Cheshire West and Chester Council v C & Ors

This hearing relates to the interests of A who is 16 years old and B who is 8 years old.

This is a final hearing in which the critical issue is whether the local authority can establish threshold in relation to the behaviour of D. The welfare consequences for the children are agreed.

D is the father of B and has known of and subsequently cared for A arising out of his relationship with A’s mother, C. C is the mother of both children.

C has not engaged in the proceedings from their inception although she receives information from the local authority from time to time.

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In late 2024, A began to make allegations about the behaviour of D towards her. I shall endeavour to chart the course of the development of her allegations. However, the impact was that A left her home with D and B and after a short period during which she stayed with B’s grandfather, She moved into a residential placement on in December. She has remained in that placement and appears content to remain there under a final care order. There is no dispute that that outcome is in her best interests irrespective of whether or not findings are made as sought by the local authority.

After a short period in the care of his paternal grandfather, B moved to stay with his aunt and uncle. In the event that findings are made against D, it is accepted that B will remain living with his aunt and uncle. In the event that findings are not made against D, it is accepted that he will transition back into the care of his father and be supported under a 6-month child in need plan. Accordingly, the placement proposals of the local authority are contingent on whether or not findings are made.

The local authority have not proved on the balance of probabilities that A was sexually abused by D.

Threshold is established for the purposes of making a final care order in relation to A on the basis of a plan for her to remain within a suitable residential placement confined to the findings established against her Mother and the behaviour by D on in October 2024 (namely, flicking her face with his finger in anger).

B will remain within his existing family placement pursuant to consent provided by D pending the completion of the four-week transition plan as agreed by the parties. D has given his commitment to working with the local authority under a child in need plan which will last at least 6 months and is intended to provide appropriate support to B.

I approve and encourage the proposals for contact and in particular that efforts should be made to ensure that B and A maintain a sibling relationship including if possible E.

The Children’s Guardian shall prepare a letter to explain the outcome to A, which must be provided to the Court. The Guardian, Ms Davis shall ask A if she would like the Court to write to her to explain the outcome and thereafter convey her wishes to the Court alongside a copy of the letter and any observations as to the benefit to A of such a letter being prepared.

For the purposes of this final hearing, I have a main bundle running to 1078 pages and a supplemental bundle running to 124 pages. All of the pages in the supplemental bundle form section G.

I am grateful to Ms Ross for the Local Authority, for her assistance in the compilation of a number of key documents: -

Ms Ross undertook to collate a morass of electronic disclosure produced with the assistance of an expert service (Cyfor) of data from electronic devices or applications accessed by A. Their final attempt to extract meaningful information from the raw data is described in their report, dated 20 August 2025) Ms Ross has produced a schedule of relevant messages based upon my original direction for disclosure of messages relevant to (a) any discussion of allegations of abuse by D; (b) any discussion about A’s unhappiness at home; (c) any discussion about A’s wish to move to X’s home; and (d) any discussion about the means by which A could effect a move to X’s home.

The local authority are Cheshire West and Chester Borough Council represented by their counsel, Ms Niamh Ross.

The children’s mother is C. She has not engaged in the proceedings at any stage and did not attend the final hearing. C has serious issues with alcohol and drug misuse.

B’s father and A’s carer is D. He is represented by Mr Mark Twomey KC and Mr Mark Steward

The children are represented by their Children’s Guardian allocated by Cafcass, Catherine Davies who instructs their solicitor Ms Fazakerley. Mr Mark Senior, counsel, represents the children. He has met A and the court determined that he was best placed to ask questions of her by way of cross-examination in the form of questions approved by the court on 22 August 2025. The court has previously determined that it is appropriate for A to give oral evidence and I shall summarise the ground rules applicable to that in due course.

I shall take the following largely from the agreed summary of the background.

B has lived in his father’s sole care since he was a baby following his parents’ separation and had not been open to the local authority before November 2024.

The mother and D were in a relationship for 10 years, and D reports having known A since she was 3 years old and having spent time with C and A almost every day.

A has been known to the local authority since birth as a result of her mother’s use of substances and the resulting impact upon her parenting.

The mother was recalled to prison in 2009, and A remained in the care of her maternal grandfather until the mother was again released from prison. Initially, following her release from prison, the mother lived with the maternal grandfather.

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In October 2024, A told school staff that D had slapped her to the face using the back of his hand in the car that morning as she was arguing or fighting with B. A stated that D has hit her before and has also hit B in the past, and that D shouts at her a lot. Ms J (school advocate) contacted A’s social worker who spoke to D, who accepted that he had hit A as she had hurt B.

In Late 2024, A alleged that D had sexually abused her by way of touching over and under her clothing.

The agreed Journey to ABE document describes in detail the comments made by A and relevant witnesses over the course of time. However, by way of summary, the allegations proceeded as follows.

A became upset during an exam and indicated that she may not be safe at home but she didn’t want to talk about what was upsetting her as “it would break up the family”. Ms J, the school advocate for children, spoke to A and whilst no specific allegation was made, A stated, “but D will go to prison for this” and “it doesn’t happen all the time, about every other month” and “it’s the same as what happened to X”. Ms J understood that this comment implied that A was making an allegation of sexual abuse against D.

X is a friend from school with whom A had a close relationship, and A had a number of sleepovers at X’s home over the 2024 summer holidays and beyond. X had experienced sexual abuse which resulted in criminal proceedings.

Ms J informed Ms W, social worker, by which time A had left school and had gone to X’s family home.

X’s parents, Y and Z, were present in the home. Initially, A and X were upstairs but they came downstairs around 5 minutes after A arrived and A informed Y and Z that D sexually touched her. Y informed Ms J, who called Ms W.

A was visited at X’s house that afternoon by Ms W, and a newly qualified social worker, Ms M. A again reported sexual touching by D. Police officers attended the property and arrested D and his phone was seized. A and B were taken into police protection, being placed with D’s father before moving on to their current placements.

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D was interviewed. D denied any form of sexual contact with A.

A gave an ABE interview which was conducted by DC2 (the recording starts at 13.55 and ends at 14.45).

A alleged that D sexually touched her in the early hours. A further alleged that there was a similar incident (or incidents) previously, and on that occasion (or occasions) D sexually touched her

B was visited by DC3 and Ms W the following day and reported no concerns.

A few days later, a phone was confiscated from A at school. This blue iPhone was X’s previous phone, which A had access to at various times (with D having returned the phone on occasion when he had found it in A’s possession, given A was not supposed to have access to social media given her vulnerability).

The previously allocated social worker, Ms B viewed the phone on 17 February 2025 and found evidence that A was engaging in communication of a sexual nature with males. Forensic analysis has been completed of the phone, the content of which has been summarised in a schedule prepared by the local authority.

The allegation of physical harm arises from a CPOMS entry created by Ms J dated October 2024: -

“A disclosed to Mrs S that when she was in the car this morning she was arguing/fighting with B and D slapped her across the face – using the back of his hand. Mrs S emailed me to see if I was free. I joined them straight away. A didn’t want to speak at first so Mrs S told me what A had disclosed (as written here) and A confirmed that was accurate. A said D has hit her before and has also hit B in the past. A said D shouts at her a lot. She said that he also says he will put her in Care. Myself and Mrs S reassured A and praised her for telling Mrs S. We reassured her she had done the right thing and we are here to keep her safe. A was angry and upset…I met with A later in the morning and she was feeling better. We talked it through and I gave her support and reassurance. We agreed to phone the Social Worker, Ms W, and A stayed so she could hear what I said. I shared all the information with Ms W…Ms W phoned me back. She had spoken to D and he accepted he had slapped A this morning. He said A and B were fighting and A had hurt B. D said he ‘lost it’. Ms W talked it through with him and explained he must never harm A. D understood this. Ms W will meet with D And A next week to offer further support”.

It is noted that A alleged that D had hit her in an incident around Christmas 2023 arising out of her possession or use of a mobile phone (this was discussed at school in January 2024).

The proceedings at the start of the final hearing on 11 September 2025 were in their 34^th week after the issue of proceedings.

The local authority’s final threshold document, dated 31 March 2025.

D’s response to threshold is contained in his statement, dated 8 May 2025.

It is agreed that the relevant date for determining threshold is the date when the children were taken into Police protection.

The relevant facts in issue may be analysed thus: -

It is denied that in the early hours on the date alleged D sexually abused A in that he sexually touched her. D does not deny being in A’s bedroom late that night/in the early hours but denied any such behaviour as is alleged” It is denied that D sexually touched A on an earlier occasion”

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It is alleged that in October 2024, D hit A across the face using the back of his hand, causing emotional and physical harm.

D describes in his evidence a scenario in which B was annoying A during which she threw her arm back causing B to suffer a nosebleed. He turned round in the car and was trying to wipe B’s nose with his sleeve. As A was “carrying on”, he then “flicked A” with his finger. The issue is whether it was a slap or a flick of his finger.

There is no challenge to the allegation that the children’s mother leads a chaotic lifestyle owing to her active addiction to illicit substances making her unavailable to provide care for her children thereby placing them at risk of harm.

The Mother failed to respond to threshold and is deemed to have accepted the allegation. In any event, there is sufficient evidence of the continuing impact of her chaotic lifestyle fuelled by her addiction to illicit substances for me to make the finding.

It is agreed that A should be subject to a final care order on the basis of a plan of her remaining within her current residential placement. A appears to have settled there and is due to begin her continuing education at a local college.

It is agreed that in the event that the findings of sexual abuse are made against D, then B should continue to reside with his current carers under a care order in the hope and expectation that they may consider caring for him under a special guardianship order in the future.

In that scenario the local authority propose a gradual reduction in the frequency of contact between B and his father to monthly subject to reviews taking place within the transition period, in particular, prior to any reduction from a frequency of fortnightly contact to monthly contact. That plan is supported by the Children’s Guardian but is opposed by D who seeks a greater frequency of contact.

It is agreed that in the event that the findings of sexual abuse are not made against D, then B should transition back into the care of his father. It is now agreed that the necessary support to be provided to D and B could be provided within a child in need plan, which would remain in place for a minimum of six months as opposed to a supervision order and supervision order support plan. This is based upon the fact that D has engaged positively with the local authority and has completed almost all of the work originally contained within the draft supervision order support plan. D committed under oath to seeking and engaging with support.

The parties agree with the revised 4-week transition plan of the Local Authority during which D agrees to give consent to B remaining a Looked After Child during the period of transition.

There are concerns that B holds A responsible for the separation from his father and support will be required in terms of their sibling relationship.

It appears that A was the subject of an Education, Health and Care plan instituted on 30 April 2020. There was a review of that plan on 18 November 2024 although I have not seen an amended revised plan following that review. There are handwritten annotations on the original plan which, in context, appear to relate to the review. The plan refers to A having additional learning needs and working significantly below age-related expectations. That A struggles with verbal instruction and that she needs a highly structured environment. She requires visual support to access lessons and learning. A is described as socially vulnerable and easily led by peers. She is said to struggle to regulate her emotions at times and requires support with this. In particular, it is noted that A can struggle to conduct herself safely online. It is said that A has demonstrated her vulnerability around the use of social media and mobile phones. Within her school environment, she formed a good relationship with the school advocate, Ms J, who summarised A’s educational abilities in the following way (February 2025): -

“A is on an EHCP for moderate learning needs, this concludes that she has additional learning needs and is significantly below age related expectations, she struggles to remember things, she may remember basic concept that she has learnt throughout the day but wouldn't remember this the following week, she needs a high level of adult support to complete tasks within the classroom she couldn't follow a teacher alone, she would need someone to give her visuals and explain it further, her general learning ability falls within the very low range of ability and her nonverbal reasoning and spatial abilities fall within the low range of ability. A struggles to understand time concepts i.e. what day it is and what comes first, she struggles to understand key concepts, reading, phonics, spelling, maths and its difficult for her to think cognitively outside of the box i.e. when writing a story, she will only refer to something that has happened to herself and couldn't think of other examples. A is a vulnerable young lady.”

A’s evidence was subject to careful planning to recognise her vulnerabilities and seek to enhance the quality of her evidence. The issues were determined at paragraphs 3 - 5 of my Order, dated 30 July 2025 involving the appointment of an intermediary to assist A (see intermediary assessment of Gina Bagan, dated 9 July 2025), the process of reviewing and approval of written questions in advance (see Order and schedule of questions as approved by the Court).

The participation directions set out at schedule 2 of the Order made on 30 July 2025 are as follows: -

“1.

A will give evidence from Counsel’s Chambers in Chester, with a video link via Microsoft Teams. A large projector screen with a camera on top is available and will be used (rather than a small device e.g., laptop).

2.

A will be transported to Chambers by placement staff, who will remain in the building.

3.

A will arrive at Chambers by 9.30am and have time to settle in.

4.

A will have the opportunity before her evidence starts to meet the other advocates. This will be done remotely via Microsoft Teams at 9.50am.

5.

A’s evidence will start at 10am. There will be a break for lunch between 12.30pm-1.15pm. A’s evidence will finish by 3.15pm at the latest, regardless of the stage that has been reached.

6.

Present in the room with A will be the intermediary, A’s solicitor Ms Fazakerley and a member of staff from A’s placement.

7.

The judge, advocates (including Mr Senior) and the parties will join from the courtroom.

8.

A’s screen will be set up so that she can only see the judge, Mr Senior and herself.

9.

The large screen in the courtroom will be used to ensure all advocates can see A. A screen will be used to ensure that D cannot see A, although will hear her evidence.

10.

Regular breaks will be taken, to be guided by the intermediary who will monitor A’s presentation.

11.

A is permitted to use a fidget aid during her evidence.

12.

A will have access to a timeline or calendar if questions are asked about any specific dates. This will be prepared in advance by the intermediary.

13.

A will be asked all questions by Mr Senior.

14.

Questions will be asked in accordance with the written questions which will be amended and approved by the judge in line with the directions above.

15.

There will be breaks to discuss any follow up questioning in A’s absence.

Any follow up questions must be in line with the guidance contained within the intermediary assessment.”

A has had the opportunity to meet me at Court and sit in the witness box. She also had the opportunity to visit counsel’s chambers as an alternative venue for her evidence and her preference was adopted.

Ms Fazakerley, her solicitor, was assiduous in giving A an opportunity to refresh her memory of her ABE interview although she did not feel able to watch it all.

The proposed questions for A have not been shown to her but have been considered by all parties and the intermediary service, Communicourt, prior to final review by the Court.

Accordingly, I am satisfied that all appropriate participation directions were given in order to enhance the quality of her evidence.

The local authority has the burden of proving the facts upon which it relies.  

The standard of proof is the balance of probability. I have kept those matters at the forefront of my mind in weighing the evidence in this case.

I adopt the helpful summary of Baker, J (as he then was) in Re JS [2012] EWHC (Fam) 1370 at paras 38-45; in Devon County Council v EB & Ors (Minors) [2013] EWHC 968 (Fam) at paras 53-64; and A Local Authority v (1) A Mother (2) A Father (3) L & M (Children, by their Children's Guardian) [2013] EWHC 1569 (Fam).

In Re BR (Proof of Facts) [2015] EWFC 41, Peter Jackson, J (as he then was) summarised the relevant general principles with his customary brevity. The fundamental elements may be expressed thus (Footnote: ¹): -

When evaluating the witnesses, I have considered their demeanour in the witness box.  I have sought to take account of the contemporary documentation, the written evidence and the ordinary process of reasoning including consistency or inconsistency informing an holistic assessment of their evidence and ultimately of its reliability. Many honest witnesses may provide inconsistent evidence and the contrary may be true of a witness intent on deception. Ultimately, the Court must evaluate the evidence and establish its assessment of the reliability of the witness and the quality of the evidence given within the compass of the body of evidence put before it. Assessing the existence or not of past facts is a forensic autopsy with material from the past and the present guiding the search for truth. I have compared and contrasted a range of evidence intellectually. It would be unreal to seek to display that in the form of a linear judgment but what I have sought to do is to present the areas which I have found most instructive in reaching the conclusions that I have. What I will not do is to recite each and every facet of the evidence or submission made to me even if it has formed part of my journey to the conclusion reached. I will however chart my path to my conclusion necessary to serve the interests of justice.

In undertaking this task, I would gratefully adopt the analysis of Peter Jackson, LJ in Re B-M (Children: Findings of Fact) [2021] EWCA Civ 1371 at paragraphs 25-30: -

“25.

No judge would consider it proper to reach a conclusion about a witness’s credibility based solely on the way that he or she gives evidence, at least in any normal circumstances. The ordinary process of reasoning will draw the judge to consider a number of other matters, such as the consistency of the account with known facts, with previous accounts given by the witness, with other evidence, and with the overall probabilities. However, in a case where the facts are not likely to be primarily found in contemporaneous documents the assessment of credibility can quite properly include the impression made upon the court by the witness, with due allowance being made for the pressures that may arise from the process of giving evidence. Indeed in family cases, where the question is not only ‘what happened in the past?’ but also ‘what may happen in the future?’, a witness’s demeanour may offer important information to the court about what sort of a person the witness truly is, and consequently whether an account of past events or future intentions is likely to be reliable.

26.

I therefore respectfully agree with what Macur LJ said in Re M (Children)at [12], with emphasis on the word ‘solely’:

“It is obviously a counsel of perfection but seems to me advisable that any judge appraising witnesses in the emotionally charged atmosphere of a contested family dispute should warn themselves to guard against an assessment solely by virtue of their behaviour in the witness box and to expressly indicate that they have done so.”

That was a case where the trial judge’s decision to refuse even supervised contact was based unduly on a father’s manner of giving evidence.

27.

The same approach was taken by this court in a family case: Re A [2020] EWCA Civ 1230, where a finding of unlawful killing by poisoning was based upon recollection of a very brief event years earlier. At [36], King LJ noted that in Kogan, the court had emphasised the need for a balanced approach to the significance of oral evidence regardless of jurisdiction and that, although it was a copyright dispute between former partners, the judgment had wider implications. She added:

“40.

I do not seek in any way to undermine the importance of oral evidence in family cases, or the long-held view that judges at first instance have a significant advantage over the judges on appeal in having seen and heard the witnesses give evidence and be subjected to cross-examination (Piglowska v Piglowski [1999] WL 477307, [1999] 2 FLR 763 at 784). As Baker J said in in Gloucestershire CC v RH and others at [42], it is essential that the judge forms a view as to the credibility of each of the witnesses, to which end oral evidence will be of great importance in enabling the court to discover what occurred, and in assessing the reliability of the witness.

41.

The court must, however, be mindful of the fallibility of memory and the pressures of giving evidence. The relative significance of oral and contemporaneous evidence will vary from case to case. What is important, as was highlighted in Kogan, is that the court assesses all the evidence in a manner suited to the case before it and does not inappropriately elevate one kind of evidence over another.

43.

In the present case, the mother was giving evidence about an incident which had lasted only a few seconds seven years before, in circumstances where her recollection was taking place in the aftermath of unimaginably traumatic events. Those features alone would highlight the need for this critical evidence to be assessed in its proper place, alongside contemporaneous documentary evidence, and any evidence upon which undoubted, or probable, reliance could be placed.”

28.

Of course in the present case, the issue concerned an alleged course of conduct spread across years. I do not accept that the Judge should have been driven by the dicta in the cases cited by the Appellants to exclude the impressions created by the manner in which B and C gave their evidence. In family cases at least, that would not only be unrealistic but, as I have said, may deprive a judge of valuable insights. There will be cases where the manner in which evidence is given about such personal matters will properly assume prominence. As Munby LJ said in Re A (A Child) (No. 2) [2011] EWCA Civ. 12 said at [104] in a passage described by the Judge as of considerable assistance in the present case:

“Any judge who has had to conduct a fact-finding hearing such as this is likely to have had experience of a witness - as here a woman deposing to serious domestic violence and grave sexual abuse - whose evidence, although shot through with unreliability as to details, with gross exaggeration and even with lies, is nonetheless compelling and convincing as to the central core... Yet through all the lies, as experience teaches, one may nonetheless be left with a powerful conviction that on the essentials the witness is telling the truth, perhaps because of the way in which she gives her evidence, perhaps because of a number of small points which, although trivial in themselves, nonetheless suddenly illuminate the underlying realities.”

29.

Still further, demeanour is likely to be of real importance when the court is assessing the recorded interviews or live evidence of children. Here, it is not only entitled but expected to consider the child’s demeanour as part of the process of assessing credibility, and the accumulated experience of listening to children’s accounts sensitises the decision-maker to the many indicators of sound and unsound allegations.

30.

None of this will be news to specialist family judges and in future I would hope that in conventional family cases any submissions that unduly labour arguments based upon the dicta that I have been considering will receive appropriately short shrift.”

Hearsay evidence is admissible in civil proceedings but the Court must be astute to consider the weight to be attached to it.  In Westminster City Council v M, F and H [2017] EWHC 518 (Fam), Hayden, J put the matter in this way: -

“23.

Perhaps most importantly, sight must not be lost of the fact that these are public law care proceedings, where the guiding philosophy of the Court is investigative, non adversarial, sui generis.  Driven by its obligation to regard the welfare of the subject child as the paramount consideration, the Family Court will instinctively permit a board range of evidence in order ultimately to weigh and assess its quality and worth in the context of the evidence as a whole.

24.

A Local Authority faced with allegations of this kind is simply not going to be in a position to call as a witness every nurse, doctor or teacher who makes a note (usually recorded contemporaneously) in order to provide what Ms Bazley identifies as ‘the best quality of evidence on each individual point’.  The maternal being considered here, spans a number of years and is qualitatively of a different complexion to witness statements taken on key issues.  These are largely clinical and nursing notes which provide contextual material by which the central evidential conflicts may be resolved.

25.

The Local Authority must, ultimately, assess the manner in which it considers it can most efficiently, fairly and proportionately establish its case.  The weight to be given to records, which may be disputed by the parents, will depend, along with other factors, on the Court’s assessment of their credibility generally.  Here, the reliability of the hearsay material may be tested in many ways e.g. do similar issues arise in the records of a variety of unconnected individuals?  If so, that will plainly enhance their reliability.  Is it likely that a particular professional e.g. nurse or doctor would not merely have inaccurately recorded what a parent said but noted the exact opposite of what it is contended was said?  The reaction of witnesses (not just the parents), during the course of oral evidence, to recorded material which conflicts with their own account will also form a crucial aspect of this multifaceted evaluative exercise.  At the conclusion of this forensic process, evidence can emerge and frequently does, which readily complies with the qualitative criterion emphasised in Re A [(A Child) (Fact finding hearing: speculation) [2011] EWCA Civ 12].”

During his helpful summary of the law relating to the admissibility and weight to be accorded to hearsay evidence in children cases, Hayden, J made the following observation at paragraph 18: -

“The Court will always want to analyse the cogency and weight of hearsay evidence. Section 4 [Civil Evidence Act 1995] provides guidance as to the considerations relevant in weighing hearsay evidence. In estimating the weight (if any) to be given to hearsay evidence in civil proceedings the court shall have regard to any circumstances from which any inference can reasonably be drawn as to the reliability or otherwise of the evidence. Regard may be had, in particular, to the following—

(a)

whether it would have been reasonable and practicable for the party by whom the evidence was adduced to have produced the maker of the original statement as a witness;

(b)

whether the original statement was made contemporaneously with the occurrence or existence of the matters stated;

(c)

whether the evidence involves multiple hearsay;

(d)

whether any person involved had any motive to conceal or misrepresent matters;

(e)

whether the original statement was an edited account, or was made in collaboration with another or for a particular purpose;

(f)

whether the circumstances in which the evidence is adduced as hearsay are such as to suggest an attempt to prevent proper evaluation of its weight."

I have borne those matters in mind when assessing the weight to be given to the hearsay evidence.

I have steadfastly avoided the assumption that because I did not believe a witness on one fact means that they must have lied on another.  I have sought to evaluate why they may have lied in accordance with the approach adopted in Re H-C [2016] AC 746.

As to the allegations of sexual abuse, I have reminded myself of the analysis of MacDonald, J in Re P (Sexual Abuse – Finding of Fact Hearing)[2019] EWFC 27 (Fam) and of Baker, LJ in Re JB (Child: Sexual Abuse Allegations) [2021] EWCA Civ 46.

The current form of the ABE Guidance dates back to January 2022 (“Achieving Best Evidence in Criminal Proceedings: Guidance on Interviewing Victims and Witnesses, and Guidance on Using Special Measures”).

I shall refer to some of the relevant paragraphs: -

In Re JB (A Child) (Sexual Abuse Allegations) [2021] EWCA Civ 46 (adopted by Peter Jackson, LJ in Re S (A Child: Findings of Fact) [2023] EWCA Civ 346 at paragraph 37), Baker, LJ gave important guidance in understanding and evaluating the ABE guidance: -

“11.

The importance of complying with the ABE guidance, which is directed at both criminal and family proceedings, has been reiterated by this Court in a series of cases including TW v A City Council [2011] EWCA Civ 17, Re W, Re F [2015] EWCA Civ 1300, Re E (A Child) [2016] EWCA Civ 473, Re Y and F (Children) Sexual Abuse Allegations)[2019] EWCA Civ 206 and in the judgments of MacDonald J in AS v TH and others [2016] EWHC 532 (Fam) and Re P (Sexual Abuse: Finding of Fact Hearing) [2019] EWFC 27. It is unnecessary to repeat at any length the extensive comments set out in some of those judgments. For the purposes of this appeal, the following points are of particular relevance. (Save where indicated, the paragraphs cited are from the ABE guidance.)

(1)

"The ABE guidance is advisory rather than a legally enforceable code. However, significant departures from the good practice advocated in it will likely result in reduced (or in extreme cases no) weight being attached to the interview by the courts." (Re P (Sexual Abuse: Finding of Fact Hearing), supra, paragraph 856).

(2)

Any initial questioning of the child prior to the interview 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 (paragraph 2.5).

(3)

In these circumstances, any early discussions with the witness should, as far as possible, adhere to the following guidelines.

(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 (paragraph 2.6, see also AS v TH, supra, paragraph 42).

(4)

For all witnesses, interviews should normally consist of the following four main phases: establishing rapport; initiating and supporting a free narrative account; questioning; and closure (paragraph 3.3).

(5)

The rapport phase includes explaining to the child the "ground rules" for the interview (paragraphs 3.12-14) and advising the child to give a truthful and accurate account and establishing that the child understands the difference between truth and lies (paragraphs 3.18-19). The rapport phase must be part of the recorded interview, even if there is no suggestion that the child did not know the difference between truth and lies, because "it is, or may be, important for the court to know everything that was said between an interviewing officer and a child in any case" (per McFarlane LJ in Re E, supra, paragraph 38).

(6)

In the free narrative 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" (paragraph 3.24).

(7)

When asking questions following the free narrative phase, "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" (paragraph 3.44).

(8)

Drawings, pictures and other props may be used for different reasons – to assess a child's language or understanding, to keep the child calm and settled, to support the child's recall of events or to enable the child to give an account. Younger children with communication difficulties may be able to provide clearer accounts when props are used but interviewers need to be aware of the risks and pitfalls of using such props. They should be used with caution and "never combined with leading questions". Any props used should be preserved for production at court (paragraphs 3.103 to 3.112).

(9)

"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". It should not 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" (paragraph 3.2).

(10)

Underpinning the guidance is a recognition "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" (per Sir Nicholas Wall P in TW v A City Council, supra, at paragraph 53).”

Peter Jackson, LJ in Re S (supra) noted that it would have assisted the trial judge if he had identified and focused on the chapters of time covered by the evidence, which might conveniently have been arranged under the headings: the background, the first accounts, the ABE process and subsequent statements. I have endeavoured to have regard to that approach within this judgment. The careful preparation and consideration of the Journey to ABE document is intended to achieve that objective.

In Re H (Children) (Findings of Fact) [2025] EWCA Civ 993, Cobb, LJ made the following important observations at paragraphs 65 – 66: -

“65.

In a case in which there are multiple allegations, a Judge must always guard against the temptation to approach the evidence on the basis that something must have happened; the temptation in this case must have been all the greater given the reports of H’s sexually disinhibited behaviour and language, particularly once in foster care. In this case, the Judge had rightly been invited by counsel to consider the comments of Lord Hewart CJ in Bailey [1924] 2 KB 300 at 305, regarding the judicial approach required in cases in which the court is faced with determining a very large number of allegations: “The risk, the danger, the logical fallacy is indeed quite manifest to those who are in the habit of thinking about such matters. It is so easy to derive from a series of unsatisfactory accusations, if there are enough of them, an accusation which at least appears satisfactory. It is so easy to collect from a mass of ingredients, not one of which is sufficient, a totality which will appear to contain what is missing. That of course is only another way of saying that when a person is dealing with a considerable mass of facts, in particular if those facts are of such a nature as to invite reprobation, nothing is easier than confusion of mind; and, therefore, if such charges are to be brought in a mass, it becomes essential that the method upon which guilt is to be ascertained should be stated with punctilious exactness” (Emphasis by underlining added).

The Judge was further taken to Macdonald J’s comments in Re P [2019] EWFC 27 at [272] where he said (having quoted the extract from Bailey above):

“The totalising approach must be avoided if the court is to steer safely clear of capitulating to suspicion and the beguiling adage that there is ‘no smoke without fire’” (Emphasis by underlining added).

The judicial advice from Bailey and Re P set out above was particularly apt to this case.

66.

Notwithstanding the conscientious efforts of this judge in preparing his detailed judgment, this is a case in which the crucial analysis on the key facts would I suggest have been easier for him to undertake, and would altogether have been more coherent in its organisation and presentation, if he had adopted the approach advocated by Peter Jackson LJ in Re S [2023] EWCA Civ 346 at [33]; that is to say he could or should have identified and focussed on the “chapters of time” covered by the evidence, rather than structuring the judgment by reference to the sequence of witnesses and the individual allegations in isolation from each other. On the facts of this case, these ‘chapters’ might conveniently have been arranged under headings including: July 2023 (H’s report of being smacked); the first account of sexual abuse (December 2023: father); the second account of sexual abuse (January 2024: mother); other accounts of physical and sexual abuse (January – March 2024); the first ABE interview (5 April 2024); the allegations against CH on 21 April 2024; the second ABE interview. The Judge could then have concentrated on the first point in time at which H had ever given an account of alleged sexual abuse, the precise circumstances in which the account or accounts arose, whether and if so how they fitted into a context of lies, and how those were treated by those to whom they were made (Re P (Sexual Abuse – Finding of Fact hearing) [2019] EWFC 27). There was, thus, much force in Ground 1 of this appeal.”

In Re P (supra), MacDonald, J made the following observations about the impact of non-compliance with the ABE Guidelines: -

“601.

It is important to emphasise that in evaluating the extent to which those charged with, or finding themselves receiving allegations from children, have complied with these principles the court does not expect perfection and it would be unrealistic to do so.  As Mr Vater and Mr Watson remind the court, complete adherence to ‘guidelines’ does not mean that an allegation is true; wholesale failure to adhere to ‘guidelines’ does not mean that an allegation is false.  In the paper provided to the court by Mr Bagchi and Ms Bains, Children’s Suggestibility Research: Things to know before interviewing a child (Anuario de Psicología Jurídica 25 (2015) 3-12) Ceci and his co-authors make clear that it is important not to discount a child’s testimony merely because that child has been exposed to suggestive questioning. The Court must consider a whole range of factors. 

602.

 As I made clear in Re AS v TH (False Allegations of Abuse), failures by professionals in the investigation of allegations of abuse, and the fact that those failures must be taken into consideration when considering the weight that can be attached to the various strands of evidence, does not of itself preclude the possibility that those allegations are true.  There will, in any system that relies on human agency, inevitably be occasions on which there are omissions and errors in the application of good practice.  As noted by Baker LJ in Y and E (Children) (Sexual Abuse Allegations) [2019] EWCA Civ 206the ABE Guidance is extremely detailed and often very challenging for police officers and social workers to follow.  Within this context, it is thus important to note that, as the Court of Appeal made clear in Re B (Allegation of Sexual Abuse: Child's evidence) at [40] that:

“There is no question of this evidence being inadmissible for failure to comply with the ABE guidelines, and that has not been suggested in argument for either parent. In a family case evidence of this kind falls to be assessed, however unsatisfactory its origin. To hold otherwise would be to invest the guidelines with the status of the law of evidence and it would invite the question: which failures have the consequence of inadmissibility? Clearly some failures to follow the guidelines will reduce, but by no means eliminate, the value of the evidence. Others may reduce the value almost to vanishing point.”

603.

 However, the standard expected by the court remains a high one.  As Ms Morgan and Ms Gallacher recognised in their closing submissions, whilst there can be a sense sometimes that lawyers are only too keen to examine the detail of the breach of this rule or that, and that it is in the Court arena that those breaches of guidance, rules and good practice fall to be examined, it is outside the court arena that they have their effect for good if followed and the reverse if not. Within this context, as Baker J (as he then was) noted in Re W, Re F [2015] EWCA Civ 1300 (and recently reiterated in Re SR (A Child) [2018] EWCA Civ 2738):

“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.”

604.

 The relevant question for the court is whether any omissions or errors made are forensically significant. As Baker LJ further noted in Y and E (Children) (Sexual Abuse Allegations) “the judge (or the jury in criminal cases) has to assess the extent to which those failures undermine the reliability of the evidence”. Do the omissions or errors in good practice undermine the credibility of what is being said?  Did they act, inadvertently or deliberately, to put words into the child’s mouth by suggesting the answer to a given question? Did they inadvertently or deliberately encourage the child to exaggerate for reward? Did they cause the recorded account to be inaccurate or unreliable?  Did they act to assume an outcome?  Did they fail to take account of the needs of the child such as to make what the child has said unreliable?  This is not an exhaustive list.”

In other words, “[s]ignificant departures from the Guidance are likely to result in reduced, and in extreme cases no, weight being attached to the interview. It is for the judge to consider the interviews, and the extent to which they comply with or depart from the Guidance, in the context of all the other evidence” (Re C (A Child) (Fact-Finding) [2022] EWCA Civ 584 per Baker, LJ at paragraph 23).

MacDonald, J provided a comprehensive analysis of the statutory and other guidance of which all social workers and other professionals working with children should be aware: AS v TH (False Allegations of Sexual Abuse) [2016] EWHC 532 (Fam) at paragraphs 33 to 52; Re P (supra) at paragraphs 570 to 600. In my judgment, his masterful analysis is required reading and the key messages remain vital: -

“600.

Having regard to the matters set out in this section of the judgment, in evaluating the weight that can be attached to the allegations made by [named children] [...] and in summary, the court must consider the extent to which the following principles have been adhered to:

i)

Having regard to research into the manner in which a child registers, processes and recalls experiences from memory and the factors that may influence that recollection, and to long experience that emphasises the high level of caution that needs to be applied if the risk of obtaining unreliable evidence is to be minimised, very great care must be taken by adults when speaking to children who have made allegations of sexual abuse, and when analysing and assessing the weight to be given to statements by those children.

ii)

Adults speaking to children who have made allegations of sexual abuse must always be careful to keep an open mind with respect to the allegations made and to guard against the development of bias or preconceived ideas. The child should be listened to and taken seriously whilst care is taken not to prejudge the issue.

iii)

Adults speaking to a child who is alleging sexual abuse should not stop free recall of events.

iv)

Adults speaking to a child who is alleging sexual abuse should ask no more questions than are necessary in the circumstances to take immediate action.

v)

Where it is necessary to ask questions, adults speaking to a child who is alleging sexual abuse should, as far as possible in the circumstances, ask only open-ended or specific closed questions, rather than forced-choice, leading or multiple questions.

vi)

Any initial questioning by adults speaking to a child who is alleging sexual abuse should be intended to elicit a brief account of what is alleged (where and when the alleged incident took place and who was involved or otherwise present). A more detailed account should not be pursued and should be left to the ABE interview.

vii)

As soon as possible thereafter the adult must make a comprehensive record of the conversation, which record should detail (a) the timing, setting and people present, (b) a full note of what the child said in the words used by the child (avoiding summaries of the account in the interests of neatness or comprehensibility and recordings of the adult’s interpretation of the account), (c) a full note of the actual questions asked (if any) and (d) what was said by anybody else present.  The record should also record the demeanour of the child and anything else that might be relevant.

viii)

The adult should continue to record any comments made by the witness or events that might be relevant to the legal process up to the time of the ABE interview.”

A is 16 years old. She has moderate learning and communication needs, which were taken into account within her oral evidence but which were not addressed within her ABE interview. She gave an account of abuse on at least two occasions within her interview. It is in the nature of her communication style that she tends to respond to questions with short answers. There is greater narrative detail within her ABE interview although there is very little if any experiential detail regarding sound, smell or touch. There is little by way of her feelings. There are significant inconsistencies about the account and she has been required to repeat on at least five occasions before the ABE interview was conducted (to Ms J; X; Y; Ms W; DC1, All officers referred to in this judgment were employed by Cheshire Constabulary). The earliest references to the allegations were by way of similarity to allegations which had been made by her “best” friend, X. I find that apparent coincidence striking. Within her oral examination, A appeared to answer each question simply and did not offer any elaboration when asked what happened. In fact, she took time to write a note simply saying that D got into her bed. A has had a difficult childhood with considerable instability within her upbringing during which she has demonstrated significant vulnerability to sexual exploitation online. As has been noted, she is a vulnerable young person who seeks emotional support from relationships with individuals online. In her oral evidence, she agreed that she felt like she was part of D family and that he was like a father to her . She agreed that she was able to talk to him about important issues in her life. She agreed that he listened to her. A agreed that she knew why D was concerned about her having a phone but confirmed that it did upset her that she was not allowed a phone. She accepted that she gained access to a blue iPhone from X’s home and hid it from D.

Overall, my assessment of A as a witness is that there is significant reason to be reserved about relying upon her varying accounts as to what happened in her bedroom at around midnight on the night in question. My assessment is that she is a young person who was focused upon engaging with others on social media and that access to her telephone was a matter of great importance to her. In my judgment, she may well have interpreted the words of Y and the supportive comments of her friend X as opening a door for her to move to live with them as a prospective move with B and D was approaching. When A was asked whether she was angry with D saying that she could not live with X, she responded that she was more upset than angry.

A was asked questions about what happened on the night in question. She agreed that D came into her bedroom to turn off her light. She didn’t know if D had pulled the cover up on her bed. She disagreed that D left the room; there was a long silence and A was prompted by the intermediary to write something down and she did. That was the reference to him coming into her room and getting into her bed. That is all she wrote beyond scribbling her name on a separate piece of paper.

When asked about her comment to Ms J that, “it”, namely “something similar to X” as she described it in her oral evidence, A said she told Ms J that it happens about every other month and then added, “yes, a few times”.

A said that she did send a text message to X at about 04.00 stating either that “D raped me” or “D tried to rape me”. When asked what rape means, she said “try to have sex with you.” She didn’t know if D raped her but then said when asked whether he had tried to rape her, “not fully”.

I am satisfied that A is capable cognitively of the decision to utilise a pattern of abuse similar to that which she had been told about in relation to X in order at that moment to seek to affect a move to live with X. The elements of her story, including the alleged sending of the text message to X at about 04.00 saying that either she had been raped by D or that he had tried to rape her, tied to her varying accounts as to what happened, which was the “worst” event as described to Y and the varying descriptions of the frequency upon which similar events had occurred is, in my judgment, difficult to regard simply as an element of her cognitive and communication difficulties. In my judgment, it is more likely a reflection of the fact that the account is not of an event she experienced and can talk about but of a description which she was told about. In saying that, I am merely pointing to factors which go to whether overall the local authority have established their case on the relevant allegations. Overall, whilst A gave clear answers in the main and gave a narrative account of abuse, I have considerable reservations about whether, in context, that is capable of establishing that she was in fact probably abused by D. Taking account all of the evidence, including the deficits in the ABE process, I regard her as an unreliable historian.

D has known A since she was a young child of 2 or 3 years old although when she came to him it arose from problems while she was living with her sister E. He appears to have been the last option short of A being taken into care in summer 2023.

He described purchasing a mobile phone on the basis that he would place controls as to access on it as a Christmas present for A in December 2023. A took that phone from amongst a pile of prospective Christmas presents. I thought it was noteworthy that to get the phone, A had to pull out a range of presents to find the phone then determined to open the box and utilise the phone thereby ruining the surprise. It seems unlikely that she was afraid of the response of D when it would have been obvious to her that her removal of the phone would be discovered. It is illustrative of the imperative A must have felt to gain access to a phone and social media; a need which was readily met from at least the summer of 2024 when she gained access to the blue iPhone at X’s house.

D describes a conversation with A in his Police interview when she asked him about moving to live with X and Y in an excited way. He described her not being happy when he told her that she could not move in with X in the context of them about to move to a bigger house shortly. He accepted in his oral evidence that there may have been 2 or 3 other conversations about this topic.

A common component of the arguments made against D are derived from (a) the inherent improbability of A making and maintaining allegations against him, including giving oral evidence unless her account was true and (b) that such steps were in her mind were intended to seek to protect B.

In the CPOMS entry Ms J noted the following comments by A: -

When discussing matters with the Guardian, A decided, on balance, to agree to give oral evidence in order to support B. By 8 April 2025, it is said that A knew the plan of the local authority was for her to stay in a residential placement. It is thus submitted that she had no reason to continue in her account for fear of that changing the plans for her.

The Children’s Guardian, Catherine Davies, noted the following when speaking to A: -

“I visited A in placement after school on the 01/05/25. A was happy to talk to me and told me “I think I’m going to do it”. I asked A to explain to me her feelings yesterday where she had said she didn’t want to do it. A said that she felt it “had all been a bit too much”. I also noted that A is in the middle of her GCSE exams; she had completed an eight hour Art exam on Monday and next week her other exams were taking place. We talked about how she was feeling and she said she was nervous about giving evidence but had thought about it further and had decided it was the best thing to do. A explained to me that she wanted to do it for [B].”

These matters are relevant in that they may demonstrate a genuine belief by A in the truth of her allegations and a desire to safeguard her brother by giving oral evidence. I accept that. However, that is not the only reasonable inference to draw. It is possible that having embarked on an allegation which had caused her to be placed in a residential placement in which she wished to remain based upon allegations she had consistently made she felt she had no option but to continue or fear that a failure to support her allegations might cause a change in her circumstances or impact the support she was receiving. Furthermore, she has not always regarded the situation as one of a lack of safety for B and has previously been recorded as saying that B is safe in the care of his father, D. Ultimately, seeking to draw an inference by the willingness of a party or witness to stand by their account is of limited significance alone. In my judgment, it is not, in this case, capable of carrying the forensic weight placed upon it by the local authority when seen in the context of the overall canvas of evidence.

In the witness box, D drew a plan of A’s bedroom. He accepted that he would cover A up when he went into her bedroom to turn a light off and did so on this occasion (see [H283, Line 11]).

He was taken in cross-examination to his 2^nd witness statement, approved (but not signed) on 31 March 2025. When giving an account of him entering A’s bedroom to turn off her light and TV, he agreed it was misleading to state that he had never had to go close to the bed as he could walk around it without touching it. He accepted that he was at times close to the bed. He sought to suggest that the words came from his solicitor although the statement suggests it was approved by him.

He denied ever searching A’s bed for her phone or conducting any search of her bedroom that night. He said that he had no suspicion that she was using a phone but that her bedroom door was closed.

He said that he entered the room fully dressed and did not walk into the room wearing only his underwear.

He says when he went up to bed that night he heard what he believed was the TV but not A talking to somebody. He said he would have gone to bed at midnight because he had to work in the morning.

He denied any form of sexual touching that night or at all.

Standing back, D appears to have been a good parent to B and to have worked hard to provide a safe environment for A since she was thrust into his care in 2023. The private fostering assessment of him, dated was positive. There are many qualities revealed within his parenting assessment prepared by Ms B(see contingent conclusions expressed at [ref]). He opened his home to A and in so doing, required B to move into his father’s room so that A had a bedroom to sleep in alone. In my judgment, there is persuasive evidence of reasonable parenting of A and overall, I found him a credible and reliable witness.

I adopt the Journey to ABE summary agreed between the parties.

A and her friend X had been friends since around the start of high school (year 8).

Over the 6 week school summer holidays in 2024, A would spend significant periods of time staying with X. It is clear that A enjoyed spending time within that household and had a greater degree of freedom than she experienced at home with D. This continued into the Autumn term 2024, with A spending nearly every weekend at X’s house according to Y.

Probably around summer 2024, A routinely accessed a blue iPhone at X’s home which, on occasions, she took home with her. This phone was returned to Y on occasions by D and she was asked not to allow A to use it to access the Internet or social media because of her vulnerability to sexual exploitation. The reality is, whether Y knew or not, A was likely accessing the blue iPhone on an unrestricted basis using applications such as Snapchat to speak to a range of individuals.

Y was quite defensive in her evidence about her awareness of A having access to a phone at her property when she was aware that D had discussed with her A’s vulnerabilities and the need to ensure there are boundaries about her use of social media and the Internet. In my judgment, it is likely that from about June 2024, after X had access to an additional phone, the blue iPhone became available to A. A accepted having and using the phone at X’s house. The record of a conversation between Ms J and Y suggests that A routinely used the phone from October 2024. Whether Y had given the phone to A to use or was at least aware that she was routinely using it may explain her defensiveness about the issue. In my judgment, the note is probably an accurate record of the conversation and Y was concerned to be criticised for not effectively preventing A from accessing the phone when she was aware that D had specifically requested her not to allow A access to the Internet or social media. Y appeared somewhat exasperated and said that A was able to send messages from her placement and when she was living with D from B’s laptop.

In my judgment, the issue of access to her phone and social media was a compelling motivation for A. For example, in December 2023, D describes her rifling through a stack of intended Christmas presents to find the phone he intended to give her at Christmas towards the bottom of the pile and then open it and seek to use it without agreement from him. Those actions are perhaps an indication of her propensity to act, often with little thought as to the consequence, to achieve that which she desired.

The critical difference between A and her peers was that they had mobile phones with Internet access and she did not save and except when she was staying at the home of her friend, X or when she brought the blue iPhone home with her.

The evidence suggests that Y did speak to A about offering an home to her although she described in her oral evidence as it being a light-hearted suggestion about a future option not an indication that A could move to live with them at that stage. Y said that at the date A first made allegations against D, she did think that A wanted to live with them. The conversation which took place about a week before that date offered little hints from A that she wanted to live there. She became aware that A had mentioned to X and Ms J her desire to live there with them.

A said in her oral evidence that X had asked her to come and live with her.

A had mentioned to D the possibility of staying with X on occasions.

In my judgment, A may have developed a strong wish to live with her friend and thought that this would be an option open to her. An option in which the boundaries were relaxed or essentially non-existent regarding her use of the Internet. Y did not need to act in a parental role which was in contradistinction to the role occupied by D in trying to establish boundaries and rules to keep A safe and settled in school.

In the period up to the allegations being made, A knew that D planned to move with her and B later that month. Whilst there is no evidence that she was unhappy at this prospect or appeared particularly unhappy in the care of D, in my judgment, it is at least possible that she saw this as her opportunity to move in with her friend and gain the privileges that she saw her friends experiencing and that she experienced when staying with X.

In my judgment, A had a strong motivation in the period leading up to the allegation to stake a step which would allow her to separate from D and move to live with X, Y and her partner, Z.

If indeed A did latch upon a plan to achieve her objective then I suspect it was not given significant thought nor the consequences considered to any significant extent.

I note the evidence in the Police VPA completed the evening allegations were first made by DC1 that when A was told that she could not stay with X long term that over the course of the remainder of that evening she became irate and aggressive with officers who remained at the home because of it. It is the vehemence and degree of her response which is consistent with the notion that remaining with X was a cornerstone of her desire at that point. Perhaps, it was the cornerstone of her entire plan.

By this time, and probably in the summer of 2024, it appears that X had told A about her own experience of being sexually abused. The idea was clearly one which was open to A to utilise for herself if seeking to prompt a plan to move away.

In postulating this hypothesis, I do not ignore the contraindications including the fact that A gave an ABE interview in which an account of more on one occasion of sexual touching by D was given and she agreed to subject herself to the ordeal of giving oral evidence ostensibly in order to protect her brother, B. It may be said that it is hard to explain why, having discovered that she could not stay with X, A determined to press ahead with the allegations and give oral evidence. I accept that point insofar as it goes but it does not allow me to be confident that the only answer to that question is because the allegations are true. There may be a fear of what will happen, despite learning in April 2025 that the local authority supported a plan for her to remain in her current residential placement, if she is found to have fabricated the allegation. It may be a response to the attention and support which she has lacked from a young age but is now being given within a residential placement which is meeting her needs and allowing her to socialise with other young people.

The development of her accounts is impacted by a considerable level of inconsistency compounded by problems in the investigation.

There is a background of considerable trauma which has been experienced by A over her young life and inconsistency of care or carers which have compounded her own cognitive limitations. She appears suggestible and may easily misinterpret a question asked of her. I am unable to detect any proper regard to those issues in the preparation for a rushed ABE interview following her giving a number of accounts to Y, Ms W and DC1 before being spoken to at school on the day after she made the allegations by DC2, who had limited opportunity to plan or to consider any relevant material before arranging the interview that afternoon.

Ms B was A’s allocated social worker during much of the current proceedings and noted a conversation with A on 8 April 2025: -

“Voice of the child (08/04/2025):

A was spoken to regarding a recent allegation made at school, in which she claimed that staff in her placement would slap her if contacted about her behaviour. The potential consequences of making false allegations were discussed, including how such statements could affect the way she is understood and the support she then requires. A accepted that the allegation was untrue and explained that she had made the comment in the heat of the moment to prevent school staff from contacting the placement, as she had been misbehaving. She expressed remorse and acknowledged that the comment could have serious implications. A stated she would reflect more carefully on her actions in future.

When asked whether she would speak further about the allegation made against D, A declined and stated she did not want to talk about it. She was informed that the matter may be explored through the court process and that she may be asked difficult questions in that context, as her statement forms part of the evidence. A did not engage further in discussion. When reminded that the allegation was serious, she stated, “I’m not making it up,” and then smirked. This incongruent emotional response was noted to reduce the perceived authenticity of the comment” (emphasis supplied).

This evidence provides an illustration of A’s ability to concoct a false allegation, at short notice, with little thought as to the consequences for her or the subject of the allegation. Ms B struck me as a fair and perceptive social worker, who said that the way A spoke to her undermined the credibility of the words she used. There was a contradiction. She did not, of course, suggest that this meant the allegations were untrue but it is a relevant feature. A has not, in this case, retracted the allegation.

A stayed at X’s home in the days before the night in question.

It appears to be uncontroversial that she went upstairs had a bath and spent the evening watching television in her bedroom, which was usual.

Despite the message sent by A to X at 04.00 – albeit it has not been revealed by the Cyfor examination – suggesting that D had raped her or tried to rape her, X suggested that A appeared talkative and fine that morning before school.

The initial issues at school that morning are described by Ms J.

The discussion is characterised by A’s comment that “it’s the same as what happened to X”; “it doesn’t happen all the time, about every other month”; she wanted Ms J to ask questions to which she could say yes or no; she said, “I am safe, I just don’t feel comfortable with D”; she was reluctant to speak as “me and B would be taken into care.”

Ms J telephoned Ms W. Ms J said that she believed A was alluding to being sexually abused and that she had gone home to X’s house.

A was dropped off at X’s home by D at about 15.30.

X gave an account to Police about what A told her.

A near contemporaneous record of what A said to Y after she had arrived at her property, gone upstairs with X and then come downstairs is set out in a note prepared by Ms J.

This is a note of a conversation between Ms J and Y that afternoon, which Y confirmed in her oral evidence was an accurate record according to her of what was said.

Y’s statement dated 26 February 2025 describes an account in which A began by stating that “it is something like what X has been through.” There appears to have followed a series of questions and answers, not clearly recorded, but suggestive of sexual touching. A is described as crying and then said she was worried about B as she did not want to be split up from him in case he had to go into care.

In her earlier Police statement, dated 23 December 2025, the account of Y refers to A stating that D had climbed into bed and put his arms around A. She states that A said that D had done it a few times before but she recalled specifically A saying, “that was the worst”.

In her oral evidence, Y said that it was odd that A’s allegation was almost identical to that of her daughter, X and so close in time.

By about 15.50, Ms W was aware of the content of the conversation which Ms J had had with Y about the allegation which A had made to Y.

The next account given by A was to Ms W and Ms M sometime after 16.30. The contemporaneous handwritten notes were prepared by Ms M. I accept her evidence that she was a newly qualified social worker – not then qualified in the ABE process - and regarded her sole function to take a note of the questioning by Ms W. Although Ms W suggested that she would be the lead in questioning A, I find that unlikely given she was the allocated social worker and the task was to obtain a brief account in order to determine what steps should be taken in the interim.

Ms W said that she had not completed the ABE training but was aware of the principles although she could not recall the interview structure.

Ms W said that she was told by her Team Manager to go and see A and understand what she was saying. The Team Manager had been made aware by that stage of the allegation made by A to Y. Ms W did not contact the Police. She was not aware if anyone had contacted the Police from within the local authority. She accepted that in hindsight the Police should have been involved in a joint section 47 investigation of the allegation.

She said she was aware at that time that children should not unnecessarily be asked to repeat allegations or information but the purpose was to understand from A what had occurred.

It is noteworthy that apart from the phrase, “what happened”, none of the questions which A was asked by Ms W are recorded by Ms M. It is clear from the evidence that questions were asked of A. Ms W accepted that whilst she could not recall the question she asked, she would have asked a number of questions and she would have asked her to repeat what she had said at school. She accepted why it is important to record both the question and the answer in such circumstances.

Ms M did not recall any of the questions asked by Ms W. She did not recall any discussion with Ms W about getting the Police involved. She said the only discussion of planning was for her to write the notes.

There is no reference to A’s presentation or demeanour although it is stated that she became emotional on the basis that she thought she would be allowed to stay with X and Y that night. There is a reference to “can’t stay here long term because an assessment needs doing…understands”.

Ms M said in her oral evidence that A did become emotional and cry in response to being told that she could not stay at X’s house long-term. This reflects what she said in her statement:

“A thought she would be allowed to stay at X’s that night, Ms W said that she could, but this would not be a long-term plan. A became emotional and started to cry. Ms W explained to A that she can’t stay with her friend long term because assessments will need to be completed which she understood.”

The evidence of Ms W as to this point was less clear to me. I accept the evidence of Ms M.

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Ms W refers to A being tearful and worried about B in case they go into foster care, saying “B is fine with D, it’s just me.”

The notes, however, do not suggest that A was asked to give a brief account. It appears akin to a general account, without the presence of a Police officer, in circumstances where it is not clear why such an account was being sought given the information which had already been relayed by Ms J and Y. Ms W was asked why she did not speak to Y about the information which A had given to her before interviewing A. Ms W did not recall thinking about that or speaking to her.

Ms W may well have been tasked by her Team Manager to undertake the interview but all childcare social workers, teachers and education staff should be aware of statutory guidance about managing an early allegation of abuse. These arise in imperfect situations but the basics are important. The key issue was to involve the Police and to deal with the immediate placement needs of A. Early questioning must focus on a brief account and not asking the child to repeat an earlier account. This must be recorded as fully as possible. This process did not meet that objective.

I have no evidence as to why the Police did not attend with Ms W at school or at the home of Y that afternoon. I cannot say that the Local Authority did not try to arrange a joint investigation. I do not know whether the referral from Ms J was as prompt as it should have been.

Ms W said in her oral evidence that she was not sure how long she had spoken to A but it was not a full account with all the details. I disagree in that it was clearly a detailed account, with a number of questions posed to her which, critically, went beyond eliciting a brief account, which would have been available from Y if she had been asked and the matter had been given consideration before commencing a process of questioning, poorly recorded, without the Police being present, conducted by a social worker untrained in conducting an ABE interview. The Team Manager had an important role to play in liaising with the Police and giving appropriate direction to the social workers in attendance.

For reasons which are unclear, DC1 was asked to attend to speak to A alone. She arrived around 18.50.

DC1 had very little recall of the events in question and was reliant upon her notes.

She was the fourth person (excluding X) to whom A had spoken about the allegations that day.

Her daybook entry appears and she completed the sexual offences booklet at 22.09.

During her oral evidence, she confirmed that she had also completed that night a VPA, which was subsequently produced by the local authority: Voice of The Child Report and Officer’s Report for VPA.

DC1 said that she prepared the VPA documents around 23.00 that day.

DC1 was ABE trained.

She accepted that her notes of her discussion did not record the questions she had asked A. She said that normally she would attend with another officer and a note of questions and answers would be taken.

She said she got to the property about 19.00. She said she had been given the job shortly before that time.

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DC1 could not recall whether A had been seen by a social worker that afternoon but agreed if she had known she would have wanted to see the note of any discussion they had had. She agreed that repeated questioning should be avoided. DC1 did not have a plan but ended up speaking to A for up to 39 minutes. By comparison, the entire ABE interview lasted 50 minutes. This may suggest that the account was neither brief nor limited to preliminary matters only.

DC1 accepted that if she had known that A had a social worker then ideally she would have spoken to them before speaking to A. She didn’t know why she didn’t get details of the identity of A’s social worker nor what had been said. She said that she was tasked to go to the address.

DC1 said that she prepared the Voice of the Child report with her daybook in front of her. A was most emotional when she was told that she could not stay at X’s home. The relevant part of the Voice of the Child Report reads as follows: -

“When speaking with DC1 A was polite and engaged well, she acted appropriately however when other Officers told her she couldn't stay at that address she became irate and argumentative and refused to cooperate with Officers. [B] was also present, he was calm and compliant throughout. Both children were relaxed initially and winding down, watching tv. No attention seeking behaviours displayed.”

As to A’s demeanour, the report included these comments: -

“Appearance

A was spoken to by DC1 to obtain a brief account of what had occurred, she appeared polite and willing to engage. She was wearing a clean dressing gown and looked comfortable in her surroundings - She was seen at her friend's address as her foster carer had been arrested on suspicion of sexual touching. A appeared clean and well, her friend's Mum said she had had a bath whilst at their house. A appeared upset when she was told D had been arrested, she said she was worried about going into care and being split up from B. B smiled and appeared willing to engage and comply with Officers, no concerns raised.

“Words

When speaking to DC1 about the allegation A was actively engaging and used appropriate language and tone and attitude etc. When asked how she felt, she said overwhelmed. A was sitting on the sofa and DC1 was sitting at the other end of the sofa, she had open body language and maintained eye contact throughout the conversation. When other Officers spoke to A later on to tell her that she would have to go to another address due to suitability, she became very argumentative towards the Officers, she would not give any reason why she couldn't go to her brother's paternal grandparent's address and insisted on staying at her friend's house and refused to cooperate. She eventually did cooperate after a lot of persuasion from Officers” (emphasis supplied).

Part of her record is derived from the accounts given to her by 2 other officers who remained at the property. She agreed that it was particularly oppositional for A to conduct herself in this way in relation to the Police officers.

DC1 could not recall whether A use the word inappropriately. She said she thought she did. She noted that there are no speech marks within her note and normally speech marks would be used if there were 2 officers attending one of whom would be able to concentrate on taking notes rather than taking a note and engaging with A as DC1 was forced to do. She accepted that she did ask a number of questions. She accepted it is likely she referred to A’s groin area. She accepted she is likely to have asked A if something like this had happened before. She accepted that in determining whether to interview the child and the arrangements for that interview part of the planning was to understand the child’s background, learning difficulties and any linguistic difficulties.

DC1 was thrust into a difficult task, without any proper opportunity to plan or to work in conjunction with Ms W. It is clear to me that she did not need to ask A to give a further account if there had been proper communication between the Police and the Local Authority. She would have known enough to resolve any immediate forensic enquiries and at least gain information to inform a prompt ABE interview. The work was thereafter left for DC2 to carry out with assistance from Ms W the next day.

I have watched A’s ABE on 3 occasions, the last time was shortly prior to her giving oral evidence. I have considered the transcript of her ABE interview.

The first indication of any liaison between the Police and the Local Authority was a telephone strategy meeting between DS Bradshaw and the Social Work Team Manager the morning after the allegations were reported. The result was a s.47 joint investigation. That is what should have happened promptly from the point at which it was apparent that an allegation of sexual abuse was being intimated.

DC2 was asked to speak to A and thereafter interviewed her.

She attended A’s school the morning after the allegations were reported with DC3 at about 10.00. Ms W was also present. DC3 did not take a note of the conversation for reasons which are unclear to me. DC2 said she did not ask A about the allegations (she used the term “disclosure” in her statement revealing an ignorance of long-established guidance about the risks attendant upon treating allegations by children differently from other allegations) but wanted to establish whether she would be prepared to be interviewed on video.

Another purpose of the visit was to assess A’s cognitive and communication abilities and DC2 said she had no concerns. She had no recollection about asking any questions about A’s cognitive or linguistic abilities at school nor her emotional state. She had no information about her sexual knowledge or behaviours or any particular knowledge of her family. Despite her accepting that this information is relevant and part of the effective preparation for an ABE interview in accordance with the guidelines, she formed the view that A appeared to be communicating effectively and she was not aware of any difficulties otherwise she would have sought the assistance of an intermediary. The difficulty I have with that is that assessment within these proceedings has shown that A requires support in being questioned. There was considerable information about A’s linguistic and educational abilities to be considered alongside her social care background which enquiry with the school or social care would have revealed. There is no evidence that any attempt was made by DC2 to consider the need for intermediary assessment or even to obtain basic information which would have been readily available from Ms J if she had been asked. In my judgment, it is too simplistic simply to discern whether A was capable of giving an intelligible account within a brief exchange at school when there was an obvious risk that the quality of her account may be impacted by her not understanding or misunderstanding the questions asked of her. Given that D was in custody it may be that there was a desire urgently to secure an ABE interview from A, which prompted an inadequately planned ABE interview.

It is unfortunate that despite 2 officers attending upon A and subsequently B there is no note or record of any discussion. The court is left with, at best, an imperfect recollection by DC2 as the content of those discussions.

DC2 did not recall seeing the log entry by DS1 summarising the account given by DC1.

DC2 did not recall reading, before the ABE interview, the VPA prepared by DC1. She did say that she would have used the sexual offences booklet to help her plan.

DC2 did not know that the allegation made by A was similar to one that had been made by her best friend, X.

DC2 accepted the rushed nature of the process she adopted. She said that she had met Ms W when she went to speak to A and then B.

DC2 did not recall seeing any note of discussion between A and Ms W. She did not recall speaking to anyone else at school although she knew that the safeguarding lead, Ms J had been present at some point.

Her plan was prepared on the day of the interview. It is brief and appears generic. There is no reference to any consideration of special measures, A’s background or whether she would benefit from an intermediary.

In my judgment, the planning for the ABE interview was lacking. There ought to have been some consideration recorded as to the relevant background including A’s cognitive and communication needs. The assessment conducted by DC2 appears to have been superficial. She does not appear to have been aware of all relevant information available to her but in fairness to her, she was tasked with ascertaining whether A would agree to an interview and thereafter with conducting an interview. In my judgment, that process has not assisted in producing an ABE interview which was careful in ensuring that A was able to give an account that she wished of what she says had happened to her. Given this was the 6^th account (including to X) given by A, it was particularly important to ensure it was constructed and conducted with care. Whilst I am sympathetic to the practical realities and demands facing professionals in this context, the purpose of the ABE guidelines is to ensure so far as possible that the child or young person is given a fair opportunity to give an account which may be afforded proper weight at trial. The absence of any consideration or provision of an intermediary was a significant omission.

A gives a narrative account. She said the time when D came into her room was “like 12 o’clock” and he said, “what you doing up?” She replied, “I just turned my TV off to go to bed”. Rather than enter her room and get into her bed, she says that he went to bed and then a few moments later came back into her room and turned her “little light off”. He then got in bed with her under the covers and started touching her “inappropriately”.

It is open to question whether given the number of undocumented questions A had been asked within the hours preceding this interview, she would have used the word “inappropriately” herself or whether it is a reflection of what she had been exposed to in terms of vocabulary over the repeated periods of questioning.

A was asked about time again and she confirmed that D came up to bed at 12 o’clock and she was going to sleep around that time. In fact, the evidence demonstrates that A had been engaged in near constant communication on her phone surreptitiously over the course of that evening up to and after 12 o’clock. In my judgment, it is improbable to believe that she was intent around midnight on going to sleep because her messaging did not stop insofar as the schedule of messages can reveal a partial record of her engagement with third parties.

She is asked if there is any more information she can provide and A says, “not really”. She does not give any experiential detail about the event. She describes trying to go to sleep but couldn’t so she “just ignored” what he was doing. At one stage, when asked how she was feeling during the alleged touching, she said “weirded out”. She said she could not go to sleep because she was “very traumatised”. She does not offer any other detail and if true, her reaction is not revealed in the messages she continued to send. However, that does not mean she was not impacted by the behaviour if it happened.

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When asked how many times “this” had happened before, A said “[a]bout 2 or 3 times.” In other words, she confirmed an occurrence of 3 or 4 times in total. When asked to describe the previous incidents, there was no attempt to establish any chronological order. In relation to the previous incidents, the question was asked, what would happen? A answered, “[t]he same basically”. Again, rather than attempt to establish any order or to distinguish between them, the question was asked, “[i]s anything different?”

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It is noteworthy that A offers no information about any other allegation. She states that she cannot remember anymore. A had earlier agreed that there were 4 or 5 incidents of this type in total. She had described 2 incidents within the ABE interview. It is DC2 who prompts A by asking whether she thinks there are just 2 incidents. A readily agrees. It is an open question as to whether this is a reflection of the poor planning and lack of support for A within the ABE interview, the impact of A’s fatigue, an inappropriate suggestion by DC2 or simply an inconsistency in an account given by A which otherwise lacks the detail which might be expected in a genuine account.

Even when DC2 inappropriately pushes A to provide further information (“Briefly? I don’t want briefly. I want everything, A”), A replies, “[t]hat’s everything.”

The Local Authority’s pleaded case is that abuse occurred on the night in question and on another occasion before then but after May 2024.

Was it a few times with the incident standing out as the “worst” according to the evidence of Y?

Were there up to 3, 4 or 5 incidents or just 2 incidents (ABE interview)? Was it every other month? Was it just the once?

On 8 April 2025, A told Ms B that “it happened only once, although she had previously told the Police that it occurred on more than one occasion”. Ms B said in her oral evidence that she gave A the opportunity to consider what she said about frequency of occurrence and A said she was sure it only happened once. I accept the evidence of Ms B and regard this as a significant point of inconsistency.

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Why is there such a lack of experiential detail?

Why is there such limited evidence of sexual gratification by D? Is it memory? Is it because it is based on a façade erected from knowledge of what happened to X, which A learned possibly in about summer 2024 but certainly before the allegations arose in this case?

Is this a limited and inconsistent account reflecting in part professional failings but which at its core is true?

Ultimately, can I be satisfied that the Local Authority have met their burden of proof on the balance of probabilities?

I have considered the written submissions filed on behalf of each party. Although I shall make some observations as to the submissions made by the parties, I do not intend to rehearse or respond to each point but I have had regard to them in establishing the path of reasoning which I have endeavoured to express in this judgment.

Ms Ross reminded the court to look at the substance of the allegations made by A. She accepts that a joint visit with the Police should have been undertaken and the questions asked of A ought to have been included within the notes. She submits that Ms W had an understanding about the types of questions which were appropriate and the court should find it likely that the answers recorded were the result of appropriate questions. In my judgment, this submission misses the point. Firstly, the purpose of recording the questions is to understand the account. If the questions had been recorded and were confined to that which was necessary to deal with the immediate position then there would be no uncertainty as to the extent to which language was prompted by the question put. The larger problem is that particular caution should have been exercised given that A had already spoken to Ms J, X and Y about what had happened and there had been no strategy discussion with the police and no plan to arrange a joint section 47 investigation with an interview conducted by either a police officer or social worker appropriately trained in the planning and conduct of an ABE interview.

A detailed knowledge of the ABE process should not have been required given the long-standing statutory guidance to professionals about the management of allegations of abuse.

Ms Ross accepts that it is regrettable that DC1 did not have any information from Ms W and was not attended by another officer so a proper note could be taken. Although, again, Miss Ross submits that the court should assume that DC1 asked appropriate questions, the absence of proper recording does not assist the court in doing so. Furthermore, the issue of the need for A to repeat her account again to DC1 is not addressed but is in my judgment a relevant consideration.

Ms Ross accepts that criticism is fairly made of the process leading to the ABE interview, including the lack of consideration of the need for an intermediary and the limited gathering of information to inform the planning process. Nonetheless, she submits that the interview is persuasive given that it was conducted swiftly and gave A an opportunity to give a narrative account of what happened followed by a number of open questions (save where detail is requested from A’s words). I accept that there is an account given freely by A and a number of appropriate follow-up questions although I express some concern about some of the questioning by DC2. I accept that A did not seek to exaggerate or embellish her account, quite the contrary, her account lacked detail which may be, at least in part, a reflection of her ability in the context of a traumatic experience.

In evaluating the evidence of D I have considered the observations made by Ms Ross in paragraph 48 of her submissions.

Ms Ross accepted in paragraph 56 of her submissions that there were elements of the process following A’s allegations which should have been conducted differently. The number of visits by social work and police professionals should have been streamlined with a clearer focus on the purpose of each visit, alongside greater communication between professionals and record-keeping, which should have been better. However, her principal submission is that the departures from the guidance had not had a fundamental impact on the reliability of A’s evidence.

In my judgment, A was a young person whose evidence needed careful adherence to the guidance in order to give her an opportunity to give an account to the best of her ability. In my judgment, the absence of an intermediary was a significant misstep. The absence of proper planning to deal with the chronology of her accounts may have contributed to the picture of inconsistency. The timing of the ABE and A’s evident fatigue may also have played a part. The fact that there were unnecessary repeated accounts provided, which are not properly recorded, offers an increasing risk that the account she has given has been impacted by that repetition. The absence of any strategy discussion on the day the allegations were made - whatever the reason - contributed directly to the absence of communication and coordination that followed. That is not to say that I regard the failures as so fundamental as to overwhelm the account given by A. However, cumulatively they have reduced the weight that I have placed upon the ABE interview seen in the context of A’s oral evidence and my overall analysis of the case. The uncomfortable reality is that it is possible that there is a core of truth in what A says but weighing the evidence as a whole, I cannot be satisfied that the local authority have proved that on the balance of probability and in a binary system that results in a finding that the alleged abuse did not occur.

I have considered with care the detailed submissions of Mr Twomey KC and Mr Steward. I have addressed the key elements of them within the body of this judgment and it is otiose to repeat them here.

I have not repeated but acknowledge the detailed analysis of inconsistency set out within the submissions.

Mr Senior developed his submissions in a balanced way. He observes in paragraph 19 that the Children’s Guardian is “acutely aware of the flaws in the process of investigating A’s allegations and that the court may ultimately come to the conclusion that, taken together, they sufficiently undermine the weight that can be attached what A is reported to have said to the extent that the burden of proof which the local authority bears is not discharged.”

I have taken into account the points which he advances in paragraph 21 in support of A’s allegations. There are, as he submits, common features to the accounts given by A. Ultimately, my task is to assess the canvas of evidence and the common features and inconsistencies of her accounts alongside the deficiencies in the process leading to ABE measured against the evidence and assessment of D.

The accounts taken by Ms W and DC1 contravened significantly the ABE guidance at paragraph 2.7. The planning and process leading to the ABE conducted by DC2 fell significantly short of the requirements of the ABE guidance, which I have already sought to summarise. Overall, whilst I have every sympathy for the desire to ensure a prompt interview was conducted with A, it came at the cost of needless repetition of accounts which went beyond that which was necessary to deal with the immediate priorities of the Police and the Local Authority and a rushed ABE marked by the absence of sufficient planning.

Standing back from the forensic landscape, I am not satisfied that the local authority have established on the balance of probabilities that D sexually abused A as alleged. A gave an ABE interview which included an opportunity to give a free narrative account. That was at least the sixth occasion she had been asked questions about her account within the period from school on the day the allegations were first made until the ABE in the early afternoon of the following day: (a) Ms J; (b) X (upstairs at her home); (c) Y (downstairs at her home); (d) Ms W; (e) DC1 and (e) DC2.

From the point on the day the allegations were first made when Ms J was aware at the very least of the implication of sexual abuse, what should have happened is that a referral should have been made to the local authority who should have contacted the Police promptly. There should then have been a section 47 joint investigation led by the Police. They should have attended the school where they could have discussed what further information was needed to elicit an account sufficient to understand whether forensic evidence should be retained, whether an ABE interview should be conducted and what planning was necessary to ensure it was conducted properly with relevant information about A’s cognitive communication abilities together with the social care background to her life. Arrangements should have been made for A not to be collected by D.

What in fact happened is that Ms J contacted the Local Authority and at some stage spoke to A’s social worker, Ms W. There was no attendance at the school and it is unclear what time Ms J made the referral to the local authority. The consequence was that A left school and was taken by D to X’s house.

That then led to A arriving at X’s house, speaking to X upstairs and after a few minutes coming downstairs during which she made allegations to Y. Her comments and the questions which are likely to have prompted them were not recorded.

Ms W was aware shortly after 15.50 that Ms J had spoken to Y who had reported a specific allegation of sexual abuse against D.

At that point, it is not clear what Ms W was intent upon doing. It appears to me that she was doing her best to follow the instruction she had been given by her Team Manager to attend upon A. It is not clear to me whether and if so how many attempts were made by the Local Authority to contact the Police to arrange a joint visit as part of a section 47 investigation. It may well have been the case that in the absence of any effective Police response, the local authority felt it necessary to attend upon A alone. I simply do not know why the local authority and the Police did not discuss this case and arrange a joint visit during the school day or if that was not possible shortly thereafter.

Rather than speak to Y, consider whether it was appropriate to undertake any further questioning of A in the absence of a Police officer or at all and then consider the welfare issues such as the placement of A, it appears that Ms W determined to conduct an interview of A. In my judgment, this was not appropriate nor was it necessary given the information which was available that A had by that stage made a specific allegation of sexual abuse and the Police had not yet become involved in organising and planning for an ABE interview.

The notes prepared by Ms M do not record the questions asked. Therefore, it is unclear to what extent leading questions or other inappropriate questions were used to elicit the responses. There is no reference within the notes to A’s affect, demeanour or presentation.

In my judgment, the notes went further than eliciting a brief account.

DC1 spoke to A at about 19.00. She was not accompanied. Therefore, there was nobody to take a careful note of the questions she asked and the answers which were given by A. She was left to try to take a form of hybrid note. DC1 appears to have been unaware of the early accounts given by A to Y and to Ms W. In my judgment, her questioning was unnecessary and there was already sufficient material for her to determine whether there was a basis to consider steps to obtain forensic evidence or to begin planning for an ABE interview. She proceeded to ask A to give a further account of the allegation. By the time she completed the VPA, it was possibly 23.00 and the further tasks were assigned to DC2 the following morning.

In my judgment, the absence of proper planning and information exchange between the school, the local authority and the Police led to unnecessary repetition of the allegations in circumstances where the records, lacking key detail in terms of the questions which prompted the answers given by A. The fact of unnecessary repetition of the allegations is a negative feature when considering the context of the ABE interview. It should not be necessary, as submitted by Ms Ross for the local authority, for the court to find that it is likely that the questions posed to A were not leading or otherwise inappropriate. If the professionals concerned had followed statutory guidance and sought to elicit a brief account in order to establish what steps were required immediately in furtherance of an ABE interview and immediate welfare steps then repetition of accounts would have been avoided and there would be no evidential lacuna as to the questions which were put to elicit the account which is recorded.

DC2 was tasked with speaking to A at 10.00. Although she was accompanied by DC3, it is perplexing that he did not appear to have been given any role when one might have assumed he would have taken notes of the conversations. In her oral evidence, DC2 suggested at one stage that when she spoke to B it may have been investigative in part although no note was taken in that respect either.

DC2 noted that the planning for the ABE interview was brief and rushed. I can well understand why the Police were keen to conduct an interview as promptly as possible. However, for it to be given the appropriate weight, the forensic task must be completed with due care. A did not have an intermediary to assist her. A did provide an account as part of a process of free narrative recall. There was no proper record to indicate whether DC2 had analysed to any extent A’s particular needs. The process was, in my judgment, marked by the absence of planning. It did not comply with the Guidance.

In my judgment, the proper functioning of a joint investigation intended to achieve the best opportunity for A to give an account of an allegation was missing in this case. I do not and cannot on the evidence before me determine the measure of responsibility across each body or organisation for the failures but it should be obvious that the process did not lead to the care and planning which A was entitled to expect.

The ABE interview itself, seen in the context of the overall canvas of evidence suggests a number of inconsistencies and concerns about the reliability of A’s evidence.

Y noted that A’s allegations bore a striking similarity to the allegations which had be made by her daughter X; it may not be a coincidence that this is the case.

A has not been clear as to whether there was one incident, one or two incidents, two or three incidents, three or four incidents or about every other month. Could A remember them or were there just 2 incidents? Was the second after her birthday, after the summer holidays or a few months ago?

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A’s account is not detailed and lacks any sense of experiential detail even when she is led to a choice.

In her oral evidence, having taken considerable care over the arrangements for her to answer questions, when asked what happened A provided no detail beyond writing down that D got into bed with her (“he came in my room and got in my bed”.)

In this case, there is the added element of a clear motivation on A to find a way to achieve a move to live with X which she probably thought was a possibility given the nature of a conversation she had had with X and Y. In my judgment, the content of the VPA prepared by DC1 derived from the observations of herself and other officers who had remained with A provides reliable evidence as to the importance A placed upon living with X.

In my judgment, the pattern of phone usage of A overnight on the night in question demonstrates her reliance upon social media and her phone. It is perhaps hard in circumstances removed from her particular position to understand how significant a component of her life these virtual encounters were. Yet, she knew that and she was always at risk of being discovered on the phone and it being removed for as long as she lived with him. The contrary was true of her experience of staying with X.

The schedule prepared by Ms Ross relating to A’s use of social media and her phone is not a complete record. Therefore, some caution is required when assessing the absence of data regarding messages which may have passed between A, X or third parties over the relevant period. I note, however, the following features: –

The evidence of Ms B reflects the fact that A has shown the ability to be dishonest about a serious allegation made in furtherance of a short-term desire to avoid a potential negative consequence for her behaviour. Although I do not place any significant weight upon Ms B’s observation of the smirk, she is a perceptive and balanced social worker whose observation of the incongruity is relevant.

Thus:

I have taken into account the submissions made by Ms Ross and Mr Senior as to the negative consequences for A of maintaining her allegations including the fact that she agreed to give oral evidence. The fact is that A has not retracted her allegation despite the passage of time and confirmation on 8 April 2025 that she would continue to be cared for within a residential placement. She has lost her friendship with X. She has not been placed with B and is aware that he is placed away from D. I do not regard this as a question which can be answered with confidence still less relied upon as offering a counter to the problems in A’s account.

Correspondingly, I do not detect any significant risk factors surrounding the parenting provided by D beyond the existence of the current allegation. He received a highly positive report by the local authority when they were assessing placement of A with him as a private fostering arrangement. He has engaged well within the assessments prepared by Ms B. He has been committed to engaging in work within the nurture programme. His approach towards rules, boundaries and sanctions appeared balanced and appropriate (for example, restricting A’s use of a mobile phone and ability to watch television in her room where her behaviour in school had deteriorated).

He was defensive when asked questions surrounding the occasion in October 2024 when he flicked A in her face. D did accept that he was angry and in my judgment did lose control resulting in him flicking A in the face which appears to have been an inappropriate but isolated loss of control. D has parented B effectively.

The second area in which he was defensive was in relation to a statement which he approved which did not properly reflect his case and appeared to seek to remove him from proximity to the bed in A’s room. I take that into account but do not find it in itself significant in the context of the overall canvas of evidence.

Ms B deals with this incident in her parenting assessment. She did not have any specific recollection of the conversation or the description given by D.

In her oral evidence, A accepted that D used his finger to flick her in the car and this upset her.

I accept that D lost control and that he did flick A in the face which might have been regarded by others as a form of slap but either way was not justified or appropriate in managing a difficult situation with a young person aged 15 years old. Use of force in those circumstances is capable of supporting a threshold finding notwithstanding the reality of the range of parenting which children and young people experience daily.

However, as Ms B notes, D presented generally as a calm and reflective parent able to regulate his emotional responses. In her oral evidence she accepted that he had been reflective, open and able to remain composed during moments of challenge. Where he had struggled at times to remain composed, for example when there had been a change in a contact plan which she had proposed to the local authority, she accepted the reasons for his response.

I am satisfied that D flicked A with his finger in anger and frustration at the scene in the car. It was an isolated and unreasonable physical assault fuelled by a momentary loss of control. He did accept responsibility promptly.

That is my judgment.