Uncorroborated children’s allegations – procedureKerrie Broughton
This article summarises a recent appeal against findings of fact made in the family court. It’s an interesting case as it serves to remind practitioners of the factors that should be taken into account in considering the investigation procedure when the court is dealing with uncorroborated children’s allegations. Will Tyler QC, a member of Park Square Barristers, acted for the appellant.
In the matter of Re E ( A Child)  EWCA Civ 473 McFarlane LJ gave the lead judgment in an appeal against findings made in a finding of fact hearing dealing with uncorroborated children’s allegations of sexual abuse made by siblings initially to their foster carers after they had been removed into interim foster care for different reasons. The allegations also included allegations against Child A.
The case is interesting to practitioners as a reminder of the judicial analysis required in circumstances where the evidence hinges solely upon uncorroborated allegations made by children.
In his judgment McFarlane LJ specifically considers a number of issues, in particular:
- The approach to determining whether a child witness should be called;
- The weight to be given to defects in both the process and the content of ABE interviews with child victims and witnesses;
- The approach to be taken by those representing a child where that child is accused of being a perpetrator;
- The basic requirements of due process necessary to meet the Article 6 rights of a child to a fair trial where that child might be regarded as a perpetrator of abuse or a victim of the same or possibly both.
Allegations by children – no evidence to corroborate
In this matter, the children had made significant and serious allegations of sexual abuse including allegations that the abuse had been recorded, yet despite extensive police enquires no corroborative evidence was found. There had been a thorough investigation into the finances and electronic equipment of the parent/ alleged perpetrator, medical examination of the children and even the smashing of a hole into a wall space where one child had alleged that there was a hiding place – nothing of significance was found. The court was therefore only ever going to be in the position of having to make a decision based upon the evidence of the children alone.
No application was made for Child A (who was also alleged to be a perpetrator) to give evidence although an application was made on behalf of the parents for the three children who were solely complainants (as opposed to alleged perpetrators) to give evidence. This application was refused at the Issues Resolution Hearing by the trial judge.
The grounds of appeal
The grounds of appeal were that the trial judge had erred:
- In the analysis of the evidence of the three complainant children and their mother;
- In the analysis of the evidence of child A, the alleged perpetrator;
- In making findings beyond those sought;
- By having, in effect, reversed the burden of proof;
- By failing to take account of the errors in ABE procedure inherent in the police investigation/ assessment.
The appeal was allowed and the findings set aside on the basis that it was a matter for the Local Authority and /or the family court to determine whether or not the matter warranted a re-trial. It should be noted that the factors that influenced McFarlane LJ largely related to process, procedure and the trial judge’s analysis of these factors.
Failure to follow ABE procedures
In this case, a number of unusual features occurred as part of the police investigation. One was that during the DVD interview of child D, the child demonstrated a marked change in demeanor after having left the interview room for an hour (the tape remained running). Secondly, the investigating officer undertook what was described as a ‘fast track interview’ with the child post DVD interview, at the child’s foster home. Further, the usual expectation that the interviewing officer would attempt to establish that the child understood the importance of telling the truth and the difference between truth and lies did not appear on the DVD. There was also no record of this having been done off camera.
Despite these particularly unusual inconsistencies with normal ABE procedure, the trial judge refused an application by counsel for the parents to call the investigating officer for the purposes of cross examination. McFarlane LJ took the view that the subsequent ‘fast track interview’ should have led the trial judge to have exercised caution regarding the reliability of the earlier process.
McFarlane LJ found that: ‘The departures from the ABE guidance required the judge to engage with a thorough analysis of the process in order to evaluate whether any of the allegations that the children made to the police could be relied upon’ and further found that the trial judge was not in a position to make the finding that she did- that the ABE material was reliable –‘in absence of a full and thorough evaluation of the potential impact of the numerous breaches of procedure’.
Shortcomings in judicial analysis
In particular, the following aspects of the trial judge’s judgement were criticised:
- The judgement summarized the children’s interviews without context and this was not preceded by an account of their initial disclosures which were made to their foster carer.
- No consideration was given to the potential for the manner in which the allegations were first made to impact upon the reliability of what was subsequently said by the children.
- In the absence of corroborative evidence, the judge failed to evaluate factors that militated against the truth of the allegations.
- The judge failed to take into account that other false allegations had previously been made against others by C.
- The judge wrongly concluded that the evidence of each child corroborated the other. In doing so, she failed to undertake an adequate analysis of the inconsistencies both internally for each child and as between the three children.
Most significantly for McFarlane LJ, the trial judge’s analysis of the content of ABE interviews and analysis of inconsistencies gave cause for concern. He found that whilst it was quite right to note that the fact that there are inconsistencies demonstrated that the children were not working to ‘a script’, this did not obviate the need for the judge to evaluate all of the inconsistencies in detail and that the approach of the judge was ‘broad brush and superficial’.
Application for children to give live evidence – procedure
On the issue of calling the children to give evidence, McFarlane LJ noted that the application had appropriately addressed the factors to be considered as outlined in Re: W (Children) (Family Proceedings: Evidence)  UKSC 12  WLR 161 but in making the decision to refuse the application, the judge had failed to properly analyse and consider those factors and indeed, the trial judge had not even seen the DVD interviews at that point. He recorded that in his view, before considering such an application, it would be good practice for judges to consider a written report from the children’s guardian and submissions on behalf of child/ children to enable them to balance any harm to the child in giving evidence against the possible advantages of hearing the child / children to assist the court in determining the truth. As a further point of guidance to practitioners it is also worth noting that he further indicated that: ‘If the ABE interview process is poor, and there is little or no other evidence, then it may be that no findings of fact in accordance with allegations made by a child can properly be made unless the child is called to give evidence.’
Representing a child who is an alleged victim and an alleged perpetrator
Of particular relevance in this case for those representing children, is the discussion around the potential conflicts arising for the children’s guardian and children’s solicitors representing children who are both alleged victims and possible perpetrators. McFarlane LJ questioned the manner in which the children’s guardian had sought to obtain Child A’s instructions on the allegations made against him and further pointed out that at no point had the question of legal professional privilege been discussed with him. He felt that no reliance could be made upon the comments made by Child A to his guardian on the issues raised in the threshold document – not least because they could be interpreted as a reference by him to earlier experiences of sexual abuse at the hands of uncles.
Uncorroborated children’s allegations – issues arising
Ultimately, this appeal succeeded because:
- The judgement failed to acknowledge and analyse the numerous and substantial deviations from ABE procedure;
- The application for the investigating Police officer to give evidence should not have been refused;
- The analysis of the children’s evidence – particularly with regard to the inconsistencies in their individual accounts and as between them was inadequate;
- There had been an inadequate analysis of the factors already established in Re W in refusing the application for the children to give evidence;
- Child A’s Article 6 rights were breached in the manner in which his instructions had been sought and further, in the failure for him to be advised appropriately about legal professional privilege;
- The analysis of what Child A said to the children’s guardian was confused and inadequate. The Judge did not consider that Child A could be referring to historial abuse from uncles.
Kerrie Broughton is a member of the Park Square Barristers family team. She regularly acts for local authorities, parents and children in complex care proceedings.