Here, Arron Thomas discusses the issue of sexual abuse in care proceedings and the important case of Re P (Sexual Abuse – Finding of Fact Hearing)  EWFC 27.
1. In Wigan BC v M (Sexual Abuse: Fact-finding)  EWFC 6, I recall the visceral power of the words of Peter Jackson J (as he then was) as he read out the opening words of his judgment, starting with: ‘The perpetrators of sexual abuse are inadequate individuals who control weaker people, often children, for their own gratification’. More recently, in Re P MacDonald J repeated such words in his closing remarks to highlight the importance of a fair process and convey to professionals what is lost to children and to justice if there is a flawed investigation.
2. Re P (Sexual Abuse – Finding of Fact Hearing) represents an excellent opportunity to snapshot all of the guidance arising from various sources into one judgment and MacDonald J achieves this with characteristic class. I do not propose to extract large tracts of the judgment but shall signpost and discuss the salient points which will assist any practitioner undertaking an examination of issues concerning the sexual abuse of children.
3. MacDonald J was agog at the fact that none of the professionals in the case had heard of the Cleveland Enquiry (1987) and its significance to the investigation of allegations of sexual abuse involving children. Further, he noted the prevalence of the use of the word disclosure and the implicit lack of neutrality that flows from its use. However, the learned judge did not wish to attach blame to the professionals on the ground, no doubt there are training issues which need to be addressed.
4. Any case involving allegations of sexual abuse against children involves a tightrope walk for those conducting an investigation and it is a difficult task. Those involved in gathering information amounting to an allegation of sexual abuse need appropriate training in how to elicit the information fairly. Unfortunately, the judge had no choice but to comment on the impact of the application of poor practice by professionals, even with the best of intentions.
5. As MacDonald J builds into his judgment, one can see discussion of the question of the access to children of pornographic details on the internet and how conclusions as to the source of detailed knowledge of specific sexual acts must be treated with greater care than in the past. This of course is but one of the factors for the court to take into account at the end of the process but one must look at the broader canvass of evidence or the ‘jigsaw puzzle’ as MacDonald J puts it. This is significant because we are regularly dealing with cases where a child has not been cross-examined either by video or within a court room on the disputed allegations. In the absence of forensic challenge, the court is dealing with hearsay evidence. Can a court make findings on the basis of hearsay alone?
6. According to Phipson on Evidence, a serious unsworn allegation can be accepted as true by a civil court. However, there is always a broader context, recognised within the 1997 Handbook of Best Practice in Children Act Cases which enjoins all professionals working with children to read the evidence of a child in the context of the surrounding evidence. This sounds obvious but as with many simple requirements it is often overlooked: We must look at (a) What a child has said and (b) the circumstances in which it was said (R v B CC ex parte P  1 FLR 470).
7. Any analysis of the evidence must factor in corroboration and we must ask ourselves: what is the independence of the allegation? Is there evidence of contamination? How plausible is the substance of the allegation within the context of the case? The difficulties arise when dealing with a number of allegations made by a number of children against a number of adults. MacDonald J gives helpful guidance: The court and professionals must avoid a ‘totalising’ approach – the ‘oh well there are lots of alleged victims so there’s no smoke without fire’ approach. Instead they must evaluate each child’s allegation of sexual abuse separately against the applicable standard of proof.
8. If you are to be involved in a sexual abuse case for any party, also read AS v TH (False Allegations of Sexual Abuse)  EWHC 532 Fam which contains a comprehensive list of applicable guidance. Part of the difficulty is that the mind of a child is so complex, their memory is so multi-layered and malleable. Each time a memory is retrieved it is effectively rewritten. Any flaw in investigation may undermine a child’s ability to remember the truth of events and recount it.
9. MacDonald J is clear there can be no preconceptions on the part of professionals. In oral evidence, a police witness expressed the view there is a policy of ‘believing the child’. As far back as the Cleveland Enquiry in 1987 this policy has been criticised – it is about keeping an open mind. Following the evidence is so important in this process and to concentrate on what a child has said and weigh the words objectively. This process is so often undermined at its inception. In a Review of the Metropolitan Police’s handling of non-recent sexual offence investigations alleged against persons of Public Prominence (2016 Sir Richard Henriques) the need for neutrality is stressed from the outset of any investigation. If there is not neutrality, confirmation bias will creep in and if this creeps in it is usually fatal to an investigation, which we will come onto this later.
10. This guidance does not only relate to police witnesses or social workers but also to foster carers. Notwithstanding the need for a foster carer to be alert to issues of sexual abuse and develop a trusting relationship, a foster carer must listen to the child, take the allegations seriously, and not prejudge. It is important to note that the Achieving Best Evidence Guidelines apply before a police interview. This is not always known by professionals working with children: Re SR (2018) EWCA Civ 2738.
11. If any professional is taking a first account from a child, they should, according to paragraph 2.5 of ABE Guidelines: (a) take a brief account, (b) not a detailed account, and (c) deal with where, when and who. Anyone taking a note should listen, not interrupt, and if questions are going to be asked they should only be (very) open questions. The following tips apply to any social work professional speaking to children about sexual abuse:
- 1) Be careful
- 2) Keep a record
- 3) Plan
- 4) A note MUST be comprehensive
- 5) It must INCLUDE YOUR QUESTIONS NOT JUST ANSWERS
- 6) Note down demeanour
- 7) Note any additional comments
- 8) Write this note down as contemporaneously as possible
- 9) Use the child’s own words
- 10) DO NOT SUMMARISE
- 11) Take a social history
12. It is easy to criticise professionals working with children and sometimes you are damned if you do and damned if you don’t. The court applies a very high standard and applies a spotlight to each stage of the forensic process. The importance of collaboration and planning cannot be overstated. Time lost between first account and ABE interview is a possibly fertile breeding ground for contamination. Any social work professional must liaise with the Investigating Officer and co-ordinate movements. Not just does this reduce delay but, more importantly, it removes the need for a vulnerable child being interviewed on more than one occasion by more than one professional.
13. Although the ABE guidelines are advisory and not legally enforceable they are rigorously applied by the courts. Frequent pitfalls of this process include: (a) lack of planning, (b) lack of preparation for interview, (c) failure to understand the context within which allegations were made, (d) failure to enter the interview room with an open mind, and (e) failing to avoid the need for repeat interviews of children. If these pitfalls can be avoided then there is more likely to be a fair process. If they are not, then the process will be picked apart by experienced counsel.
14. It should also be said that the presence of flaws does not render the evidence of a child unreliable. The crux is whether the flaws are ‘forensically significant’ (Re E (A Child)  1 FLR 1675). The question for the court is whether the flaws are so fundamental as to render an interview or process as unreliable or to diminish its weight. It is so frustrating to see in many cases where there is an ostensibly credible complaint, the finding is not returned on the basis of a flawed investigation. The situation is improving over time and there is a greater awareness of the issues highlighted within this blog but clearly MacDonald J has considered it necessary to restate the principles set out in AS v TH, highlighting a continuing training need.
18 St John Street
25 November 2020
Arron Thomas is a member of the Family Department at 18 St John Street Chambers. If you have any queries about this or any other related subject, please feel free to contact us on our usual contact details and we will be delighted to assist you.