High Court of Justice in Northern Ireland Family Division Decisions

"While Mr Glasgow made no criticism of the approach of Ms McCormick as described in her records of the sessions with M, the absence of video recordings deprived him of the opportunity to evaluate further the work and to assess the presentation of the child. The submission on behalf of the parents is that this shortcoming compromises their right to a fair hearing; not only should the parents and the court have had the benefit of the evaluation by Mr Glasgow of the child's behaviour and presentation but the parents should have had vindicated their right for the court itself to assess the child by seeing her on video. If the child had proceeded to joint protocol it is likely that any interview with her would have been video recorded and Ms McCormick accepted that video records of the sessions with M would have been helpful not only to Mr Glasgow but also to the court. The work of the Centre is, as I understand it, unique in this jurisdiction and is often relied on by Trusts in their child protection work which is in many cases likely to culminate in public law proceedings. It is therefore very surprising that there are not facilities at the Child Care Centre for the video recording of all interviews and for the storage of those sensitive video recordings. The absence of such facilities is all the more concerning in that it has the potential to compromise the fundamental right of parents to a fair hearing in proceedings which may have a dramatic effect on their family life.

84. The absence of any video recording of the sessions at the Child Care Centre is the second most concerning aspect of the Trust's investigation and it is a matter to which I will return."(emphasis added)

"96. I have also reflected on the clear and cogent evidence from Ms McCormick, who is a very experienced practitioner, not just about what M said but also about what the child did and how her actions and emotions were consistent with what she said and could not have been achieved by coaching or by repeated questioning, whether leading or otherwise or by hearing others discuss what she had said about her father . . .

97. The conclusion of Ms McCormick that M could not have demonstrated on 17 July what she described vocally unless she had actually experienced it is, in my view, well founded. I am fortified in that view by what happened in the session on 1 August when the child demonstrated – by pointing to her genital area – with affect – by making a sad face – when she responded to the question about what made her sad by saying, "Daddy was just putting his finger in there". Notwithstanding the significant frailties, indeed failings, in the procedures of the Trust and those to whom the child was referred the evidence from the Trust therefore satisfies me to the requisite standard that M experienced her father touching her in the vaginal area and causing her to feel sore and sad."(emphasis added).

(1) what the child said;

(2) what the child did;

(3) the affect and emotions of the child; and

(4) the precise circumstances and context in which the above arose.

"… there should always be a video recording. The reason is this: where there is a dispute whether there has or has not been abuse the court is anxious whether it should accept the ipse dixit of the interviewer or interviewers, however skilled and experienced. This is because cases have shown (two of them have been referred to during the hearing, and there have been others in my experience) that the precise questions, the oral answers (if there are any), the gestures and body movements, the vocal inflexion and intonation, may all play an important part in interpretation. Where there is a dispute, there should be an opportunity for another expert in the field to form a view. Often, no doubt, he would reach the same interpretation and conclusion. In other cases he might not, and in the interests not only of justice between the parties but of doing its best to arrive at the truth of the matter in the interests of the child, the court should have the benefit of such evidence, so informed."

"There are, however, some general observations which I feel I ought to make. First, in respect of the social worker's approach to interviewing C, I am well aware of the difficulty in obtaining spontaneous evidence from a small child. But over the years, in the detailed recommendations in chapter 12 of the Cleveland Report and subsequent decisions of the Court of Appeal and the Family Division, together with the principles laid down in the Memorandum, social workers and the medical and other health professionals have been put on guard against prompting or leading children to provide information in these cases. For the purposes of civil proceedings in the family context, the guidelines set out in the Memorandum, required for criminal trials, may not have to be strictly adhered to, but its underlying principles are equally applicable to care or private family law cases. Spontaneous information provided by a child is obviously more valuable than information fed to the child by leading questions or prompting. The questioning of young children is a difficult and skilled art. Some children have to be helped to give evidence, but the greater the help provided by facilitating the answers the less reliable the answers will be. If it is necessary to prompt in the investigative stage, it must be done so far as possible in a non leading form so as not to indicate to the child a possible answer. It may be difficult to obtain the information which the young child has to impart within a single session which also must not go on for too long. It may be necessary to interview the child again. But the more often the child is asked questions about the same subject the less one can trust the answers given. To remind a child of earlier answers and, for instance, to show the child earlier drawings to nudge the child's recollection has its own dangers as to the reliability of the answers then given. Efficient audio and/or audio recording of the question and answer sessions is most desirable and should always be put in place if it is available. There will always be cases (and some are reported) where these general guidelines are not followed and the evidence is nonetheless accepted but those cases are unusual. The answers given by the two principal social workers allocated to this case to the criticism of their questioning shows a sad lack of understanding of the importance of the interviews for the purpose of civil court proceedings which are, for the child, and the child protection process, as important as the criminal trial. The unsatisfactory evidence is unlikely in family proceedings to be excluded entirely but may be of such little weight that the court cannot rely upon it. Social Workers, in particular, must consider the purpose of the interview and whether it is being conducted with a view to taking proceedings to protect the child or for separate therapeutic purposes where the restrictions upon prompting would not apply but the interview would not be for the purposes of court proceedings. It is essential to distinguish between interviewing the child to ascertain the facts and interviewing to provide the child with help to unburden her worries. The therapeutic interview would seem to me to be generally unsuited to use as part of the court evidence, although there may be rare cases in which it is necessary to use it."