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JB (a child) Re (sexual abuse allegations) [2021] EWCA Civ 46

Appeal against findings of sexual abuse on the basis of allegations made by a child for the first time at age nine about incidents that had happened some 4-5 years previously upheld.

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E, born in 2009, had been removed from her mother's (M) care in August 2013 in previous proceedings that concluded in 2014 with a special guardianship order to W.  The issues in those proceedings were neglect, drug and alcohol abuse and domestic abuse.  E had occasional contact with M post proceedings until an altercation between W and M ended all contact.  Subsequent to that, W reported that E's behaviour deteriorated including sexually abusing her sister, injuring the family pet and urinating on property.  In December 2017, W reported to the LA that E had alleged she had been sexually abused by her mother while in her care.  A social worker and police officer spoke to E at school, and following that an ABE interview was conducted.  In the days leading up to that interview, E wrote a series of notes in which she described acts of abuse.  These formed the basis of the ABE interview. 


In 2019, M became pregnant again and gave birth to J.  The LA issued proceedings, J was removed from her care and subsequently placed with relatives.  M conceded her history of alcohol and drug misuse, and J's father's criminal history.  In addition the LA sought findings in relation to E's allegations of sexual abuse. 


The judge acknowledged that there had been "clear breaches" of the ABE guidance but considered that they were not of sufficient magnitude to discredit the process of the evidence collected.  He went on to find the allegations of sexual abuse proven.  The mother appealed, relying principally on grounds that i) the judge had failed to consider whether E was a reliable and credible witness and ii) that the judge's analysis of the context in which the allegations were made was flawed.


Appeal allowed.  Newey LJ  emphasised the importance of complying with ABE guidance, referring to previous judgments (para 11) and distilling the elements of those cases that were of particular relevance.  While acknowledging the Judge had set about the difficult task diligently and conscientiously, the findings of abuse could not be sustained.  An important feature was the age of the child and the delay between last living with her mother and making the allegations. (para35).  Another important matter was that the ABE interview departed from the guidance to such an extent it seemed wrong to describe it as an ABE interview at all (para39).  There had been no "rapport" phase establishing ground rules, and no "free narrative" phase, since it consisted largely of the officer reading E's notes and asking her about the content.  

 
The court noted that in many cases where allegations of sexual abuse are set aside on appeal, it is appropriate to remit for re-hearing.  However in this case given the child's very young age at the time of the alleged incidents, the delay between the alleged incidents and the allegations made and the child's history of lying and manipulative behaviour the deficiencies in the investigation were on a scale that no court could properly make findings.  The court also took into consideration that M conceded that J could not return to her care.  In the circumstances.  The findings relating to sexual abuse were set aside and the case listed for disposal. 


Case Summary by Martina van der Leij, Barrister, Field Court Chambers

 

For full case please see BAILII