A senior judge has hit out at police errors in gathering and analysing evidence in the case of a 13-year-old boy alleged to have perpetrated sexual abuse against three children from another family.
Sitting in the Court of Appeal, Lord Justice McFarlane said the “numerous and substantial deviations from good or acceptable” practice by officers had denied the boy his right to a fair hearing and meant facts found as part of care proceedings for him and the other children had to be set aside.
Lord Justice McFarlane drew particular attention to the “undoubted flaws” in the achieving best evidence (ABE) interviews conducted with the three children (referred to as the Fs) who alleged that the boy and his father had sexually abused them and forced them to engage in sexual acts with each other, sometimes filming these.
The F children, aged seven, 10 and 13 at the time, were placed in foster care after they and the boy (referred to as A) were caught stealing sweets and batteries from a shop in February 2015. Police then found all of the children’s parents “in an inebriated and aggressive state” at one of their homes, and the children were all taken into police protection overnight. A was returned to his parents but care proceedings were issued for the F children and they remained in foster care.
In May 2015, the youngest child told her foster carer that A and his father had sexually abused her and her brothers. She told the carer further details a few days later and her brothers made allegations that in part backed these up. ABE interviews were carried out with the F children after the foster carer reported her concerns.
Police also interviewed A and his father under caution. The boy made no allegations against his father and initially denied any sexual behaviour had taken place. Officers investigated hotels in a nearby town where the children alleged they were taken and ordered medical examinations but could not prove that abuse had taken place and closed the investigation.
Following his police interview, A was placed in a specialist unit for victims and perpetrators of sexual abuse, initially with his parents’ consent and then under an interim care order after the local authority issued care proceedings. These were heard in parallel with proceedings for the F children, who were joined as interveners in A’s case because of the allegations.
‘Instigator of abuse’
The judge for the care proceedings, Her Honour Judge Watson, had found that A “had been the instigator of abuse under the direction of his father, who has provided the money to buy alcohol and has, by his presence and/or control of A forced all the children, including his own son, to perform acts of gross indecency with each other”.
A’s father appealed the findings on a number of grounds including errors in analysing the evidence of all of the children, failure to take the police investigation into account and “effective reversal of the burden of proof”.
Lord Justice McFarlane granted the father’s appeal, overturning the findings of fact from the care proceedings, because of “significant departures” from good practice. These included:
- ‘Leading questions’ asked in the ABE interviews: “Elements of the narrative, not previously referred to by the child [were] introduced,” the judge noted. For example, after one of the children was unresponsive, the interviewer said: “[Foster carer] told us a little bit about what you said last week and it was to do with [Mr E] and [A], do you remember that now?” The judge was satisfied that this was an attempt to get the children to repeat on camera what they had previously said, which a High Court judge in a previous case has ruled is “emphatically not what ABE interviews are about.”
- Recording of the ABE process: No written records were made, contrary to “ordinary practice” where a pro forma would be made. Phase 1 of the ABE interview – where neutral topics are used to build a rapport and the difference between truth and lies is discussed with children – was also not videotaped for any of the children so there was no information about what was said this stage. There were no records of what happened during an hour where the youngest child left the interview room and immediately made allegations of sexual abuse on her return.
- ‘Fast track’ questioning of the F children at home after the interviews: An officer’s visit to go through each point the children had made earlier to help build a chronology was “unorthodox” and “without any apparent regard for due process”. The summary notes of the visit were “wholly inadequate” so the evidence could not be relied on.
- Involvement of A’s key worker: A was visited at the unit by his Cafcass guardian and solicitor to go through the evidence against him for the fact-finding hearing. There was no indication that legal professional privilege was discussed with A who had a “significant” learning disability and was not able to instruct a solicitor directly. His key worker was left alone with him when he was asked to tick one of two pieces of paper marked ‘Yes’ and ‘No’ to say whether he had been involved in sexually inappropriate behaviour. A’s key worker said he made the tick at A’s direction because the boy was so tense he could not hold the pen.Lord Justice McFarlane said “there must be very grave doubt as to the evidential value of this whole procedure” as it was not clear what A might understand by “sexually inappropriate behaviour” or how it might “involve” him.
Lord Justice McFarlane also upheld the father’s claim that the judge hearing the care proceedings had not addressed the inconsistencies within and between the three F children’s evidence. Her Honour Judge Watson had stated only that it demonstrated “that the children have not colluded or rehearsed their evidence”. Further analysis and evaluation was needed, he said.
In addition, it emerged as evidence was gathered that A had told his parents in 2011 he had been abused by two ‘uncles’. There was a “real risk” that evidence recorded about sexual behaviour that made him feel “not good” related entirely to that abuse, said Lord Justice McFarlane.
Another key issue was the calling of child witnesses to give live evidence in family court proceedings. Counsel for Mr E had argued that the F children should appear so that questions about the inconsistencies could be asked. Judge Watson had denied this application on the grounds that this sort of questioning could not be put to child witnesses and cross-examination was unnecessary given the ABE evidence.
Supreme Court guidance
Lord Justice McFarlane highlighted guidance given in a 2011 Supreme Court decision, Re W, which argued that the Family Court’s presumption against putting questions to a child was not reconcilable with the European Court of Human Rights’ approach to striking a balance between competing rights and risks of harm. In these cases, the balance to be struck was between the welfare of a child and their right to private and family life and the rights of an alleged perpetrator to a fair hearing.
Lord Justice McFarlane said that the Re W judgement “would seem to have gone unheeded” in the five years since it was given and Judge Watson had not referred to it at all. He was clear that he did not intend to set “any new test or template” for such decisions but that Re W and the Family Justice Council guidelines should be referred to as a matter of routine. This would usually involve a judge evaluating evidence such as ABEs in advance to see if live evidence is necessary.
After allowing the appeal, Lord Justice McFarlane said it would be for the local authority, the other parties and the Family Court to consider whether there should be a retrial.