Y and E (Children) Sexual Abuse Allegations) [2019] EWCA Civ 206 Family case note

This case was an unsuccessful appeal against findings made in care proceedings that the father of Y had sexually abused her.  The findings made by the Judge of first instance can be found at paragraph 14 of the Court of Appeal Judgment.  The Judge of first instance considered 3 ABE interviews of Y and concluded, when looking at all the available evidence that Y was a truthful witness.  Y’s evidence was preferred in preference to the denials of her father.  

The father appealed the case on the following basis:

1. The Judge failed to direct himself correctly or adequately as to the applicable law;
2. As a consequence, he failed to analyse the evidence of the previous social worker, CG, which he wrongly rejected as merely her opinion as to the child’s veracity rather than primary evidence to be weighed in the balance;
3. On the other hand, he wrongly accepted without criticism the opinion evidence of a subsequent social worker and a police officer;
4. He failed to address the evidence that the child had been shown photographs of her anogenital region as a baby and told that this represented evidence that her father had abused her;
5. He failed to consider a chronological inconsistency as to when and to whom the child made her allegations;
6. He failed to address serious problems with the ABE process. 

Lord Justice Baker gave the lead judgment.  In respect of the ABE interviews, he acknowledged that the Judge of first instance had not analysed the deficiencies but he had and did not consider the deficiencies significant enough to render the interviews of no evidential value therefore the Judge of first instance was entitled to make findings on the basis of the compelling account of Y. 

This case raises again the practice and procedure that should be applied when dealing with cases where significant allegations are made by children.   

General Observations on Practice and Procedure 

• The dos and don’ts information needs to be given to all social workers involved, contact workers, teachers, carers and any other professionals that come into contact with the children.
• No professional should question the children regarding the allegations.  The allegations will have already been recorded perhaps by a teacher, childline, the police and the children may have already been ABE interviewed.   
• All social workers, carers and contact supervisors involved in the case should read and follow March 2011 Guidance “Achieving Best Evidence in Criminal Proceedings: Guidance on interviewing victims and witnesses, and guidance on using special measures”. 
• ABE interviews should be conducted by trained professionals.  None of the children should be provided with false or misleading information or encouraged to give accounts which they are not providing organically. 
• Any allegations made / further information given by the children to anyone (school, social workers, contact workers, carers) needs to be recorded by hand as soon as possible after the allegation is made.  The date and time of the recorded should be noted along with an approximate of the time of conversation if the note is not contemporaneous.  Whenever social worker’s visit the children they should ensure that they have a notebook with them so contemporaneous notes can be taken. 
• All handwritten notes must be kept even when the notes have been inputted onto the computer system. 
• Local Authorities must be aware of their duty in respect of contact and must be proactive with the police’s decision making and assist, where possible and appropriate, by asking for bail conditions to be varied to allow supervised contact. 
• There should be no informal conversations with the police.  Everything should be recorded and able to be evidenced in writing. 
• If issues arise with police disclosure the police should be reminded of ‘Protocol and Good Practice Model (October 2013)’, which requires “timely and consistent disclosure of information and documents from the police and the CPS into the Family Justice System” (3.4).  If the police wish to delay disclosure on grounds that it may prejudice an ongoing investigation, it should be raised with the Local Authority and/or the court, and the court determine the matter.  The police must always be able to justify the claim of prejudice to an investigation. 
• The duty of Local Authorities is simply to present the facts – all of the facts – it is a matter for the court what it does with those facts.  There must be no failures in the disclosure of evidence. 
• All witness statements should be carefully checked by the maker before the statement is signed.  If the statement contains information obtained by a prior social worker then the statement must say so. 
• Any requests for a statement from a police officer involved in a parallel investigation should be made to the District Safeguarding Inspector in writing. 
• If parties wish to rely on expert evidence obtained in criminal proceedings, the evidence must conform with Part 25 and PD 25 FPR 2010 requirements.
• In respect of medical examinations, the investigating officer / Local Authority must be satisfied there is a proper basis for intimate medical examination.  Local Authorities should coordinate enquiries with the police to avoid repeated medical examinations.  The parents should always be consulted about medical examinations and they should receive a report of each examination as should the court. 

Natalia Levine

Parklane Plowden Chambers

1st April 2019