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(Court of Appeal, Rimer, McFarlane, Ryder LJJ, 24 October 2013)
When the child's parents separated she remained with the mother who remarried. After 10 months the father made an application for contact and during those proceedings the maternal aunt alleged that the step-father had physically abused the child. The father applied for a residence order based upon the allegations.
During the police ABE interview the child claimed the step-father had hit her which he denied. Police investigations revealed that the step-father had a previous conviction for indecent assault of a 17-year-old male.
The child was subsequently moved to her father's care at the maternal grandmother's home and the mother was prohibited from removing her. The child then disclosed that she had been sexually abused by the step-father which was repeated to the social worker and a note made of the discussion. A second ABE interview took place and the child was medically examined.
The medical evidence demonstrated disruption to the child's hymen but no physical evidence of penetration. The step-father was not charged. In welfare proceedings in relation to the child the judge found that the allegations were proven and a residence order was granted to the father. The step-father appealed the finding that he had sexually assaulted the child.
The appeal was dismissed. The judge had conducted a thorough examination of the evidence including an analysis of the reliability and credibility of the information and witnesses before her. While there were criticisms of the ABE interviewing technique there was nothing fatal to the interviews as evidential material. The experienced social worker gave detailed evidence about the suggestion that the child had been coached and expressed his opinion that a number of factors indicated she had not been coached. The judge cross referenced that opinion with her own observations and, accordingly, attached weight to his opinion as she was entitled to do.
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