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T v Derby City Council, A, B and X [2020] EWCA Civ 507

Court of Appeal set aside findings of sexual abuse of a child by her father for reasons including that the failures to comply with ABE Guidance were too numerous to be overcome in the context of this case.

The father appealed a decision of HHJ Williscroft made following a 6 day fact finding hearing concerning A (a boy now aged 12), B (a boy now aged 10) and X (a girl now aged 9). Permission to appeal was granted by Peter Jackson LJ.

The father appealed against the sexual abuse findings made against him, not the findings of physical abuse. Neither the mother nor her then domestic partner W appealed the findings made against them which included a very large number of findings sexual abuse.

The findings against the father were that 1) between 2015 and July 2018 in X's bedroom at the father's home he sexually assaulted X by touching her genitals and digitally penetrating her vagina, and 2) between 2015 and July 2018 he encouraged X to have sexual intercourse with him. She refused to do so.

The appeal hearing was one of the first to be conducted remotely and the judgment records that a very satisfactory hearing was conducted.

X spent the first 4 years of her life with both parents and with A and B. The father left in February 2015 when the parents separated, and in May 2015 the mother suffered a serious accident and sustained injuries of a life-changing nature. For the first 6 months thereafter the children were in the care of friends of the mother, and they then moved to the paternal grandparents' home. The father lived there from time to time. In 2018 the mother moved to live with W. In July 2018 the mother accompanied by her friend S went to the grandparents' home and demanded the children be handed over to her. The grandparents felt unable to refuse and the children were brought to the home where the mother and W were living.

The children then lived with the mother and W until the Police removed them in October 2018. In that 11 week period the children lived in what was described as a depraved atmosphere. Included in the acts of abuse found against W were sexual assaults on and digital penetration of X, acts of the same character as found against the father. The mother played a full part in that abuse: she was present when acts of abuse took place; she herself sexually assaulted X and encouraged W in his own acts of abuse perpetrated on X. The children were encouraged to be naked in the home and to keep secrets.

McCombe LJ, in a judgment with which King and Peter Jackson LJJ agreed, concluded that in light of the extremely tenuous nature of the evidence, the allegation against the father of encouragement of X to engage in sexual intercourse could not be sustained. The circumstances of a Police Officer's conversation with X on 15 October 2018 about the allegation against the father, inadequately recorded as it was, rendered the contents of that conversation unacceptable as evidence. The allegation was never repeated and did not feature in anything X said in either Police interview. There was really no satisfactory evidence of it at all.

As to the allegation of digital penetration of X, the evidence had a number of unsatisfactory features. The principal evidence was found in the first formal Police interview with X and was repeated, entirely as a result of prompting, 8 days later in the second Police interview. A number of features of those interviews demonstrated a failure to comply with the applicable Guidance. Failure to comply with the Guidance will not always render evidence obtained incapable of establishing acts of sexual abuse however deficiencies of this type can be very significant. In this case they were just too numerous to be overcome in order to sustain this single finding in the context of the serial sexual abuse that had been perpetrated by W and the mother against the children in the immediately preceding 11 week period. The value of the evidence about this single alleged act of abuse, elicited at a very late stage of a long interview and only as a result of a distinct prompt about a conversation with S, was reduced to vanishing point.

The transcript and recorded interview did not sit easily with HHJ Williscroft's description of X's statement being clear and spontaneous. The information that was obtained arose from directed questioning of a distracted and tiring child, with no narrative or free recall of any details that might make it possible to understand the circumstances. This was particularly significant where the possible allegation was so strikingly similar to the abuse that the child was recently suffering on a number of occasions at other hands.

The findings against the father did not reflect the domestic context of serial sexual abuse by W and the mother in which the allegations first arose, and the judgment below did not provide a careful assessment of the father's own credibility and an identification of the reasons why his denials were not to be accepted.

The appeal was allowed and the findings of sexual abuse made against the father were set aside.

Summary by Victoria Flowers, barrister, Harcourt Chambers

Read the full judgment of T v Derby City Council, A, B and X [2020] EWCA Civ 507 on BAILII