ON APPEAL FROM THE FAMILY COURT AT NORTHAMPTON
HH Judge Handley
IN THE MATTER OF THE CHILDREN ACT 1989
AND IN THE MATTER OF Y AND E (CHILDREN) (SEXUAL ABUSE ALLEGATIONS)
Strand, London, WC2A 2LL
B e f o r e :
(Vice-President of the Court of Appeal (Civil Division))
LORD JUSTICE BAKER
SIR PATRICK ELIAS
| IN THE MATTER OF THE CHILDREN ACT 1989 AND IN THE MATTER OF Y AND E (CHILDREN) (SEXUAL ABUSE ALLEGATIONS) A FATHER
|- and -
|A LOCAL AUTHORITY (1)
Y'S MOTHER (2)
E'S MOTHER (3)
Y and E (by their children's guardian) (4) and (5)
Y'S MATERNAL GRANDMOTHER (6)
Alicia Collinson and Kate Ferguson (instructed by Local authority solicitor) for the First Respondent
Damian Garrido QC and Elizabeth Walker (instructed by Sills Betteridge) for the Second Respondent
Rachel Watkins (instructed by HCB Solicitors) for the Sixth Respondent
The Second, Fourth and Fifth Respondents were not represented at the hearing of the appeal
Hearing dates : 29 November 2018
Crown Copyright ©
LORD JUSTICE BAKER :
"I would go further and announce loud and clear that the standard of proof in finding the facts necessary to establish the threshold under section 31(2) or the welfare considerations in section 1 of the 1989 Act is the simple balance of probabilities, neither more nor less. Neither the seriousness of the allegation nor the seriousness of the consequences should make any difference to the standard of proof to be applied in determining the facts. The inherent probabilities are simply something to be taken into account, where relevant, in deciding where the truth lies."
(1) Between 2013 and 2015, the father had anally raped Y on multiple occasions.
(2) In 2011/12, father masturbated and ejaculated in front of Y.
(3) On at least one occasion, the father has vaginally raped Y.
(4) On multiple occasions from 2010, the father has inserted his thumb or finger into Y's vagina and/or anus. Specifically, in late 2015 and around 20 May 2016 the father inserted his finger into Y's vagina.
(5) In 2011/12, the father made Y stroke his penis.
(6) On 14 July 2016, Y was dragged by the neck by the father who then assaulted the grandmother in front of Y by stepping on her foot.
(7) The mother was emotionally abused and controlled by the father during their relationship. She was bullied by him, called "fat", put down, told what to wear and not allowed to go out with friends. He made her check emails in front of him and threatened her with violence.
(8) The mother was physically abused by the father during and after their relationship. On more than one occasion, he threw her across the room. On one occasion, he grabbed her by the neck leaving marks. On 3 June 2010, she was pushed by the father in front of Y.
(9) The mother failed to protect Y by not properly informing social services or the police of the allegation made on 20 May 2016 and by allowing contact between the father and Y to continue.
(10) The maternal grandmother failed to protect Y by not reporting the allegation until 14 July 2016, despite having been aware of it since the end of May/early June 2016.
The judgment at first instance
"the father made reluctant concessions that the nature and content of Y's evidence indicated personal experience of abusive behaviour and when pressed robustly on the issue, allegations [sic] that Y must have been exposed to actual abuse, effectively to inform and add detail to her allegations".
"Having considered the evidence in its totality, including Y's presentation in her interviews and in the light of my observations in respect of other witnesses and recognising that if the father's denials are accurate Y would have been lying throughout her three interviews, I find on the balance of probability that Y was providing an honest and accurate account of her experience within her ABE interviews and generally."
"She had forgotten that mother had copied her mobile phone data, including the photographs, to her computer and that it had innocently popped up some years ago and that Y saw the image. I accept her evidence that she had no idea that it was there, that the viewing was unintentional, brief and concluded with a simple dismissive comment and that the incident had been forgotten by her."
The judge proceeded to accept the grandmother's account of her reasons for the delay in reporting the May 2016 allegations, and her expressions of regret at this decision. He then said that he rejected the allegation that the grandmother had instigated or led a conspiracy to coach Y, adding that in his view such a conspiracy would have had to include actual abuse to instil in Y the knowledge and experience necessary for the disclosures she subsequently made. He concluded that the grandmother was an honest and accurate witness.
"As I consider father's evidence in its totality and in the context of the total evidence, I find that he was an unimpressive witness who gave dishonest evidence in respect of the allegations in issue ."
"(a) whether, on the balance of probability, the maternal family would engage in and support contact for a number of years then submit Y to a regime of coaching to actual sexual abuse at a time in her life when she would know the difference between truth and lies and be equally capable of making allegations against an abuser in the wider maternal family, and
(b) why would the maternal family coach Y to make historic allegations at a time when contact was taking place without any apparent issues, and
(c) why would the maternal family coach Y to the extent alleged and expose Y to actual sexual abuse in view of the detail within her evidence to destroy the father when far fewer 'coached allegations' would achieve the same end result and without the need to expose Y to sexual abuse in view of my finding that Y is a child who has been sexually abused, and
(d) why, if the maternal family were so determined to ruin father's life, were they so reluctant to report the May 2016 allegations to the police ."
"Having reflected on all of the available evidence I find that I am driven to the finding that Y is a truthful witness and with that finding in mind I believe her evidence in preference to her father's denials."
The parties' cases on appeal in outline
(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 first made her allegations;
(6) he failed to address what Mr Feehan and Ms Korol described as serious problems with the ABE process.
In addition, they contend that the judge made a number of material errors in his assessment of the evidence which led him wrongly or improperly to add weight to the case against the father.
The ABE interviews
(1) A well-conducted interview will only occur if appropriate planning has taken place. The importance of planning cannot be overstated (paragraph 2.1).
(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) During the course of an investigation it may be necessary to ask a witness to explain a significant evidential inconsistency between what they have said during the interview and other material gathered during the course of the investigation. Explanations for evidential inconsistencies should only be sought where the inconsistency is a significant one and after the witness's account has been fully explored, either at the end of the interview or in a further interview, as appropriate. Questions intended to elicit an explanation for evidential inconsistencies should be carefully planned, phrased tactfully and presented in a non-confrontational manner (paragraphs 2.161-3).
(5) A full written record should be kept of the decisions made during the planning process and of the information and rationale underpinning (paragraph 2.222).
(6) 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).
(7) 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 maybe, 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).
(8) 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).
Y's three interviews
The first interview on 2 August 2016
"Okay so before we came in here I said there were a few ground rules, didn't I?
In reply, Y nodded, and the officer then repeated some of what they had discussed. In doing so, she said that they "also went through something about telling truth and lies" and asked Y if she could remember what the story was about. Y then recounted a story about a child telling a lie about breaking a window.
"So I've asked you to come here today to meet me and I wanted you to tell me some stuff, and I understand you wanted to talk to me about some stuff. Do you think you feel ready to talk?"
Y replied yes and proceeded to describe how her father had "put his finger up my privates". In my judgement, this part of the interview constituted free narrative in a form recommended in the ABE guidance. Y gave a description of what she said had occurred, with some experiential detail for example, that she had been lying on her bed, that she was waiting to get into her bath, that she had said "ouch" and added:
"and then when I went to the toilet, because I always go to the toilet before bath, just really hurted when I did it and it was front privates."
Y said she had been lying facing the wall when her father had come in. A little later, she added:
"And it scratches me inside because he has really sharp nails and he hardly ever cuts them."
The following exchange then took place:
"Q: And you said your front bottom.
A: Yeah [in fact, Y had said 'front privates']
Q: Yeah. So where on your front bottom did he put his finger
A: Like the, like, where we pee and then, um, it was also like in the middle-ish, like but it was like it was in the middle but then it was touching my front bum as well so it was like it was like that up my middle bit, and then his knuckle was in my front bit where we pee and it was like nudging it up. So it was kind of hurting as well."
"Where I was lying on the bed and he was reading me a story And he touched me again in my front, but this time it was with the actual nail in the front like, (gesturing) like it was in the middle but this time it was on the front, just like the front bit of the front, and he just scratched a little bit of it and then took it away and that was it."
"it didn't hurt as bad as the last one because it actually went (demonstrates) really scratch because he had sharp nails."
When asked what she had been wearing, she replied she was in her pyjamas but had pulled her pyjama bottoms down because it had been hot in bed.
The second interview on 24 August 2016
"Q: Okay, and we've already previously talked about truth and lies and you understand the difference between telling truth and lies.
Again, there was no "rapport phase". Instead, the officer immediately asked "what have you come here to talk to me about?" Y replied: "I've got more information" and then gave the following passage of free narrative:
"Um, well, once my dad, um, well, I am frightened of going in my bedroom on my own and I think once my dad, he sort of put like, I think it was a knife, but like I think it was metal so like a knife and like like soft and - not soft, but hard, softish, flat and smooth like a knife, um, um, and he dragged me down the field and strangled me before. Um, and he touched me in my front and back bottom before, and he's oh E [the father's partner's child], um E, I think E is getting touched as well because once it was him and E and you could hear him - her shouting 'No' and 'Stop it' and and I think this has been going on since I was three, but E comes up to me, points to her front and back bottom and says 'Touch', and it's weird, I get confused about it."
"it's got layers skin And then it felt soft but then a little bit bumpy. The top was soft at the end . The top is bumpy and it's all soft at the end It's weird looking at smooth wobbly it was going up and down."
The officer asked her about the knife. Y described it as big and having a curvy shape which she drew on a notepad. She said that she had been asleep and when it scratched her she woke up and "saw a tiny bit of metal". She said that she had been lying on her bed facing the wall and that she had been "nude". The interview continued:
"Q: And what did your dad do with the metal?
A: He put it inside me and then - and when it was inside it was like that (demonstrates) and scratched me, and then he closed my door, a little, I knew I was awake because it scratched inside, and I pretended to be asleep and turned over."
She said that he had put it in her on two occasions, once in her front and once in her back, explaining that she meant in her "front and back bum". She said that it had felt "weird" and that "it's sore to sit down sometimes". When asked where it was sore, she replied "like in the middle".
The third interview on 20 September 2016
"that's his bum and that the willy coming out and then there's things coming out but there's only one drop and it's going down".
She stated that it was her dad and gave his name.
"Q: So what else have you got to tell me?
A: Er er er er (points).
Q: You can't remember?
A: (shakes head)
Q: I think you can. I think you can. Why don't you want to say?
A: Er I'm embarrassed.
Q: You're embarrassed.
A: Really don't want to say.
Q: No? But we've talked about a lot already, haven't we?
Q: We've talked about loads in this room so far in the last couple of weeks and you've told me loads, so you can you can feel at ease telling me whatever you need to tell me.
A: I've said so much I'm not sure there is anything else.
Q: I did not hear any of that. Say it all again.
A: I've been here so many times and I think I've said everything.
Q: I know you've been here so many times, you're probably sick of seeing me, aren't you?
Q: So I know you've told me a lot but I understand that there is other stuff you haven't told me and it's really important for me to know that".
A: Mm. I'm embarrassed.
Q: I know you're embarrassed.
A: Talking about his willy is (inaudible).
Q: Talking about his willy is gross. So is that what it's about?"
Y then said:
"once I woke up to a mad pain and I saw him in the corner of my eye like this (demonstrates), it's embarrassing, like this (demonstrates), standing over my bed like this (demonstrates) putting his willy in my back bum."
In answer to further questions she described her father had "pulled his pants down" and later added "then I think he saw me a little bit and he ran away". The officer told her "you're doing really well, you're doing very well". A little later in the interview, the following exchange took place:
"Q: What was he doing with his willy?
A: He was getting it right up like this (demonstrates).
Q: He was sticking it out?
A: Yeah, I can't do it very well, but he was like like that (demonstrates). Like (laughs). It's hard to do, but a little bit, you know, like that, sticking out (demonstrates).
Q: So what was hurting?
A: When he put it in, like - it's like - it's like only a tiny bit up.
Q: What was only a tiny bit up?
A: His willy.
Q: And what was it up?
A: My back bum."
"it was wet, obvious. It looked a bit like raindrops but it was it was like the shape of raindrops it was all blobby."
Asked to describe its colour she replied "whiteish". Asked where did it go, she replied "on the floor". She said that it had happened on one occasion when she was four years old.
"Q: Right, there's one more thing I wanted to ask you, Y. Do you remember when you told your mum and your Nan, a long time ago, and then the police started investigating? Do you remember when you first told them?
Q: Around that time did your mum or Nan or anybody show you any pictures on a computer?
A: My Nan.
Q: Can you tell me more about that?
A: Well, we were just looking at cousins.
A: And this picture came up of my bum and Nanny just I said 'what's that?' and Nanny said 'your bum' and turned it off.
Q: Oh, okay. So she you were looking at pictures of your cousins and it just came up?
A: Yeah. Just randomly.
Q: What did it look like?
A: It was like my bum cheeks and it was it was like my back bum.
Q: Your back bum. Did she tell you anything about it?
Q: Why they had a picture like that on the computer?
A: (shakes head)."
The judge's treatment of the ABE interviews
(1) the fact that Y had made allegations to a number of people, in addition to her mother and grandmother, in 2010 and 2016;
(2) her fear of her father when he shouted, her nightmares and difficulty in sleeping;
(3) her allegations to her mother that he had threatened her not to tell anyone, and warned her that her mother and grandmother would be hurt if she told anyone;
(4) her description of feeling dirty and needing to bathe, and an incident in October 2016 when she had been seen scrubbing out her private parts;
(5) the fact that, in the judge's words, "Y is a child who would have known that she was telling lies to a number of people including the police and school friends over a long period of time and in my judgment would have known that such lies would be very serious for her father".
Submissions on the ABE interviews
The appellant's submissions on the interviews
"I've asked you to come here today to meet me and I wanted you to tell me some stuff, and I understand you wanted to talk to me about some stuff. Do you think you feel ready to talk?"
It is submitted that this indicates that the officer, contrary to the underlying principles of the guidance and the dicta in TW v A City Council, did not have an open mind throughout the process and might have been understood by the child to have been encouraging her to repeat what she had said before. None of these procedural breaches or criticisms was identified to the judge or considered by him.
The respondents' submissions on the ABE interviews
Other alleged errors in the judge's analysis
Further discussion and conclusion
"I find that father's criticisms [of the ABE interviews] bear no resemblance to the concerns identified in AS v TH and the resulting guidance."
Although it might have been better if the judge had referred to the decision earlier in his judgment at the point when he was summarising the legal principles, I am satisfied, looking at the totality of the judgment, that he was referred to those authorities and had them in mind when considering his judgment.
- that she had been lying on her bed and waited to get into her bath when her father had touched her on the first occasion
- that he had scratched her inside "because he has really sharp nails"
- that when she went to the toilet, it "just really hurted"
- that "his knuckle was in my front bit where we pee"
- that on the second occasion she had been lying on the bed and her father was reading her story
- that her pyjama bottoms had been pulled down because it was hot
- her description of her father's penis in the second interview
- a clear account of masturbating her father
- a description of how her father had put his "thumb in the back, the finger it was in the front"
- the reference to the knife
- her description of blood.
"to consider the totality of the evidence when assessing the witnesses and when making findings and reaching my decisions regardless of whether the evidence is referred to in this judgment".
At paragraph 32, he again refers to
"having considered the evidence in its totality".
At paragraph 55, he stated:
"as I have reflected on the central issue of whether Y's allegations are true I have considered all of the evidence available to me both written and oral in the context of the guiding legal principles regardless of whether it is specifically referred to in this judgment".
At paragraph 58, when considering his conclusions, he reiterated that he had reflected
"on the evidence as a whole".
At paragraph 59, when setting out his final conclusion, he said that he had
"reflected on all of the available evidence".
These repeated references to the totality of the evidence convince me not only that the judge was aware of his obligation to consider each piece of evidence in the context of all the other evidence but also that he did consider all the relevant evidence, including those parts of it that were not expressly referred to in the judgment.
SIR PATRICK ELIAS
LORD JUSTICE UNDERHILL