Re H (A CHILD) [2014] EWCA Civ 232
FACTS:-
This was an application for permission to appeal the findings of fact in March 2013 against a young man, A. The local authority resisted the appeal. As a result the judge approved a care plan for adoption presented by the local authority and made a placement order in respect of a baby, B. B's mother was unable to care for the child, but the maternal grandmother wished to do so. The problem identified in relation to that position was the fact that in the maternal grandmother's household lived a young man, A, against whom allegations had been made in 2010 of sexually inappropriate behaviour with three brothers who were his cousins by marriage. The local authority's position that was that if A had been involved in sexually inappropriate behaviour with his cousins, then it was not safe for B to live there. An independent social worker came to the opinion that if it was not proved that A had been involved in sexually inappropriate behaviour.
The local authority submitted that the judge was plainly wrong to rely on the Achieving Best Evidence (“ABE”) interviews of the three cousins when that was the only evidence of the allegations against A and b) that the essence of a proportionality evaluation of the options was missing. The loca authority’s counsel had highlighted the flaws in those records which he submitted were sufficient to render the content unreliable.
JUDGMENT:-
Lord Justice Ryder referred to the 2007 guidance "Achieving Best Evidence in Criminal Proceedings", which was the multi agency best practice guidance that made strong recommendations to those presenting the evidence of children to courts, both family and criminal alike. He referred to the case of TW v A City Council [2011] 1 FLR 1597 where the agreed failings in the interview process in that case so contaminated the children's materials that no reliance could be placed on the same. The failure were as follows:-
a) The boys had been questioned by their own mother and by an aunt in a period of a week during which no-one knows what happened.
b) There was no planning for the ABE interviews and, therefore, no knowledge on the part of the interviewer about the boys' family circumstances, including the house in which it was said the abuse occurred.
c) The interviews themselves were seriously flawed containing as they did graphic examples of the following:
Ryder LJ said that the failings in the ABE interview process were very troubling, but the judge had considered those failings. He set out the findings that he made in his judgment, and he was not wrong in the exercise that he undertook. There was one part of the order that should be corrected. The judge had said that A had attempted to perform anal sex although he said that it was not clear whether there was any significant penetration. Ryder LJ would correct that to "I make no finding on the evidence that there was penetration" and accordingly there was no finding on that issue at all. For these reasons, Ryder LJ would refuse permission and dismiss the appeal.
Sir Stanley Burnton and Lord Justice Lewison agreed.
This was an application for permission to appeal the findings of fact in March 2013 against a young man, A. The local authority resisted the appeal. As a result the judge approved a care plan for adoption presented by the local authority and made a placement order in respect of a baby, B. B's mother was unable to care for the child, but the maternal grandmother wished to do so. The problem identified in relation to that position was the fact that in the maternal grandmother's household lived a young man, A, against whom allegations had been made in 2010 of sexually inappropriate behaviour with three brothers who were his cousins by marriage. The local authority's position that was that if A had been involved in sexually inappropriate behaviour with his cousins, then it was not safe for B to live there. An independent social worker came to the opinion that if it was not proved that A had been involved in sexually inappropriate behaviour.
The local authority submitted that the judge was plainly wrong to rely on the Achieving Best Evidence (“ABE”) interviews of the three cousins when that was the only evidence of the allegations against A and b) that the essence of a proportionality evaluation of the options was missing. The loca authority’s counsel had highlighted the flaws in those records which he submitted were sufficient to render the content unreliable.
JUDGMENT:-
Lord Justice Ryder referred to the 2007 guidance "Achieving Best Evidence in Criminal Proceedings", which was the multi agency best practice guidance that made strong recommendations to those presenting the evidence of children to courts, both family and criminal alike. He referred to the case of TW v A City Council [2011] 1 FLR 1597 where the agreed failings in the interview process in that case so contaminated the children's materials that no reliance could be placed on the same. The failure were as follows:-
a) The boys had been questioned by their own mother and by an aunt in a period of a week during which no-one knows what happened.
b) There was no planning for the ABE interviews and, therefore, no knowledge on the part of the interviewer about the boys' family circumstances, including the house in which it was said the abuse occurred.
c) The interviews themselves were seriously flawed containing as they did graphic examples of the following:
- no understanding of the difference between truth and lies and/or the effect of telling lies on the part of each of the cousins.
- no rapport or ordinary conversation so as to allow the boys to settle and gain appropriate professional trust in the interviewers.
- no free recall or an opportunity for spontaneous recall of what it is that the boys reflected upon.
- seriously leading questions, both open leading questions and closed leading questions, in both cases tending to suggest either that an answer must be known to them or indeed, what the answer should be.
- a confusion between asking the boys to recall what has happened and what they had previously told their mother had happened.
- inaccurate rehearsal or summarising of what the boys had said in interview.
Ryder LJ said that the failings in the ABE interview process were very troubling, but the judge had considered those failings. He set out the findings that he made in his judgment, and he was not wrong in the exercise that he undertook. There was one part of the order that should be corrected. The judge had said that A had attempted to perform anal sex although he said that it was not clear whether there was any significant penetration. Ryder LJ would correct that to "I make no finding on the evidence that there was penetration" and accordingly there was no finding on that issue at all. For these reasons, Ryder LJ would refuse permission and dismiss the appeal.
Sir Stanley Burnton and Lord Justice Lewison agreed.