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Family Law

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19 MAY 2016

Re E (A Child) [2016] EWCA Civ 473

Re E (A Child) [2016] EWCA Civ 473
(Court of Appeal, McFarlane, Gloster and Macur LJJ, 19 May 2016)

Public law children – Evidence – Child witnesses – ABE interviews

The Court of Appeal allowed the appeal from findings of sexual abuse made against the father and his teenage son.

During care proceedings allegations were made of sexual abuse against the father and his 13-year-old son. However, the police investigation found no evidence to support the allegations. The police found that there was no realistic prospect of conviction since the ABE interviews of the children could not be used in court and the criminal case was dropped.

In the care proceedings the judge found inter alia that the father had coerced the four children to engage in sexual activities including vaginal, anal and oral penetration with each other for his own sexual gratification. The 13-year-old had been influenced by his father and had no alternative but to do what he was told.

The father appealed largely in respect of the issue of the use of the children's evidence, specifically the ABE interviews. The local authority opposed the appeal but accepted some of the matters of which criticism was made. Those criticisms included the police officers having preliminary discussions with the children off camera and without making a written record of what was said, using leading questions, and that the interviews were not conducted at the earliest available opportunity because the foster carer had taken the children away on a pre-arranged holiday. In addition, the same police officer who conducted the ABE interviews had subsequently conducted a fast-track interview with the children.

The appeal was allowed and the findings of fact were set aside. There had undoubtedly been a significant departure from recognised good practice by those undertaking ABE interviews. The judge below had dismissed those matters as being of concern but held that the interviews otherwise met the ABE requirements. That conclusion was simply not open to the judge. The departures from the ABE guidance required the judge to engage with a thorough analysis of the process in order to evaluate whether any of the allegations that the children made to the police could be relied upon.

The father was able to establish on the available evidence that each child had given a different account to his or her siblings, each child made significant factual allegations to the foster carer which were not repeated in the ABE interviews and one of the children made no allegations of sexual abuse in his ABE interview.

The guidelines given in Re W (Children) (Family Proceedings: Evidence) [2010] UKSC 12 were reiterated and it was noted that, 6 years after that decision was made, the previous practice and culture surrounding children giving evidence remained largely unchanged. The Court of Appeal highlighted that in any case where the issue of a child giving evidence was raised it was necessary for the court to engage with the factors identified by Baroness Hale in Re W, together with any other factors that were relevant to the particular child or the individual case, before coming to a reasoned and considered conclusion on the issue.

Case No: B4/2016/0319
Neutral Citation Number: [2016] EWCA Civ 473

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM HER HONOUR JUDGE WATSON

XX FAMILY COURT XX14C01185

Royal Courts of Justice
Strand
London
WC2A 2LL

Date: 19/05/2016

Before

LORD JUSTICE McFARLANE
LADY JUSTICE GLOSTER
and
LADY JUSTICE MACUR

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Re E (A child)

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Mr William Tyler QC and Ms Jennifer Steele (instructed by Alsters Kelley LLP) for the Appellant
Ms Elizabeth McGrath QC and Ms Martine Kushner (instructed by X City Council) for the First Respondent
Ms Hannah Markham QC and Ms Adelle Eveleigh-Winstone (instructed by Tustain Jones & Co. Solicitors) for the Second Respondent
Ms Lorna Meyer QC and Ms Yolanda Pemberton for the Third Respondent
Mr Andrew Bainham (instructed by Brethertons LLP) for the 2nd to 4th Interveners

Hearing date : 7th April 2016

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Re E (A Child) [2016] EWCA Civ 473


Judgment

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