Achieving Best Evidence in Family Cases involving allegations of sexual abuse – The Importance of Prior Planning
Can you recall the 4 phases of an ABE interview? Well, if you can you’re already ahead of a number of professionals involved in conducting them.
A judgment was released earlier this week in the recent case EF, GH, IJ (care proceedings)  EWFC which has highlighted a continuing failure of ABE interviewers failing to adhere to the guidance. It’s no surprise that extra care needs to be taken when conducting an interview with a child, after all Children are often poor historians, and many are suggestible: Re B (Allegation of Sexual Abuse: Child’s Evidence)  2 FLR 1071.
While the necessity of children’s evidence being heard in the family courts is widely agreed, the methods of obtaining this evidence has been subject to debate. The starting point is by way of an ABE interview or ‘Achieving Best Evidence’ and there is extensive guidance to ensure good practice. When done correctly the ABE will stand as a child’s evidence and should avoid the need for the child to be directly involved in the proceedings. However when done poorly the ABE interview can have the opposite effect and leave a piece of evidence that is so flawed that little to no weight can be attached to it.
In the recent case of EF, GH, IJ (care proceedings)  EWFC the Court was concerned with three brothers who made a series of increasingly serious allegations against their Father and members of the paternal family. During the course of the investigation the brothers were subjected to a total of 22 ABE interviews and a series of ‘non-ABE’ interviews. What is more concerning than the sheer pressure under which these children were placed is the abject failings by the police officers. The court heard evidence from a Detective Constable who said she would have continued to interview the children, worryingly going on to say, “they knew what I was looking for”.
This has to be of concern to all of those involved in child protection. These three brothers expressed feeling pressured into supplying a string of allegations in order for the police to believe them, and presumably stop all the questioning.
At para 154 of his Judgment Mr Justice Keegan quoted EF as saying
“I was just searching for things to tell the police, it seemed to be what they wanted to hear. The police seemed to want more and more incidents; to me it felt like if I didn’t say something, they wouldn’t take me seriously;”
“Sometimes I felt under pressure from the police to say what I thought they wanted to hear. Sometimes, and because of the things I still say happened to me, I wanted to be taken seriously and I exaggerated because of that.”
A balance must be stuck between obtaining the child’s best evidence for use as their evidence in chief and not requiring the child to constantly repeat themselves. Great care needs to be taken if the risk of obtaining unreliable evidence from a child is to be minimized. However what is concerning is that this does not seem to be an isolated incident, but a pattern of standard failings that are commonly now being seen by practitioners and Judges.
In a recent case I’ve been involved with I saw first-hand the detrimental effects of a poor ABE. These failings weren’t simply limited to the substantive interview, they began at the pre-interview stage where the officer failed to follow the guidance of broad questioning, asking the young girl a series of direct leading questions on where she had been touched. I observed a courtroom of professionals stunned at the blatancy of these failings, made worse by the officer’s failure to accept where she had gone wrong. When cross examined the officer went so far as to justify the questioning, she saw it to be “OK” as the question didn’t contain the accused’s name. It must follow that if there is no understanding of the failings, these failings will never be rectified.
Unfortunately, the mistakes didn’t stop there, during the main ABE a different officer produced an equally flawed piece of evidence. There appeared to be no adherence to the guidelines and the four-phased approach of: rapport; free narrative; questioning and close. Within the good practice guidance there is a clear emphasis on eliciting a child’s free narrative. This young child had only a cursory conversation about truth and lies, which occurred somewhat late in the interview, more leading questions and an ill-defined closing phase. The combined results were as such that the judge felt little to no weight could be placed on the ABE interview.
The guidelines also detail the importance of prior planning. When the first officer met with the child this would have been the stage for assessing the needs to the individual child, whether an intermediary would have enabled a more free flowing conversation or any other measures that could have been put in place to allow her to give her narrative account.
What does the research say
One theory as to why interviewers may not be hitting the mark was given by Professor Ray Bull (co-author of the Memorandum of Good Practice), who described the guidelines as “how to do the easy ones”, effectively calling it a ‘catch all’ for all children, ranging from those who may have witnessed an assault to children suffering deep trauma as a result of prolonged sexual abuse. This raises the question of what more can be done. It is plain to see that robust guidance alone is not sufficient to ensure the quality of ABE interviews and to “achieve the best evidence”. Immediate improvements could be achieved through better planning at the outset as to how the chid can be assisted to give a true free-flowing narrative, supplemented by improved supervision of interviewers and feedback from the courts as to the impact of poor quality ABEs.
The guidance further recommends joint interviews between police and social workers, but evidence suggests this is far from being standard practice. “Achieving best evidence in child abuse cases – a joint inspection” (2014) report noted:
“Forces should review their current interview procedure with children’s social care services within their force area to ensure that it is in line with the Guidance. Where social workers are not regularly interviewing or monitoring interviews with children, arrangements need to be in place to ensure that they are still able to gather the information required to safeguard the child, without requiring the child to repeat their story.”
Another apparent failing is the lack of Intermediaries being used in the ABE process. Even very young or vulnerable children do not seem to be afforded their presence. The reasons for this varied, but police forces need to promote their use and effectiveness. This links with the need to conduct better assessments of the child prior to the interview; unfortunately, this all stems from a seeming lack of prior planning.
What does the law say
There is significant case law on the subject which details its importance. Firstly, take the case of Re E (A Child) (Family Proceedings Evidence)  EWCA Civ 473,  1 FLR 1675 which made it clear that whilst there may be deviations from good practice in procedures, the court must consider whether flaws in the ABE process are so fundamental it makes the evidence ‘wholly unreliable’.
In TW v A City Council  EWCA Civ 17 (a case which concerned an earlier version of the guidance) Sir Nicholas Wall said:
“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 a 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”
It is well accepted that extra care needs to be taken when obtaining evidence from a child in a sexual abuse case; this is amplified in the absence of ‘any probative medical or other direct physical evidence to support a finding’ (Re J (Vulnerable Witness: Sexual Abuse: Fact Finding)  EWCA Civ 875).
But honestly, there is no justification for these failings aside from a failure to adhere to the process of forward planning. Put simply, better adherence to the guidelines would ensure that justice is provided to substantially more young people. These young people would thus have their voices heard rather than the court being faced with little choice but to effectively ignore the ABE interview.