell mummy, and she run ahead of me and I was waiting because I was waiting for my dad to come out so that I could shout at him, because I’m protective of my little sister. And then she, and then he, but he didn’t come out, and then I just, I was running and I thought she’s told, I thought she’s told my mum but I don’t think she has.”

In his analysis of this interview, the recorder noted that M gave his evidence confidently and that he provided a good deal of context and detail. He added, however, that the interview was “a shocking display of how to lead a child in interview”. He further observed that the interview had to be assessed against the background of M’s lies at school and of his being reportedly resentful and the reintroduction of his father into his life.

There was a record in the foster carer’s diary that M had said that X had touched his private parts and pointed to his penis. This entry was not mentioned in the judgment, nor was the foster carer called to give evidence about it.

On 20^th February 2014, M’s new social worker, SC, had a conversation with him at the foster home. SC took notes of his conversation which were subsequently entered on the social services computer. SC’s evidence to the recorder was that, in the course of the conversation, M had said X had tried to touch him on several occasions and that he had told his mother about this but she would not believe him. SC also stated that she had asked M if X had ever made him touch him, to which M had replied yes. In oral evidence, SC, (who was not trained in ABE interviewing), accepted that this was a leading question which she should not have asked. She said that she had realised this “more or less as soon as it rolled off my tongue”.

Unlike the earlier interviews of L and M, the interview of M on 3^rd March 2014 was conducted substantially in accordance with the ABE Guidance. There was a proper rapport phase, an explanation of the ground rules, and M was given an opportunity to give a free narrative. Unlike DC A, the officer conducting this interview asked questions which were generally in accordance with the Guidance. It should be pointed out, however, that the officer introduced the topic under discussion in this way:

“Officer: Have you spoken [to] SC about your dad at all recently?

M: [nods] Yeah

Officer: What did you tell her?

M: I’ve been telling her like about what he’s tried to be doing, what he’s trying to do to me and stuff. And what is trying to do to my little sisters.

Officer: Okay. And has he done anything else to you what you’ve not told me already?

M: [shakes his head] Um no

Officer: No

M: He has, he’s touched me there before, and he’s made me try and touch him, but I didn’t, I didn’t let him cos I kicked him.

This is then followed shortly after by a free narrative section:

The officer followed this with questions as to the bedroom in which this is said to have taken place, the clothes which he and X had been wearing, and about how X had tried to grab him. Later, the officer asked:

“Officer: Um was there any reason why you didn’t tell DC A about that bit when you first came in to do your first DVD?

M: Cos I was, because I was like really embarrassed, I was feeling really embarrassed if I didn’t, if I had told her.”

On behalf of the appellant, it is submitted that, whilst this interview was conducted in accordance with the ABE Guidance, it followed on from earlier conversations, and the December interview, during all of which there were a number of breaches of the Guidance. The recorder noted this in his judgment, and also observed that there was no clear evidence about who prepared M for this second interview, so that, as a result he had to approach his allegations with even greater caution.

Miss Bazley makes a number of submissions about M’s accounts.

First, she submits that M was a wholly unreliable witness whose evidence the recorder rejected on a number of important matters. She says that the recorder failed to explain why he felt able to accept M’s account on some matters but not others.

Secondly, it is submitted that the recorder failed to take into account the fact that M’s credibility was undermined by other evidence. His headmistress described him as manipulative, lacking in empathy, violent to other children, and untruthful. His mother said that she had no idea when he was telling the truth and when he wasn’t. Counsel for the appellant also rely on the fact that M has alleged that his foster carer has physically assaulted him, an allegation which is denied by the foster carer and which has been investigated by the police who have decided to take no action. One month before making the allegation, M is said to have told his social worker that he wanted to leave the placement and would lie and get the carer into trouble so the local authority will move him elsewhere.

Third, it is submitted that the recorder did not address the impact of the allegations made against M on his subsequent allegations against X. In assessing his allegations that X had perpetrated abuse on him, the recorder ought to have taken into account that M had been accused of perpetrating abuse on others, and that it was these allegations that led the police to speak to him on 17^th December 2013.

Fourth, it is submitted that it is impossible to discern from the judgment how the recorder reached the conclusion that the “main thrust” of M’s allegations was true. In the light of the poverty of the recording of the interview, it was impossible for the recorder to conclude that his accounts had been “largely consistent, with a lot of contextual detail”.

Fifth, it is submitted that the fact that the children were exhibiting sexual knowledge and behaviour of a degree that was inappropriate for their age, coupled with the evidence that they had overheard conversations about sexual matters, was consistent with a number of explanations and not supportive of the allegations against X.

I have summarised Dr. O’s reports of his medical examination above. In oral evidence, Dr. O agreed that the findings during the examinations of L and K were consistent with but not diagnostic of abuse. Miss Bazley submits to the Court that the recorder’s comment in respect of L at the end of paragraph 174 of his judgment that “the medical findings are also consistent and supportive of this finding” (emphasis added) goes too far. So far as K is concerned, Miss Bazley points out that the genital examination identified the “appearance of a notch”, which contrasted with the “deep notch” seen on T’s examination. She further points out that reflex anal dilatation was (as Dr O accepted) seen in equal ratios in abused and non-abused children. Miss Bazley therefore submitted that, absent any allegation by K, and with medical evidence that was equivocal, it was not appropriate for the recorder to have made any finding that K had been abused.

On behalf of the local authority, Miss Taryn Lee QC and Miss Gaynor Hall rely on the general principle that a judge at first instance has a significant advantage in seeing and hearing the witnesses: Piglowska v Piglowski [1999] 2 FLR 763. They ask this Court to recognise that the pressures on the trial judge, and on daily courtroom life, are such that the reasons for a decision will always be capable of having better expressed. They cite the observation of McFarlane LJ in Re V [2015] EWCA Civ 274 at para 15 that “in a straightforward fact-finding exercise such as this, there is no need for an elaborate distillation of each and every point”. They further urge this Court to resist the temptation to subvert the principle that it cannot substitute its own discretion for that of the recorder by undertaking too narrow a textual analysis of the judgment.

In this case, the Respondent’s counsel submit that the recorder’s judgment sufficiently explains his findings and the process of his reasoning. They submit that the recorder was plainly aware of the breaches of the ABE Guidance. They rely on the fact that the recorder had watched the DVDs several times as evidence of the care with which he approached his analysis. They point out that he found the officers and social workers to be credible witnesses, and submit that this was within his discretion, as was his assessment that X was not credible in some respects. They submit that the recorder was entitled to treat the medical findings as supportive of his conclusions whilst being careful not to overstate the weight to be given to them. Given the concession made by the mothers that the children had acquired inappropriate sexual knowledge, the recorder was entitled to take that into account in support of his conclusion that X had abused L, M and K. They submit that he directed himself properly as to the need for caution in assessing M’s allegations given his history of dishonesty and the poor quality of the ABE interviews and that, having so directed himself, it was open to him to reach the conclusions in his judgment. They further submit that he adequately addressed the unreliable aspects of L’s evidence in reaching his conclusion.

As for the findings concerning K, the local authority accepts that the recorder has not provided a detailed analysis of why, on this issue which he described as finely balance, he was persuaded by the totality of the evidence. It is submitted, however, that, having found that L and M had been sexually assaulted by X, he was entitled to conclude that the most likely explanation for Dr. O’s findings was that she had also been sexually assaulted by X.

I have every sympathy for the recorder who was asked to conduct a difficult forensic task. Unlike the case which McFarlane LJ was considering in Re V (supra), this case was very far from straightforward. It is generally recognised that cases of multiple allegations of sexual abuse, particularly involving small children and where more than one perpetrator is accused, are extremely challenging.

In this case, the recorder’s task was made much harder by the deficiencies of the investigation. Again, I have sympathy for officers and social workers entrusted with the difficult task of speaking to children about allegations of this sort. The ABE Guidance is detailed and complex. But those details and complexities are there for a reason. Experience has demonstrated that very great care is required when interviewing children about allegations of abuse. The Guidance has been formulated and refined over the years by those with particular expertise in the field, including specialists with a deep understanding of how children perceive, recall and articulate their experiences. It would be unrealistic to expect perfection in any investigation. But unless the courts require a high standard, miscarriages of justice will occur and the courts will reach unfair and wrong decisions with profound consequences for children and families.

In this case, the recorder described the first interview of M as “truly shocking”. It certainly fell woefully short of the requirements set out in the Guidance. The same can be said of the interview of L. In both interviews, there was no rapport phase, no real ground rules discussion, only a perfunctory discussion of truth and lies, and no opportunity for free narrative. On each occasion, the officer introduced the topic of the allegations by asking a blatantly leading question. Furthermore, on each occasion, she continued to lead the child by reference to what had been said in the earlier conversation – precisely the error identified in TW. Other examples of leading questions littered both interviews. In my judgment, the forensic value of both interviews is minimal. I therefore accept the appellant’s contention that the investigation of alleged sexual abuse was characterised by wholesale and serious breaches of the Guidance In these circumstances, I conclude that the recorder was wrong to attach any weight to these two interviews. He recognised that they were significantly deficient – “totally shocking” – but nevertheless felt able to rely on statements made by the children in the course of the interviews, saying (at paragraph 174 as quoted above) “whilst this was concerning and damaging to the quality of the evidence that was taken, it was not such that would render it entirely unreliable”. In my judgment, however, the extent of the deficiencies in the investigation and interviews were so great that it was unsafe to place any weight at all on what was said by the children in the two interviews. .

In addition, there is much force in other submissions made on behalf of the appellant. There was no real analysis in the judgment of the impact of discussions between the siblings, or between the adults in the presence of the siblings, on the allegations made by L and M. There was no real analysis of the earlier conversation between L and the police officer on 5^th November 2013, in which L is said to have made allegations against M, or the impact of that conversation on L’s, and M’s, subsequent allegations against X. The recorder referred to the initial conversations between the officer and the children but did not address the question whether those conversations contaminated what was said in the DVD interviews. The physical demonstrations given by L in her DVD interview, to which the recorder attached considerable importance, have to be assessed not only in the light of the unsatisfactory investigation but also the fact that L had already made similar allegations against her brother. As Miss Bazley observed in the course of submissions, when L made her allegations against X, the perpetrator identified was new but the substance of the allegation was not.

Furthermore, the judgment contained no real consideration of the allegations that M was himself a perpetrator of abuse of the girls, nor of the impact of those allegations on M’s own allegations against X. It would be wholly wrong at his young age to hold M culpable for what has happened, but his reliability as a witness was extremely questionable. He is, of course only a child – not yet 9 at the time of the initial investigation in December 2013 – and furthermore a child who has been profoundly damaged by his experiences. His allegations against X have to be considered in the light of the allegations made by L, C, K, P and T that he has abused them – allegations which he has initially denied and then accepted in part. He has been described by his head teacher and others as untruthful. The recorder (at paragraph 174 of the judgment) acknowledged that M told lies and was manipulative and prone to exaggeration, but nevertheless felt able to accept the “main thrust” of his allegations against his father and, in addition, relied on M’s statements as corroboration of L’s allegations. Given the history of M’s untruthfulness in the course of this investigation, and elsewhere, and given the fact that he was not subjected to cross-examination, together with the deficiencies in the investigation already cited, it seems to me that it was not safe for to the recorder to rely on M’s allegations at all.

M’s second interview in March 2014 was conducted largely in accordance with the ABE Guidance. Coming at such a late stage in the investigation, however, after M had been interviewed on several occasions about the allegations, formally and informally, in a fashion which failed to comply with the Guidance, the weight to be attached to his allegations in the second interview was also limited, particularly in the light of the serious doubts about M’s reliability.

The findings of the medical examinations conducted by Dr. O were of only limited value. Taken collectively, the fact that several of the children displayed signs that were consistent with abuse is a matter of concern. As Miss Bazley pointed out, however, taken individually each sign was no more than consistent with abuse. None of them was diagnostic of abuse. That was the case with the genital marks seen in L’s examination – the bump in the hymen at 3 o’clock and deep notch at 6 o’clock. They were consistent with abuse but equally consistent with the child not being abused. In my judgment, the recorder went too far is describing them as “supportive” of abuse. In all the circumstances, these signs added little if any weight to the allegations that she had been abused by X. In K’s case, the examination revealed two findings – a genital sign said “to have the appearance of a notch” and reflex anal dilatation – each of which is consistent with abuse but not diagnostic of it. There was no other evidence that K had been abused by X save for these equivocal physical findings.

The finding that X had abused K plainly cannot stand, based as it on the equivocal medical evidence alone. In my judgment, the findings that he abused L and M are also unsustainable in the light of the breaches of the ABE guidance, and other factors identified above, which rendered the children’s evidence wholly unreliable. I conclude that no court could have reasonably found that X had abused any of these children on the basis of the evidence adduced before the recorder.

I would therefore allow this appeal.

I agree.

I also agree.