I do not always agree with Barbara Hewson, but this is very well worth reading:
The UK Department for Education last week published
research into rates of reporting child abuse.
Feminists claimed that the fact
that a third of those interviewed said they would not report suspicions of
abuse amounted to ‘victim-blaming’.
But the Independent’s report last
Friday mentioned an important finding, the significance of which has been lost
on the survivor lobby.
It said that the fear of having misread a situation, and
of wrongly accusing someone, is the biggest factor that deters reporting.
A ruling from the Court of Appeal
on 19 May in a family case shows just how skewed the system has become when
dealing with accusations of abuse.
The court quashed sensational
findings of abuse made by a judge in the county court last January, against a
father (‘Mr E’) and his 15-year-old son, ‘A’.
Mr E was said to have assaulted a
young girl, ‘D’, on scrubland from the age of four. He was said to have forced
A to engage in sexual activity with D. He also orchestrated sexual activity
between two other children, ‘B’ and ‘C’.
In addition, the judge concluded that
both Mr E and A had attempted anal penetration of a dog (a pit bull, described
by the police as ‘not a docile dog’).
The judge adopted the ‘cycle of abuse’
theory, finding that A was first abused and went on to abuse others.
Two families were involved in this
saga: the E family, whose son, A, was aged 15; and the ‘F’ family, who have two
boys and a girl: B (15), C (10) and D (8).
In 2010, A had accused two uncles of
abusing him, but his parents did not take any action after A said he did not
want the police involved.
In February 2015, A, who was out with the other children,
was caught shoplifting. The police returned them to their parents only to find
the parents all inebriated.
So the children were taken into foster care. The youngest, D, then accused A and his father of abusing
her.
This led to a rash of disclosures by A, B and C, also alleging abuse.
Inexplicably, the foster carer then took the three younger children on holiday.
The first problem arose with the
police interviews of the children, conducted after they returned from holiday.
Interviews of complainants in sex cases are called ‘achieving best evidence’
(ABE) interviews.
The idea is that the interviewee sits in a comfy chair, and
the interviewer establishes a ‘rapport’ with him/her by discussing neutral,
non-relevant topics and by trying to understand if the interviewee understands
the difference between truth and lies.
These interviews are recorded.
However, in this case, the
introductory phase was not recorded. It was therefore unclear what the children
were told about the ‘ground rules’.
Next, the interview of D (the youngest)
contained leading questions, such as introducing the names of alleged abusers
into the narrative.
D made no allegations. Then D left the room for an hour.
Mysteriously, as soon as she came back, she started making allegations.
It appears
she spoke with her foster carer, who claimed that all she said to D was, ‘You
need to say all the things while you are here’.
The Court of Appeal commented
that an ABE interview should not be used simply to get a child to repeat on
tape what she may have said to someone else.
A was so distressed by his
interview that he was physically sick during it. Meanwhile, B made no
allegations of abuse in his ABE interview.
A striking feature was that some
abuse allegations, which the foster carer reported the children as making, were
never mentioned by them in their interviews.
Also of concern was that the police
interviewer subsequently conducted what were called ‘fast track’ interviews of
the three younger children at home, without keeping a proper record of what
questions were asked or how the children responded.
The Court of Appeal called
this ‘unorthodox’.
The children’s accounts contained
many inconsistencies. C had a history of making, and then retracting, false
allegations against others in the past.
D alleged that the children had been
taken to hotels, where they were abused and filmed. But the police could find
no evidence to substantiate her dramatic claims.
She claimed that there was a
hiding place in the wall at home: the police knocked a hole in the wall, but
could find nothing.
Eventually the police concluded
that the ABE interviews could not be used in court, and that the children’s
accounts would not stand up to scrutiny.
So no criminal charges were brought. However, there were parallel care proceedings in the family court.
A was
confined in a specialist residential unit for victims/perpetrators of sexual
abuse.
At a pre-trial hearing, complaints
were made about the ‘fast track’ interviews at the trial. But the family judge
refused to allow the interviewing officer to be called to be questioned.
Even
more worryingly, the judge decided that none of the children should give
evidence, either.
Many people would find this
bizarre: if a criminal trial had proceeded, the children would have had to give
evidence, and be questioned (albeit via video link).
Apparently, the practice
in the family courts is that even mature teens should not give evidence.
This approach ignored a Supreme
Court ruling from 2010, Re W,
where the Supreme Court said that the question of whether a child should give
evidence should be approached on a case-by-case basis.
A blanket prohibition on
children giving evidence was incompatible with the right to a fair trial.
Baroness Hale stressed that focused questions, which put forward a different
explanation for certain events, ‘may help the court to do justice between the
parties’.
That ruling went unheeded by the family courts.
This is remarkable, suggesting that
the family courts operate a separate system of legal rules unaffected by fundamental
legal principles, such as the right to a fair trial and the supremacy of
judgements of the Supreme Court (the doctrine of legal precedent).
It is
perhaps not surprising that many ordinary people view the family courts as
inherently unfair.
The judge’s reason for not calling
the children was that, ‘the one question you cannot put to the child witnesses,
is “You’re lying aren’t you?”’.
So, even if they had been called, they would
not have been challenged on that basis.
The judge also said that, if they were
called, ‘I would not allow you to put the contradictions. You have got to bear
in mind the age of the children.’
But at 8, 10 and 15, these children
were not tender toddlers.
At this juncture, the judge had not even seen the
videos of the ABE interviews, nor had she watched them by the time the trial
began. So day one was spent watching them.
The Court of Appeal was very
critical of the judge’s reasons for making the findings of abuse that she did.
It said that she failed to acknowledge, or deal with, the numerous deviations
from good practice in the police interviews.
She adopted a broad-brush and
superficial approach, and failed to engage in the level of analysis that was
required.
She was wrong to treat each child’s account as corroborating the others’,
and failed to grapple with the many inconsistencies in their interviews and
earlier ‘disclosures’.
For example, the fact that D made accusations, which
differed from those of her brothers, and the fact that B made no allegations in
his interview, could not be corroborative.
Then the Court of Appeal had to
address the way that A was treated.
A has a learning disability, which was
described as ‘significant’. He had his own solicitor and a guardian. They
visited him a couple of months before the trial, to go through the evidence
with him.
A, like any client, was entitled to legal professional privilege: the
opportunity to receive legal advice in confidence.
But when the judge learned
that this meeting had taken place, she ordered the guardian to file a statement
about it.
At the meeting, A was accompanied
by a key worker named ‘G’.
A’s solicitor explained that they ‘needed a steer’
from A as to whether anything sexually inappropriate had happened to him or
not.
As the Court of Appeal noted, it was unclear what a person with a
significant learning disability would understand.
A did not respond. The
guardian noted that A seemed tense and exhausted.
During a break, the guardian wrote
the words ‘YES’ and ‘NO’ on a piece of paper. She left it with A and his key
worker.
The key worker decided that A was too tense to pick up the pen. So she
took the pen and asked A which answer he wanted her to tick, A indicated ‘YES’.
So G ticked ‘YES’.
The Court of Appeal decided that
A’s rights to a fair trial were breached to a significant degree by all of
this.
The judge’s order for an account of his meeting with his legal team was
‘highly unusual’.
The exercise whereby G ticked ‘YES’ was evidentially dubious,
not least as A’s understanding of what he was being asked was wholly unclear.
The Court of Appeal said that the judge’s analysis of the evidence in relation
to A was ‘both confused and inadequate’.
This case is a warning of how
unfairly the system can operate when allegations of abuse surface.
It’s
unsurprising that members of the public are hesitant about making abuse
allegations.
Their confidence is unlikely to improve, unless police
investigations and legal hearings become much more rigorous.
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