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Re C (A Child)(Fact-finding) [2022] EWCA Civ 584

The Court of Appeal dismissed a father’s appeal against findings in care proceedings where criticisms were made of ABE interviews, and the judge had drawn an adverse inference from the father’s failure to attend court to give evidence.

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Background

A, now 14, lived with her father (F) after the breakdown of her parents' relationship in 2011. In February 2021, when she was 12, A was found "home alone" by police and removed to a family placement. As a result of A's allegations of neglect and physical ill-treatment, F was arrested and made a no comment interview. At an ABE interview, A repeated her allegations, referring to notes she had made.  A few days later she showed her social worker an entry in her notebook which referred to F lifting her top and hitting her "boons"; this was not followed up for some time. Meanwhile care proceedings commenced and A had a number of placement moves including a brief but unsuccessful placement with her mother; her behaviour was very disturbed and she took two overdoses.

In May 2021 A was visited by a police officer and social worker in respect of her notebook entry. She said that F had touched her breasts and threatened her with a knife and with strangulation. She was very distressed. In a second ABE interview in September she made further allegations including those she had mentioned in May. This time she did not have her notes with her. The "rapport" and "truth and lies" sections of the interview were not recorded.

F denied all the allegations. At a Re W hearing it was decided that A should not give evidence at the fact-finding hearing, a decision that was not appealed or revisited at the hearing itself. Despite being warned that adverse inferences could be drawn, F did not attend the fact-finding hearing, saying that as A was not required to attend, he would not do so either.

The judge heard the professional evidence and viewed both A's interviews. She considered F's reasons for not giving evidence to be "ridiculous" and made findings in respect of the majority of A's allegations.

The appeal

F appealed the findings on the basis that:

i) The judge was wrong to accept A's evidence via the ABE interviews, which were flawed and

ii) The judge was wrong to reject F's reasons for not giving evidence and to draw an adverse inference.

Decision

The CA was "wholly unpersuaded" by the criticisms made of the judge's reliance on the ABE interviews. In summary:

• It is for the judge to assess the evidence and the weight to be given to each piece of evidence;

• The judge must consider the ABE interviews and the extent of any non-compliance with the guidance in the light of all the other evidence;

• An appeal court will only interfere with the trial judge's appraisal of the evidence where there is very clear justification;

• The judge was fully alive to the criticisms of the ABE interviews, appraised the evidence carefully and was entitled to come to the conclusions that she did.

Further, the judge was entitled to find that the father's reasons for not giving evidence were not credible and was entitled as a matter of law to draw an adverse inference.


Case summary by Gill Honeyman, Barrister, Coram Chambers

For full case, please see BAILII