This judgment is being distributed on the strict understanding that in any report no person other than the advocates (and other persons identified by name in the judgment itself) may be identified by name or location and that in particular the anonymity of the children and the adult members of their family must be strictly preserved.
B e f o r e :
|Re A (A Child)|
Miss Moira Walsh for the Respondent Mother
Mr Timothy Lewis (solicitor) for the Child
Crown Copyright ©
Judge Clifford Bellamy:
'relates to an allegation of sexual assault on a four year old child by her father. An ABE interview has been completed and the suspect has been arrested and interviewed, denying the offence. There are no forensic opportunities and no independant (sic) witnesses to the allegation itself. For a charging decision please.'
'The suspects (sic) computers have been examined by means of a cursory search and there is nothing of an illegal nature present on them. There is legal pornographic material.'
'fully accepts that she has suffered from problematic alcohol misuse. Her GP records also confirm that she has actively engaged in treatment from her GP and specialist alcohol services…She attends the Community Alcohol Service in Coventry once per fortnight. She also attends a specialist counselling service…[the mother] has a substantial and appropriate treatment program that covers a range of supportive and specialised therapies to help maintain her abstinence from alcohol'
'there is therefore a possibility that should she experience acute triggers or possibly without any particular trigger she may experience further episodes of relapse of alcohol dependence syndrome. In my opinion such relapses are likely to be amenable to treatment in that she has demonstrated an ability to achieve abstinence from alcohol for long periods of time.'
'there is no evidence to suggest that [the mother] suffers from Obsessive Compulsive Disorder…She does not describe recurrent intrusive thoughts that are indicative of obsessions. There is no evidence of any repeated ritualistic compulsions consistent with this disorder…'
'I got into this because uhm unfortunately I got addicted to alcohol and uhm any kind of addiction whether its drugs or alcohol or whatever it is uhm you know you need to fund that addiction and err unfortunately for myself uhm I also got into a bit of a shopping addiction as well…'
The findings sought by the father
(1) That until at least April 2010 the mother was working as a prostitute and had been for some 9 years to fund her alcohol and shopping addictions.
(2) That the mother's level of judgment had deteriorated to a level where working as a prostitute in her own home had become normal and acceptable to her even taking into account the risks to the mother and A.
(3) The mother's level of drinking was such that prior to the father taking over care of A, A's safety and welfare were at risk.
Discussion and conclusions
'You will find – you will find anal sex, you will find various – various other things, but you won't find anything with children…'
This was followed up a little later in the interview:
Q: You made – you made a point of anal sex, is that something that you're quite interested in?
A: You know, yes, there are – there are sexual fantasies and then there's reality. Now, and – and the two are very different things.
Q: Is the sexual fantasy – a fantasy of yours, anal sex?
A: You'll find…male/female, female and female, you know, normal internet pornography.
A: You know, perhaps group sex.
Q: What would you –
A: Perhaps some bondage
Q: Okay. Some bondage, okay. So what kind of search terms would you use for your pornography that you would be interested in?
A: Oh, 'sex, throated', just – just – and what – you know, it's more a case of finding something and then clicking on a link to something that takes you to a link to something else…
Q: Okay. When you – when you say 'throated', what's that mean?
A: A woman performing oral sex on a man.
Q: Okay. Any other – any other search terms that you would nor – use on a normal basis?
A: 'Gagging' maybe
Q: Okay. How often do you look at pornography?
A: Quite a lot. Probably – probably every day
Q: Okay. You – you are talking about searching on the internet for porn. How do you store any porn that you obtain from the internet?
A: I don't. I tend to watch video streaming
Q: Okay. Have you got any stored pornographic images, videos, anything that would come under the umbrella of pornography, stored within any of the computers?
A: There may be – there may be some stuff there, but it may be a case of it's been downloaded, but I don't – I don't think so
A: That you may – you may find some more extreme pornography on my laptop, but again it's just – it's just something that I look at
Q: What do you mean by 'extreme'?
A: Well, in the gagging, there may be a couple of women that – that while they're gagging, they've been sick, that sort of stuff, but that's it
The findings sought by the mother
First and fifth findings
Second, sixth and ninth findings
'15. Shortly after the Christmas period in 2010, I noticed a disturbing change in A's behaviour. This shift in A's behaviour coincided with the breakdown in the Applicant's relationship with CA and the subsequent lack of female influence whilst in the Applicant's care. A started requesting that I rubbed her bottom "like Daddy does". On the first few occasions A requested this, I did not have any initial concerns and merely cast aside these comments excusing them for childish remarks. It was not until January that I considered that they were not just childish remarks. A's behaviour then became more alarming when on one occasion whilst playing a game with A, she pulled her tights down and lay on the bed with her legs bent right over her head attempting to remove her pants stating "Daddy does it". I was very shocked and concerned over this behaviour and subsequently called [my solicitors]…
18. …I was very alarmed to discover A on more than one occasion proceeding to pull her trousers down and bend over…A has also on another occasion laid on all fours on top of her bed and requested that I "rub her bum and fairy". I was extremely shocked and disgusted by this and enquired of A who rubs her bum and fairy to which she responded "No-one, No-one just Daddy". I find it of great concern that A freely volunteers this information and appears to assume that it is normal for her "bum and fairy" to be rubbed. Of grave concern is the fact that A repeats the phrase "I do it when Daddy tickles me. Daddy shows me what to do.'
'11. In or around April 2011, I recall on one occasion, A came into my bedroom at about 6.30am. She crawled into my bed for a cuddle. After just a few seconds she pulled down her pyjama bottoms and said to me, "rub my bum and fairy". I said, "what A?". She said, "rub my bum" I said "why do you want me to rub your bum?" She said "because I like it". At this point I discreetly reached for my mobile phone, switched it on and placed it on the pillow on record.'
The transcript of this recording is as follows:
M: Do you want me to tickle you
B: I just fell over
M: Just want a cuddle
B: No rub my bum
M: What do you want me to rub your bum for
B: It feels nice
M: Have you pulled your trousers down
Whispering which is unclear
B: My bum, I want you to rub my bum
M: But I haven't rubbed your bum before who else rubs bum
M: Who else
B: No one
B: Im going back to my own bed
'5. During my police interview I informed Police of A's disclosures and perturbing behaviour to include A lying on the floor with her legs over her head with her pants pulled down. I also observed the same behaviour from A whilst lying on the sofa and stating "this is what I do when Daddy tickles me"…
6. In March 2011, I recall having returned from collecting A from the Applicant's house…and we were preparing breakfast in the kitchen. Whilst A was playing with her dolls in the kitchen, she took me by surprise and stated "Daddy was looking at my fairy". I continued what I was doing and said to her, "Was Daddy cleaning your bottom?" A very determined "no" came back to me. I then said to her "Did you do a wee and Daddy was drying your bottom?" Again the same determined "no" came back to me. Finally I asked A "Did you have a sore bottom sweetheart and Daddy was making it well?" To my horror, A again firmly replied "no" then further added "he was just looking at my fairy".'
'18. … On one occasion I recall lying with A on a couch. Whilst we were playing a tickling game A put her hands down to remove her pants, flipped her legs over her head and put a finger from her right hand inside her anus. I was totally appalled by this behaviour and reported this to CAFCASS.'
'9. In or around late February or early March 2011, A and I were at her maternal grandmother's house. We had just collected A from the Applicant's house…My mother was cooking breakfast in the kitchen and I was in the living room with a very excited A. A jumped on my lap for a cuddle. I was sitting on the sofa at the time. I started to tickle A and she wriggled over on to her back, lying across my legs. Her knees were bent up to her chest. I was so concentrated on tickling under her arms that I had not noticed that she was slowly (she always pulls her bottom half down slowly she finds this funny), pulling her skirt and tights down to her knees. At that moment I noticed, which would have been mere seconds, she was giggling away and had her hand in an unusual position very near her bottom area. I said to her, "A what are you doing?" She said "daddy shows me". A had placed the thumb of her right hand just inside her anus. I was totally shocked and lost for words. She removed her thumb. She had stopped laughing then. I think this was because I had stopped tickling her and was now looking shocked.'
'7. A continued to show me her bottom, asking me to "rub her bum"; give her a 'poke hug'; asking if she could have a baby in her tummy; telling me she wanted a baby in her tummy; and asking me to put my hand down her trousers, pants, or tights; to rub her…'
'12. …A has displayed other behaviour such as open mouth kissing and poking at my bottom. Some of this behaviour is going to be childhood curiosity. However, there was enough behaviour coming from A for me to be concerned that it was not age appropriate.'
MGM expressed concern about the fact that on several occasions A had 'open-mouth kissed me'. This had happened between January and April 2011. She says that it doesn't happen now.
'2. On 27th May 2011, A grabbed my hand and pushed it between her legs. I recall this incident having taken place whilst A and I were engaged in a 'fun tickle' session in the living room. A was sitting on the sofa with her legs apart when she grabbed my hand and placed it in her groin area. I removed my hand instantly. She was wearing her pink leggings at the time. A was asking me to tickle her 'fairy'. I did not respond to her requests and casually walked out of the room so that A would not suspect that I had any concerns with what she was saying.'
'3. On 28th May 2011, A attempted to force her big toe on her right foot inside her 'fairy'. I was in the kitchen preparing a night time drink for A whilst she was sitting on the sofa in the living room. Upon entering the living room, I saw A in a serious facial mood attempting to push her big toe into her 'fairy'. She was doing this with some concentration to see if her big toe would fit into her 'fairy'. At the time of this incident, A was wearing her night dress with no pants on.'
The father's response to the findings sought
'…I am struggling with a complete mantal (sic) and physical breakdown. Have been in the caludon centre all last week very ill…'
In a subsequent message sent that same day, the mother wrote,
'…Uncontainable anger at the mess you have caused me, drank myself into that cauladon (sic) centre (Coventry Mental Health Unit) last week…'
Achieving Best Evidence interview
2.1 The purpose of an investigative interview is to ascertain the witness's account of the alleged event(s) and any other information that would assist the investigation. A well-conducted interview will only occur if appropriate planning has taken place. The importance of planning cannot be overstated. The success of an interview and, thus, an investigation could hinge on it.
This point is repeated elsewhere in the guidance.
2.222 A full written record should be kept of the decisions made during the planning process and of the information and rationale underpinning them. This record should be referred to in the body of the Criminal Justice Act 1967 statement subsequently made by the interviewer in relation to the planning, preparation and conduct of the interview...
2.53 Interviewers may decide that the needs of the child and the needs of criminal justice are best served by an assessment of the child prior to the interview taking place, particularly if the child has not had previous or current involvement with the local children's services authority or other public services…
2.54 Interviewers must be careful to balance the need to ensure that the child is ready and informed about the interview process against the possibility of any suggestion of coaching or...
2.55 A full written record of any such assessment(s) must be kept and must be referred to in the body of the Section 9 of the Criminal Justice Act 1967 statement that reports on the planning and conduct of the interview...
2.56 Interviewers must have clear objectives for assessment(s) prior to interview and should apply this guidance on talking with children during such assessment(s) (e.g. they should avoid encouraging a child to talk about the alleged offence and should not interrupt them if they freely recall significant events). The interviewer must make a full written record of any discussion, making a note of the timing and personnel present, as well as what was said and in what order. The interviewer should begin by explaining the objectives of the interview to the child…
2.20 At a minimum, such as instances in which the child has experienced no previous contact with the public services, the investigating team in child protection cases should include representatives from both the police and the local children's services authority.
2.21 Whenever suspicion has arisen that a child has suffered, or is likely to suffer, significant harm, there will be a strategy discussion or meeting involving the local children's services authority, the police and other professionals as appropriate, e.g. paediatrician, child and adolescent mental health services (Working Together to Safeguard Children (Department for Children, Schools and Families, March 2010)…
3.1 The basic goal of an interview with a witness is to obtain an accurate and reliable account in a way which is fair, is in the witness's interests and is acceptable to the court…
3.3 For all witnesses, interviews should normally consist of the following four main phases:
- Establishing rapport;
- Initiating and supporting a free narrative account;
- Questioning; and
3.18 Toward the end of the rapport phase of an interview with a child witness, when ground rules have been explained to the child, the interviewer should advise the witness to give a truthful and accurate account of any incident they describe. There is no legal requirement to do this, but since the video may be used as evidence, it is helpful to the court to know that the child was made aware of the importance of telling the truth. This should be done in the rapport phase and not later in the interview because this might run the risk of the child concluding that the interviewer had not believed what they had said up to that point.
3.24 In this phase of the interview the interviewer should initiate an uninterrupted free narrative account of the incident/event(s) from the witness by means of an open-ended invitation…
3.26 It is essential not to interrupt the witness during their narration to ask questions; these should be kept for later.
3.27 In the free narrative phase, the interviewer should encourage witnesses to provide an account in their own words by the use of non-specific prompts such as 'did anything else happen?', 'is there more you can tell me?' and 'can you put it another way to help me understand better?' Verbs like 'tell' and 'explain' are likely to be useful. The prompts used at this stage should not include information known to the interviewer concerning relevant events that have not yet been communicated by the witness.
3.69 It is important that the interviewer asks only one question at a time, and allows the witness enough time to complete their answer before asking a further question. Patience is always required when asking questions, particularly with developmentally younger children... Interviewers should not be tempted to fill pauses by asking additional questions or making irrelevant comments… It is important also that the interviewer does not interrupt the witness when they are still speaking. Interrupting the witness may suggest to them that only short answers are required…
3.72 Many children and vulnerable witnesses will have difficulty with questions unless they are simple, contain only one point per question, do not contain abstract words or double negatives, and lack suggestion and jargon…
3.74 The information requested in questions should always take account of a child's stage of development. Many concepts that are taken for granted in adult conversation are only acquired gradually as children develop. Therefore, questions that rely upon the grasp of such concepts may produce misleading and unreliable responses from children, which can damage the overall credibility of their statements in the interview…
3.79 The questioning of children and vulnerable adult witnesses requires extensive skill and understanding on the part of interviewers. Incompetent interviewers can cause children and vulnerable adult witnesses to provide unreliable accounts. However, interviewers who are able to put into practice the guidance on questioning contained in this document will provide witnesses with much better opportunities to present their own accounts of what really happened.
3.80 If appropriate, interviewers should in this final main phase consider briefly summarising what the witness has said, using the words and phrases used by the witness as far as possible. This allows the witness to check the interviewer's recall for accuracy. The interviewer must explicitly tell the witness to correct them if they have missed anything out or have got something wrong.
3.81 Summarising the interview can lead to further retrieval. The witness should be told that they can add new information at this point in the interview; otherwise they are unlikely to stop an interviewer in the full flow of recapitulating.
3.82 Interviewers should not attempt to summarise what the witness has said where the witness is fatigued, in an emotional condition or otherwise distracted because they may not be in position to listen properly to the summary. Similar issues may arise where the witness appears to have a short attention span (as may be the case, for example, with young children and some adults with a learning disability).
3.83 If there is a second interviewer/monitor present, the lead interviewer should also check with them whether they have missed anything.
3.84 The interviewer should always try to ensure that the interview ends appropriately…
3.85 In this phase, regardless of the outcome of the interview, every effort should be made to ensure that the witness is not distressed but is in a positive frame of mind. Even if the witness has provided little or no information, they should not be made to feel that they have failed or disappointed the interviewer. However, praise or congratulations for providing information should not be given…
3.87 Finally, the interviewers should report the end time of the interview on the video/audio-recording.
'…as a general rule of thumb, an intermediary may be able to help improve the quality of evidence of any child who is unable to detect and cope with misunderstanding… i.e. if a child seems unlikely to be able to recognise a problematic question or tell the questioner that they have not understood, assessment by an intermediary should be considered…'
2.184 The presence of an interview monitor is desirable because they can help to ensure that the interview is conducted in a professional manner, can assist in identifying any gaps in the witness's account that emerge, and can ensure that the witness's needs are kept paramount. Careful consideration needs to be made with regard to whether the interview monitor is present in the interviewing room itself (in the event of which they might effectively be regarded as being a 'second interviewer'), or in the adjoining room with the monitoring equipment (in which case they might effectively be regarded as being an 'observer')...
2.185 Regardless of who takes the lead, the interviewing team should have a clear and shared remit for the role of the interview monitor…the interview monitor has a vital role in observing the lead interviewer's questioning and the witness's demeanour. The interview monitor should be alert to interviewer errors and apparent confusions in the communication between the lead interviewer and the witness. The interview monitor can reflect back to the planning discussions and communicate with the lead interviewer as necessary...'
'This protocol has been agreed…as a framework for joint agency working in child protection and safeguarding. Staff that are or may be involved in the protection of children need to have a working knowledge of this document. They should refer to the relevant sections as required and are expected to adhere to this protocol in their working practice.
To achieve effective working together and support the delivery of this protocol all agencies will adopt a joint approach at a strategic level and participate in joint training.
Each agency signing up to this joint protocol is expected to generate local procedures that will reinforce this protocol or incorporate it into existing procedures.'
'…When it is necessary to ABE interview children, each interview must be subject of careful planning and include an assessment of whether the interview is likely to be completed over one session or if multiple sessions will be required.
The role and responsibility of each agency should be discussed and agreed in a planning meeting prior to the interview of the child. Roles should be decided in order to ensure the child is provided with the most valuable opportunity to give their evidence…
Where communication with a child for whatever reason may be complex, early consideration must be given to use of an intermediary.'
'The strategy discussion is the primary mechanism through which professionals can discuss and determine the best course of action for a child.
All Section 47 referrals and any Section 17 referral that involves the suspicion of a criminal offence, will be subject of an early strategy discussion/meeting between the police and children's social care. The discussion will involve a minimum of a detective sergeant from the PPU and a manager from children's social care.
In all cases of alleged sexual abuse a paediatrician should be invited to attend the strategy meeting or be part of the strategy discussion and where this is not possible their views established and used to inform the discussion and agreed actions…
Where a joint investigation takes place, the strategy discussion/meeting will also determine the role the social worker will play in the ABE interview…'
Dorset Children's Social Care
'A referral has been received from a CAFCASS officer after she had received information from A's Mother, that A has been displaying sexualised behaviour both verbally and physically, which she appeared to be indicating, is associated with some sexual behaviours/preferences of [the father].
[The mother] was clear that A had not made any specific allegations against [the father] and that during the 7 or 8 months [the mother] and [the father] lived together, she never saw any evidence to suggest [the father] had any sexual interest in Children.
CAFCASS have checked Police Records, there is no information to indicate [the father] is a sexual risk in any way to either children or adults.
Neither Maternal or Paternal Grandparents have seen any concerning verbal or physical behaviour by A. Maternal Grandmother partially supported [the mother's] claims but has not observed any behaviour which raises my concerns.
Neither Health or the nursery have noted A to exhibit any concerning verbal or physical behaviour.
Health, the nursery and the Social Worker have all observed positive interaction between A and [the father].
The Social Worker undertook a direct work keep safe session with A. A did not disclose anything to raise the concerns of the Social Worker. Her body language indicated embarrassment at times but this was wholly appropriate.
[The father] and [the mother] currently appear to have an acrimonious relationship and are in the latter stages of a custody dispute within the family court system. Both parents have made allegations and counter allegations against each other.
A's needs appear to be met appropriately by both parents. There is evidence of emotional upset post change of contact but this is to be expected in the circumstances.
A presents as a polite little girl with advance cognitive development for he age, she was a pleasure to interact with.
[The mother] is the only adult who is alleging to have witnessed any concerning behaviour by A. Although I am not dismissing [the mother's] allegation's (sic) there is no evidence to indicate that A is at risk in any way sexually from [the father] or indeed herself. If further evidence or concerns were to be raised by other agencies/family members there may be a need for further assessment.
At this time I recommend this case close with no further action taken.'
Coventry Children's Social Care
'3.3 …advised that she was concerned for A as [the mother] had been to see her and asked if it was normal childhood behaviour for children to put their thumbs up their anus as this is what A was doing. [The doctor] said that [the mother] also told her that A has said she does this when daddy tickles her fairy. [The doctor] did not see or examine A.'
'4.10 On 12/05/11 I had a conversation with DC Rachel Thompson…Rachel said that the police planned to interview A under guidelines for Achieving Best Evidence…I advised that social care would not visit A until such time that she has been interviewed, she agreed.'
'4.33 …The outcome of this meeting was that [the mother] was taking appropriate action to protect A; she had enrolled A in a nursery which she was attending. [the mother] has stated that she was willing to work with agencies. There was no evidence to suggest that [the mother] had relapsed in her alcohol dependency issues.'
The police investigation
'Call to WX [Coventry children's social care] they cannot conduct a [joint visit] as the case is open to Dorset, unless Dorset request them to…Call from EF [Dorset social worker]. He is happy for us to revisit A – he will contact WX and ask her to attend.'
'…again appeared a very confident child, ahead of her age…A showed me some of her toys and stated she was staying with mummy for a few days and she hadn't seen daddy. She then stated "You know what I said about daddy rubbing my bum, mummy got it wrong, he rubs my bum and tickles my fairy". I explained that A had told me daddy tickles her all over. A stated "its different when he tickles my fairy"…'
'On Wednesday 4th May, I attended 21 Beaconsfield Road, Stoke, Coventry in company with DC 9945 Foster. The purpose of the visit was to speak to a child by the name of A…to assess whether A would be able to take part in a video interview as she had made disclosures to her Mother…in relation to sexual abuse from her father.
Whilst speaking to A in the prescence (sic) of her mother she seemed relaxed and happy to talk about general things regarding her favourite toys, and her family makeup – ie who she lives with. A came across as a very intelligent child for her age who was able to understand and hold a conversation. She was able to correct DC Foster and myself if we got something wrong and her vocabulary exceeded that of most 3 year children I have had dealings with. During the visit, when asked any specific questions in relation to her allegations, As (sic) persona changed and she appeared quiet and withdrawn, she appeared to want to change the direction of the conversation in order to avoid speaking about it, this led us to the conclusion something may have happened to A. As (sic) mother was present and did not prompt A in any way when speaking to us.
During the visit, I left the room in order to speak with As (sic) mother, I left DC Foster speaking with A as she seemed comfortable. I was later informed by DC Foster that A had told her 'Daddy had rubbed her bottom'. A decision was made that A was capable of giving a video interview which she did at Coventry Central Police station, and was consistent throughout.'
'As soon as A became a bit more comfortable with me [the mother] and DC Thompson went downstairs and I remained with A, it was sometime after [the mother] had left the room that A informed me that "Daddy had rubbed her bottom".'
'On 15th May 2011 A was interviewed by means of Achieving Best Evidence Interview, by DC Thompson. I was present in the monitor room taking notes. This was the first occasion that I met A. She gave a clear and consice (sic) account which remained consistant (sic) throughout. She was a confident child and her vocabulary was of a high level for her age. Throughout the investigation A remained consistant (sic) with her account.'
As I noted earlier, it is clear that there was more than sufficient time for the police to have notified Coventry children's social care of the arrangements for the interview.
'I have arranged the ABE interview for Wed 25th May at 1100 hours in line with DC Thompson's shifts and [the mother's] availability.'
The ABE interview
Q: Four, so you're four again aren't you. I remember, keep forgetting. Ok, do you remember what we've come here to speak about today? Ok, can you tell me what that is? What is it we've come here to talk about? What is it you've come to tell me today?
A: About daddy rubbing my bum.
Q: About daddy rubbing your bum.
A: And tickling my fairy
Q: And ticking my fairy. You've got a good memory haven't you. I see. And can you tell me then what daddy does? What does he do?
A: He rubs my bum and tickles my fairy.
Q: Rubs your bum and tickles your fairy, does he? Ok…
Q: …So you were telling me about your dad. Tell me about what does he do then? How does he do it? Don't need to show me, just need you to tell me A, how does he do it?
Q: Can you remember?
A: He just does little strokes
Q: He does little strokes. What does he use to do little strokes?
A: His hand
Q: His hand. Does he? And you say, he does, and does, and does he do that on your fairy and your bun?
A: No he tickles my fairy.
Q: Does he?
A: See, and he rubs my bum
Q: He rubs it, ok. And do you have any clothes on when he does this?
A: Yeah but he puts my hand down my bum
Q: He puts your hand down your bum?
A: No his hand
Q: Oh silly me. He puts his hand down your bum, oh ok. So what are you normally wearing then?
Q: …So lets think about what you were saying about daddy, shall we just carry on talking about daddy so I understand, 'cause otherwise, you know, I'll forget.
Q: I know. So let's say, so what were we saying? You tell me what we were saying, I can't remember. Let's see how good your memory is. What were we saying about daddy
A: He rubs my bum and tickles my fairy
Q: Ok. Where were we saying that that happened sorry?
A: At daddy's
Q: At daddy's…
Q: And whereabouts in the house then does that happen?
A: In his bedroom, 'cause I come in his bedroom in the night
Q: Do you? So you go in his bedroom in the night. Why do you do that then?
A: I don't know
Q: You don't know. But you do, you go in his bedroom in the night
A: I think it's 'cause I, I, I, I sometimes wide awake
Q: …Do you wear knickers A when daddy rubs your bum and tickles your fairy?
Q: You're not, ok. And does daddy say anything when he does it? No. Has daddy ever said anything while he's done it?
Q: …you know when daddy rubs your bum and tickles your fairy
Q: What does that feel like to you?
A: It's tickly
Q: It feels tickly does it? OK, and does it make you happy or sad, or how does make you feel?
Q: Happy, ok
A: And it makes me laugh
Q: It makes you laugh…
Q: …So does daddy tickle you anywhere else? No?
A: Just rubs my bum and tickles my fairy
Q: Just rubs your bum and tickles your fairy, ok, alright. Shall we go and speak to your mum for five minutes and just have a little chat with Mel and see if they're ok?
Q: Hello Rosie. What I'd like to speak to you about now is a little bit like what you're doing. Your mummy keeps telling me that you lie backwards and you life your legs up.
A: I do this
A then proceeded to give a demonstration. It is clear that as part of the demonstration A was about to pull her trousers down until DC Thompson told her that that wasn't necessary. DC Thompson then asks,
Q: …What does daddy do then?
A: He rubs my bum and tickles my fairy
Q: Ok. What about when you lift your legs up and you roll backwards, why do you only do that at daddy's?
A: Because mummy doesn't do it. Mummy don't do it, but daddies do
Q: And what does daddy do? Tell me what daddy does
A: He rubs my bum and tickles my fairy
Q: While you lie backwards when you lift your legs up he does that?
A: No, I just do that and then and then I do that when he's…my fairy
Q: Oh I see. You know when, 'cause we're here to talk about daddy aren't we, and you know when you said about lying down and lifting your legs up, what does daddy do when you're lifting your legs up?
A: He rubs my bum and tickles my fairy
A: You never remember do you Rachel
Q: Where does that happen then, when you're lying down?
A: At daddy's
Q: At daddy's, we've said at daddy's. But when you lie back and you lift your legs up, where in the house are you when that happens?
A: In the bedroom. You never, ever learn
Q: Oh is it at the same time?
Q: …Your mummy's told me something else about you, 'cause me and your mummy have had a little chat, she tells me that you've mentioned something called a poke hug. Do you know what that is? No. Have you ever said that before? No. Oh ok, maybe I've got that wrong then, if you've not said that. I thought you had. You haven't…
'Some aspects of the ABE interview protocol were missing. Specifically, the truth and lies ceremony was not conducted at the beginning of the interview session. This is a crucial omission, and as a result we cannot know whether A understood that she must tell the truth…
An important part of the beginning phase of an ABE interview also is the establishment of rapport between the interviewer and the interviewee. There is no evidence in the transcripts of establishment of rapport. However, on one of the DVDs I did hear the interviewer state to A that they had chatted outside the interview room in the presence of [the mother] prior to the interview. I am unable to determine what the content of this discussion were.
Interviewers who conduct ABE interviews with children should use age-appropriate questions. Part of the rapport phase of an ABE interview is to assess the child's level of cognitive development to ensure that the questions they ask are understandable by that particular child.
It is my opinion that the questions asked of A in the two interviews were at times too complex for a child just 4 years old. For example, there is evidence of multi-part questions…and leading questions…'
'One particular form of suggestive questioning is interviewer bias – blind pursuit of a single hypothesis of what an interviewer thinks happened to the child without considering alternative hypotheses. Such interviewers mould the interview accordingly to fit their apriori beliefs about what happened.
Another factor that can impact negatively on very young children's memories is repeated questioning of the child, that is asking the child to relate the details of an alleged assault on a number of occasions before and after the forensic interview or within the forensic interview.'
'It is my opinion that the interviewer who conducted the two ABE interviews with A was doing so with the explicit purpose of getting A to disclose more information about [her father] rubbing her bottom and tickling her fairy. Indeed, she states this at the beginning of the interview and returns to this frequently throughout both interviews. In so doing, the interviewer repeats her questions and repeats what A has said throughout. A however, sticks to her declaration that Daddy rubs her bottom and tickles her fairy…
When a young child is asked the same question on a number of occasions both within interviews/sessions and between interviews/sessions [sometimes] they will change their responses to fit what they think the adult wants them to say. If a question is repeated the child may think that their first response must have been wrong and they change their response accordingly.
It is my opinion that the interviewer used authority bias in the last statement on p155 of the interview to pressure A to give more information. She said, "Mummy's told me something else about you, 'cause me and your mummy have had a little chat, she tells me you have mentioned something called a poke hug." However, A denied this.'
'Although I cannot determine whether A's behaviours and statements are true or false, and indeed it is not my place to do so, it is important, given the nature of the allegations to give a brief account of what is considered to be normal psychosexual development. The scientific literature agrees that the following behaviours are typically displayed by young children. Namely: exhibitionism and voyeurism with other children and adults is common in 4-6 year olds, undressing, showing bottom, or sexual exploration games in boys and girls by the age of 4 years, and asking about sex by boys and girls by the age of 5 years; genital interest increases in the 2-5 year period and genital play is common; flirtatious and seductive behaviours, impersonating mannerisms of parents, older siblings, TV characters; and masturbation is very common between 3 and 6 years (Friedrich et al, 1991, Pediatrics). I note that A spent some time with an older male child of EC.'
'31. …Day after day, up and down the country, on issues large and small, judges are making up their minds whom to believe. They are guided by many things, including the inherent probabilities, any contemporaneous documentation or records, any circumstantial evidence tending to support one account rather than the other, and their overall impression of the characters and motivations of the witnesses. The task is a difficult one. It must be performed without prejudice and preconceived ideas. But it is the task which we are paid to perform to the best of our ability…
70. …I would…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.'
'2. If a legal rule requires a fact to be proved (a "fact in issue"), a judge or jury must decide whether or not it happened. There is no room for a finding that it might have happened. The law operates a binary system in which the only values are 0 and 1. The fact either happened or it did not. If the tribunal is left in doubt, the doubt is resolved by a rule that one party or the other carries the burden of proof. If the party who bears the burden of proof fails to discharge it, a value of 0 is returned and the fact is treated as not having happened. If he does discharge it, a value of 1 is returned and the fact is treated as having happened.'
'…in determining the facts, a court should have regard to the guidance given in R v Lucas (Ruth)  QB 720 and R v Middleton  TLR 203. As appears therefrom, a conclusion that a person is lying or telling the truth about point A does not mean that he is lying or telling the truth about point B. Also I accept that there can be many reasons why a person might not tell the truth to a court concerned with the future upbringing of a child. Further, I of course recognise that witnesses can believe that their evidence contains a correct account of relevant events, but be mistaken because, for example, they misinterpreted the relevant events at the time or because they have over time convinced themselves of the account they now give.'
43. We think it fair to say, however, that the principal basis upon which the judge reached her decision of fact on whether LR was abused by TW was LR's ABE interview. In paragraph 77 of the second version of the judgment she says she has weighed all the evidence very carefully and noted the deficiencies in the interview, "But", she adds:
"I remain impressed by what (LR) said and the way she presented. She was not a "yes" girl agreeing to everything that was put to her and she clearly followed and thought about the questions asked of her."
49. …We deal first with the ABE interview. We have cited substantial extracts from the Guidance because, in our view, the ABE interview has no evidential value…
50. In our view the inadequacies of the ABE interview are manifest. Even allowing for a broad margin of latitude to anyone conducting such an interview, the departures from the Guidance are self-evident and glaring. There is, on the face of the interview (1) an inadequate establishment of rapport; (2) absolutely no free narrative recall by the child; (3) an abundance of leading questions, and (4) no closure. Everything is led by the officer, and nothing is introduced into the interview by the child.
51. We are prepared to leave the first item in the preceding paragraph on one side, as there may have been more rapport before the transcript begins. There may equally have been some planning; although – given the dates and the rapid sequence of events - we think it unlikely. However most importantly, and as is apparent from the extracts we have cited, every proposition either resulted from a suggestion made by the officer…or from a leading question...
52. As we have already pointed out, the Guidance makes it clear 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. We regret to say that we were left with the clear impression from the interview that the officer was using it purely for what she perceived to be an evidence-gathering exercise and, in particular, to make LR repeat on camera what she had said to her mother. That, emphatically is not what ABE interviews are about and we have come to the view that we can place no evidential weight on it.
53. Against this background, the judge's assessment that LR was a forthright child capable of standing up to and overcoming incompetent interviewing does not, in our judgment, stand up to analysis. Of course it is open to a circuit judge to reach a different conclusion on the balance of probabilities from a jury applying the criminal standard of proof. But if this is to happen, it seems to us that it is not sufficient for a judge to rely primarily on the fact that the child is able, when being interviewed in a thoroughly unsatisfactory manner and contrary to the Guidance, to make a number of inculpatory statements. A clear analysis of all the evidence is required, and the child's interview must be assessed in that context. The judge needs to explain how and why the criminal trial came to the opposite conclusion, and to look carefully at the evidence available in each set of proceedings.
17. Then, secondly, Mr Geekie [counsel for the father] concentrates on the question of the ABE interview. It is accepted to be deficient; it is accepted that for that reason alone it is not necessarily to be treated as valueless, but the deficiencies should excite specific caution in anyone seeking to use those ABE interviews which have further to be seen in the context of the difficulties that arise from the influences operating on the child at the time; and thus drawing those matters together, says Mr Geekie, the learned judge was simply not entitled to go beyond the elucidation of those difficulties and reach a finding based on his impression of the child in the ABE interview…
26. I have…reached the clear conclusion that the judge was entitled to make the findings that he did and that there is simply no basis on which this court can legitimately interfere with those findings. My principal reasons for reaching that conclusion would be these. First, the judge has clearly set out [in] his judgment and has clearly kept in mind all the issues which required the exercise of very considerable caution. Secondly, none of those issues, including the deficiencies in the ABE, are of themselves sufficient to prevent reliance on the statements of the child in the ABE. It is apparent that the learned judge had all those matters in mind when he reached the decisive moment of balancing the reasons for caution against the compelling effect that the ABE had had on him at a time when he was viewing it not for the first time but for the second, it having been viewed in court on the first occasion with all parties present.
(1) Achieving Best Evidence sets out clear guidance on the process of preparing for and undertaking an interview of a child. As a matter of good practice, and in order to ensure that the child is enabled to disclose her story, that guidance should be followed in all cases.
(2) Where an ABE interview is significantly flawed such that it is of no evidential value, it is not possible to make a finding of sexual abuse based on that interview.
(3) An ABE interview is not to be deemed to be of no evidential value merely because the ABE guidance has not been followed to the letter. Whether failure to comply with that guidance renders an ABE interview of no evidential value will depend upon the nature and extent of any non-compliance with the guidance.
(4) The fact that an ABE interview is of no evidential value does not prevent the court from making a finding of sexual abuse if there is other evidence of sufficient cogency to enable the court to be satisfied on the balance of probability that abuse has taken place.
First and fifth findings
Second, sixth and ninth findings
Has A been sexually abused?