Case No: B4/2016/0319
Neutral Citation Number: [2016] EWCA Civ 473
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM HER HONOUR JUDGE WATSON
XX FAMILY COURT
XX14C01185
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 19/05/2016
Before

LORD JUSTICE McFARLANE
LADY JUSTICE GLOSTER
and
LADY JUSTICE MACUR

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Re E (A child)

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Mr William Tyler QC and Ms Jennifer Steele (instructed by Alsters Kelley LLP) for the Appellant
Ms Elizabeth McGrath QC and Ms Martine Kushner (instructed by X City Council) for the First Respondent
Ms Hannah Markham QC and Ms Adelle Eveleigh-Winstone (instructed by Tustain Jones & Co. Solicitors)for the Second Respondent
Ms Lorna Meyer QC and Ms Yolanda Pemberton for the Third Respondent
Mr Andrew Bainham (instructed by Brethertons LLP) for the 2nd to 4th Interveners

Hearing date : 7th April 2016

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Judgment
Lord Justice McFarlane: 

Introduction
1.	This is an appeal against findings of sexual abuse made against a father and his teenage son in the course of care proceedings relating to that boy and separate care proceedings relating to the three children of a different family. In addition to a detailed challenge to the judge’s analysis of the factual evidence in this particular case, the appeal raises the following more general issues:
a)	The approach to determining whether a child witness should be called in the course of family proceedings following the Supreme Court decision in Re W (Children) (Family Proceedings: Evidence) [2010] UKSC 12; [2010] 1 WLR 701.
b)	The weight to be given to defects in both the process and the content of ABE interviews conducted with child victims and witnesses (“Achieving Best Evidence in Criminal Proceedings” – Ministry of Justice March 2011).
c)	The approach to be taken by those representing a child in family proceedings where that child is himself accused of being the perpetrator of abuse.
d)	The basic requirements of due process necessary to meet the Article 6 fair trial rights of such a child during the investigation and any subsequent Family Court proceedings where he or she might properly be regarded as either a perpetrator or a victim or both. 
Background
2.	The appeal is against fact finding determinations made by Her Honour Judge Watson, sitting as a Deputy High Court Judge, on 5th January 2016. The children involved are a boy, A, born in 2001 and now aged 15 years, a boy B, born in 2001, and only one month younger than the child A,  another boy C, born in 2006, now aged 10 years and, finally, a girl, D, born in 2007 and now aged 8 years.  A’s parents are the appellant and his wife, Mr and Mrs E (the Es).  The other three children involved in the fact finding determination were the subject of parallel care proceedings and are the children of Ms F.
3.	Although the fact finding process involved allegations of sexual abuse, the process of protecting all four of these children arose from circumstances that were devoid of any sexual element. On 24th February 2015 A, who was in the company of the other three children, was caught stealing sweets and batteries from a local shop. The police tracked all three of the children’s parents to the home of Mr and Mrs F with a view to passing the task of dealing with the children over to the parents. However, on arrival at the Fs’ home the officers found all three of the adults to be in an inebriated and aggressive state. In consequence the four children were taken into police protection overnight. The following day A was returned to his parent’s care, but the F children remained in foster care and, on 25th February, became the subject of care proceedings under CA l989, Part 4 which were issued that day. 
4.	On 20th May 2015 the youngest child, D, then aged 7 years, made allegations to her foster carer implicating both Mr E and young A as having sexually abused her and her brothers. Further allegations were made to the foster carer by D on 25th May and these were in part supported by allegations subsequently made by her older brothers. 
5.	All three complainant children were ABE interviewed by police on 27th May 2015. The reason for the delay between the initial complaint and the ABE interview was that the foster carer took the children away on a pre-arranged holiday during the intervening days. The process adopted by the foster carer, social workers and police, together with the content of the ABE interviews themselves, have been the subject of sustained challenge by the Appellant and those supporting the appeal before this court. 
6.	In early June the police log records that the officer in the case “has since the ABE-s in an attempt to get some clarity from the child[ren] about their disclosure, been to the home address and completed a series of fast track questions with the three children to assist in forming a chronology.”
7.	On 29th May 2015 thirteen year old A was interviewed under caution by two police officers for one hour. A duty solicitor was present throughout the interview as was a member of the local youth offending service acting as an appropriate adult. The interview was conducted on the basis that A had earlier been arrested for an offence, or offences, of rape. During the interview A denied each of the allegations that were put to him.
8.	On the same day A’s father, the appellant, Mr E, was also interviewed under caution and he too denied each of the allegations that were put to him.
9.	In addition to conducting interviews, the police undertook an extensive investigation. An element of the allegations made by the children indicated that they had been taken to a hotel or hotels in a nearby city at which sexual abuse took place which was filmed. In addition to an intimate medical examination of each of the four children, which revealed nothing of significance, the police therefore investigated bank statements and family finances, seized and interrogated all electronic devices, cameras and DVD discs, made enquiries at various hotels and interviewed two of A’s young friends who spent a deal of time at the Es’ home. In addition the police knocked a hole in a wall at the Es’ home to investigate D’s assertion that there was a hiding place there. At the conclusion of this extensive process the police officer in the case reported:
“With all the enquiries I have undertaken I have not found any evidence that corroborates the children’s disclosures or prove any offences have taken place.”
The officer concluded that the ABE interviews could not be used in court and that the children’s account would not stand up to any scrutiny. Her opinion was, therefore, that there was no realistic prospect of conviction. The police investigation was therefore closed.
10.	Following his police interview A was accommodated by the local authority in a specialist residential unit for young victims and/or perpetrators of sexual abuse. He has remained there since that date. Initially the placement was with the consent of his parents under CA l989, s 20 but, since proceedings were issued on 15th July 2015, the placement has been under the terms of an Interim Care Order.
The findings of sexual abuse
11.	At this stage, in order to make sense of what then follows, it may be helpful simply to list the findings of fact made by the judge, rather than to set out in detail the specific, and at times conflicting, individual allegations made by each child. This judgment is a public document and I have therefore summarised much of the more graphic detail that was inevitably included in the judge’s judgment. 
12.	The judge’s findings were as follows:
a)	Mr E had instilled fear in each of the children by creating “a climate of fear” so that the children were compliant with his requests. He threatened them with violence, which he did not in fact use as the threat was sufficient for his purposes.
b)	Mr E had indecently assaulted D. This occurred in the Es’ family home upstairs in a bedroom and, also, outdoors in bushes on scrubland near to some local shops. These indecent assaults occurred on more than one occasion in each of those locations.
c)	Mr E had regularly involved D in acts of oral sex.
d)	The abuse of D had started when she was aged 3 or 4 years and had become so normalised that, on the judge’s findings, she did not object and, rather, welcomed the attention which would result in her being given sweets.
e)	Mr E “made” his son A perform oral sexual activity with D so that he could watch.
f)	Similar sexual behaviour occurred between Mr E and C and also between A and C.
g)	In general terms Mr E orchestrated sexual activity between the children for his personal sexual gratification. For example, B was required to perform sexual activity with his brother and his sister.
h)	On occasions both Mr E and A would film the children engaged in sexual activity.
i)	Sexual activity between the children included penetration with a child’s penis. This was watched by Mr E and filmed by him.
j)	There was not sufficient evidence to prove that Mr E himself had raped any of the children.
k)	On occasions the children would be taken to a hotel where they would be given wine and tablets and required to perform sexual acts with each other.
l)	On occasions other, unspecified, adults would come into the hotel room to watch the children engaged in sexual activity.
m)	The children had been made to perform sexual acts with animals including a specific dog. The judge found that both A and Mr E attempted to penetrate the anus of the dog with their penises.
13.	So far as A is concerned the judge’s findings are nuanced and it is necessary to refer directly to the words of the judgment at paragraph 108:
“In my finding, penetrative sexual activity has occurred between the children, which includes vaginal and anal and oral penetration. This has occurred in the presence of Mr E, who in my judgment was controlling the situation. It has also occurred on occasions when Mr E has not been present. A has been the instigator of abuse under the direction of his father, who has provided the money to buy alcohol and has, by his presence and/or control of A forced all the children, including his own son, to perform acts of gross indecency with each other.”
	 And paragraph 112:
“…A, who, I am satisfied, is enthralled to his father and did his father’s bidding.”
	 And paragraph 117:
“When I consider the allegation sought against A, I have to have regard to his age and his position within the E family. He is dependent on his father and influenced by him…A had no alternative but to do what he was told.”
	 And, finally, at paragraph l19:
“A, like B, is at an age when there will be heightened sexual awareness. This was fertile ground for the sexual abuse I find proved. A is both a victim of abuse and, in the cycle of abuse the victim can become perpetrator of abuse on others. I am satisfied his activities, which include [details given], should be seen in that light. A was acting as taught, directed and orchestrated by his father. A has now found a safe haven from the cycle of abuse.”
	 The Family Court Proceedings
14.	The judge’s fact finding determination took place within the care proceedings relating to A. On 9th September 2015 Ms F and her three children were joined as intervenors within those proceedings. 
15.	At an Issues Resolution Hearing (“the IRH”) on 3rd November 2015, the appellant applied for all three complainant children to be called to give oral evidence at the fact finding hearing which was to (and did) begin on 3rd December 2015. That application was refused by the judge. No party sought a direction that A should give live evidence at the hearing. 
16.	The first day of the fact finding hearing was set aside for the judge to view the DVD recordings of the ABE interviews of the three children. On the second day of the hearing counsel for the appellant applied for a police officer to be required to attend to answer questions with respect to two matters. The first related to the apparent marked change in demeanour demonstrated by D during her ABE interview. In the first section of the interview D had effectively said nothing. She then left the interview room for approximately one hour, with the recording still running, before returning to the room and immediately making allegations of sexual abuse. The second reason put forward for asking the police officer to attend court was to explain the “fast track” interviews of the children at their foster home in early June. The judge refused that application.
17.	The court heard oral evidence from Mr E, Mrs E, Ms F, the foster carer and the social worker. The judge received detailed closing submissions from each of the parties. She reserved judgment which was handed down on 5th January 2016. 
18.	The grounds of appeal relied upon by Mr E are wide-ranging but can be summarised as follows:
i)	error in analysing the evidence of the three complainant children and their mother;
ii)	error in analysing the evidence of A;
iii)	making findings that went beyond those sought by any party;
iv)	effective reversal of the burden of proof; and
v)	failure to take account of the police investigation and assessment.
19.	Mr E’s appeal is supported by Mrs E (against whom no findings were made). Mrs E in particular argues that the judge was in error in the approach taken with regard to her son, A, and that the findings against him should not stand.
20.	The local authority oppose the appeal, albeit that they accept some of the matters about which criticism is made. Those acting for the three complainant children have made targeted submissions on certain of the matters raised in the appeal, in particular the approach taken to calling child witnesses. They do not support any wholesale overturning of the judge’s findings, they do, however, argue that the findings made which went beyond those sought by any party cannot stand and should be set aside. 
21.	Behind the headline grounds this raises the four more general issues set out in paragraph 1.
Outcome of the appeal
22.	In order to make sense of the approach that I have taken in the remainder of this judgment it is necessary at this stage to record my conclusion, which is that the appeal must be allowed and the findings of fact set aside. It may be necessary (depending on the view taken by the local authority and, ultimately, the Family Court) for there to be a re-trial of these allegations. The factors in the case that have succeeded in persuading me that the appeal must be allowed relate to process and procedure, together with the judge’s overall analysis. In those circumstances I have avoided, where possible, expressing a view or a conclusion as to the detail of the allegations and evidence. It is unnecessary to do so in order to explain my reasoning and it is inappropriate to do so where the possibility exists that the case may have to be re-tried.
23.	I now propose to take each of the central points of appeal in turn.
ABE Interviews
24.	Mr William Tyler QC, leading Ms Jennifer Steele who appeared for the appellant before the judge, has identified a number of potential flaws in the ABE process. The first relates to “Phase 1” as described in the ABE guidance in each of the three interviews. “Phase 1” is the preliminary part of the interview in which the interviewer establishes a rapport with the child through the discussion of neutral, non-relevant topics after a preliminary description of the room and the identity of each of those present. Phase 1 should also include a discussion of the “ground rules” and an attempt to establish the degree to which the child understands the importance of telling the truth and the difference between truth and lies. It is apparent that, whatever process was undertaken with each of these three children with respect to the Phase 1 matters, it occurred off camera. The absence of recorded information as to this important early stage is compounded by the fact that no written record was kept of these interviews, as is normally required within the ABE scheme or, if any written record was maintained, it has not been disclosed into the family proceedings. It is therefore plain that the interviewer had some discussion with each child before entering the video suite, but there is no evidence of what was said. Mr Tyler submits that this gap in the evidence is important and can only reduce the potential for a judge to rely upon the answers given by the children in the subsequent stages of each interview which were recorded. 
25.	Moving on, Mr Tyler submits that each of the three interviews is of a very poor quality in that the interviewing officer, with each child, uses blatantly leading questions during which elements of the narrative, not previously referred to by the child, are introduced. A most striking example of this is at the very start of the taped part of D’s interview, less than one page into the transcript where the officer says:
‘Okay I think that’s about it for me isn’t it we’ve done the intros. So obviously we know why you’re here today about what we’re going to talk to you about, yes, and I think it’s something you told [foster carer]. Okay can you just tell me, go from the start as much as you can about what’s been happening, do you remember what you told [foster carer], do you remember talking to her last week about something that had been happening with you and your brothers?’
D is unresponsive to this and similar requests, which then leads the interviewer to add:
‘[Foster carer] told us a little bit about what you said last week and it was to do with [Mr E’s first name given] and [incorrect name for A given], do you remember that now?’
This is but one example of the approach to questioning adopted by this interviewer throughout each of the three interviews.
26.	Mr Tyler took us to TW v A City Council [2011] EWCA Civ 17; [2011] 1 FLR 1597 in which this court was highly critical of the ABE process that had been undertaken in that case. At paragraph 52 Sir Nicholas Wall P said:
‘As we have already pointed out, the [ABE] 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 are left with the 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.’ [Emphasis in original]
27.	As I have already indicated, the interview with D was interrupted at that point for approximately one hour during which time the child was elsewhere in the police station. On returning to the interview room her demeanour is markedly different from the unresponsive presentation previously demonstrated. Again, no written record has been provided of what transpired during this interval. Mr Tyler submits that the judge should have permitted the police officer to be called to explain events during the missing hour. The only evidence available came from the foster carer who claimed that she said no more to D than “you need to say all the things while you are here, D”. 
28.	Finally, in respect of the ABE process, Mr Tyler argues that the ABE interviews were not undertaken at the earliest opportunity and that the content of them may have been compromised by the fact that the three children had gone away with the foster carer for some days after they had made their original allegations to her and before the ABE interviews took place. 
29.	Understandably, the points that are now raised were argued before the judge. In paragraph 38 of her judgment the judge noted that the “truth and lies” exploration had taken place as part of a period of preliminary questioning which was not recorded. She held, however, that there was no suggestion that the children did not know the difference between truth and lies and that the cognitive assessments of each child did not indicate any level of learning disability. At paragraph 39 the judge accepted that interviews with children should normally be recorded on video and, if not, the next best record of the process should be prepared in writing with “contemporaneous note of the essential parts”. She also held that it was desirable that interviews with young children should be conducted as soon as possible after any allegations are first made. She noted that the court will want to see responses from the child which are neither forced nor led. Having set out those parameters the judge concluded, at paragraph 40:
“In my judgment, the evidence from the children met those conditions in that the interviews were conducted promptly and were recorded. The foster carer had taken the children away on a pre-booked holiday but the children were interviewed on their return.”
30.	The judge accepted that the only “prompting” offered to D during the one hour interlude was that described by the foster carer namely, to tell all while she was at the police station. 
31.	Although not formally part of the ABE interviews themselves, Mr Tyler also submits that the judge should have been extremely concerned that the same police officer had subsequently visited the three children to conduct a ‘fast-track’ interview with them. The concept of a ‘fast-track’ interview involving child complainants in a sexual abuse inquiry has not been encountered before by any of the very experienced counsel in this appeal or by any of the members of the court. Brief notes of the fast-track interviews are contained in the police computer log. B had compiled a handwritten note following his ABE interview and the officer ‘went through’ each point in the note with him, subsequently making a brief summary record on the computer log of what B may have said. Such a process is wholly at odds with the ABE guidance. The record contains the officer’s subjective summary of what the child may have said in response to direct questioning. There is no record of the questions that were asked or of the child’s actual responses. With C the officer ‘went through what C had disclosed to [the foster carer]’; again there is simply a short summary made by the officer of what C may have said.
32.	Mr Tyler’s case is that the fact that the ‘fast-track’ interview took place, without any apparent regard for due process or the potential effect on the ability of the evidence of any of these children to be relied upon in any subsequent criminal proceedings, indicates a need for great caution in placing any reliance on the validity of the earlier process conducted by the same officer(s). 
33.	On the second day of the hearing counsel for Mr E applied to have the interviewing officer called to give oral evidence to deal with the missing hour in D’s interview and the ‘fast-track’ interviews. That application was refused by the judge on the ground that it was too late to make such a request.
34.	Responding to the appeal, Miss Elizabeth McGrath QC, leading Miss Martine Kushner who appeared before the judge, submitted that the judge was alive to each of the criticisms now made about the ABE process and that she took these potential deficits into account before concluding, as Ms McGrath submits she was entitled to do, that the children’s answers during the substantive part of each interview were nevertheless reliable. 
ABE Interview process: discussion
35.	We have not viewed the DVD recordings. It is not my purpose to deliver a verdict, one way or the other, on the question of whether or not the undoubted flaws in the ABE exercise undertaken with these three children are so fundamental as to render the resulting interviews wholly unreliable; that determination will be a matter for the trial judge if these issues have to be re-tried.
36.	However, Mr Tyler has succeeded in demonstrating the following significant departures from recognised good practice by those undertaking the ABE interviews:
a)	The introduction and ‘truth and lies’ aspects of Phase One were not undertaken on camera. There is no note or other record of what was said to each child, and the circumstances in which it was said, prior to entering the video suite.
b)	No note was kept of what transpired with D in the police station during the hour that she was out of the interview room.
c)	The children were subsequently seen at their home by the interviewing officer for a process of fast-track questioning.
d)	The short summary note of what each child may have said during the fast track process is wholly inadequate.
e)	More generally, contrary to ordinary practice where, we were told, a formal pro-forma is prepared, no written record was available at all from the police of the ABE process.
f)	As the officer conducting the interviews was not called to give evidence, the court did not have any account of these matters (other than that of the foster carer with respect to the missing hour during D’s interview).
g)	The questioning by the officers at significant stages in all three interviews was on all fours with that which was roundly criticised by this court in TW v A City Council and was a clear attempt simply to have the children repeat on camera what they may have said to their foster carer. Leading questions were used and key elements of the narrative, for example the names of the alleged abusers, were introduced by the interviewers.
37.	Insofar as the judge referred to these matters at all, she dismissed them as matters of concern and held that the interviews met the conditions required by the ABE guidance. I am clear that such a conclusion was simply not open to the judge. The departures from the ABE guidance required the judge to engage with a thorough analysis of the process in order to evaluate whether any of the allegations that the children made to the police could be relied upon. I do not intend to deal with each of the individual points that are raised, but the following matters do call for specific mention.
38.	The judge’s acceptance of the fact that the Phase One stage of each interview took place off camera on the basis that there was no suggestion that the children did not know the difference between truth and lies, with respect, misses the point. It is, or may be, important for the court to know everything that was said between an interviewing officer and a child in any case. In this case, given the extensive use of leading questions to the children during the taped part of the interviews and the unorthodox ‘fast-track’ procedure that was subsequently undertaken, there were real grounds for concern as to what may have been said to the children by this officer before they entered the video suite. The judge had to engage with that issue before being able to move to a conclusion on the overall reliability of the ABE material.
39.	The absence of information as to the Phase One process, the need to understand from the police officers what, if anything, they had said to D during her one hour absence and the need to understand in greater detail than the computer log provided what occurred during the fast-track interviews, made it necessary, in my view, for the police officer to be called. In the context of an 8 day hearing, the judge’s refusal of the application to call the officer on the basis that it was too late was, on the information given to this court, wrong in the absence of clear evidence that it would not be possible to call the officer at some stage in the hearing (either in person or over a video or telephone link).
40.	The judge made no reference to the ‘fast-track’ interviews in her judgment. Whilst there is no suggestion that the judge relied on what is recorded as having been said by the children on that occasion, the fact that the officer had undertaken this unorthodox procedure was nevertheless relevant to the overall evaluation of the quality of the ABE process as a whole. The judge was, in my view, in error in not bringing this element into her analysis before concluding whether or not what the children were recorded as saying could be relied upon in support of the factual allegations.
The children’s evidence
41.	The conclusion that I have reached to the effect that it was not open to the judge to hold that the ABE interview material was reliable in the absence of a full and thorough evaluation of the potential impact of the numerous breaches of procedure, renders it unnecessary to undertake a full description of the various criticisms that Mr Tyler makes of the judge’s evaluation of the children’s evidence. The key matters raised are, however, important and are as follows:
a)	The judgment opens, after four short introductory paragraphs, with the judge’s summary of the ABE interviews of each child. These summaries, which are not set into any context and are not preceded by any account of what the children are reported as having said when the allegations were initially made to the foster carer, elide description with selective evaluation and then findings.
b)	No consideration is given to the potential for the manner in which the allegations were first made to impact upon the reliability of what was subsequently said by the children.
c)	In the absence of any direct corroborating evidence, the judge failed to evaluate the various factors which militated against the truth of the allegations.
d)	There is a failure to take account of the fact that C had twice made, and later withdrawn, false allegations of sexual abuse against other individuals.
e)	The judge wrongly reached the conclusion that the evidence of each child corroborated that of the others. There was inadequate analysis of inconsistencies in the accounts, both internally for each child and between the three children.
42.	Although I consider that there is some validity in each of the grounds of challenge that Mr Tyler has raised, the most significant, in my view, is the first relating to the judge’s analysis of the content of the ABE interviews and the last relating to inconsistencies. I do not propose to say anything more as to the content of the ABE material and I will deal with the point about inconsistency very shortly. 
43.	Mr Tyler’s skeleton argument plainly establishes the following propositions on the available evidence:
i)	each child gave a different account to that given by his or her siblings;
ii)	each child made a number of significant factual allegations to the foster carer which were not repeated in their ABE interviews; and
iii)	B effectively made no allegations of sexual abuse in his ABE interview.
44.	The judge’s approach to inconsistencies is seen at paragraph 16 of the judgment:
‘D’s account is different from her brothers. There are inconsistencies in the accounts between the three children which is said undermines the veracity of the accounts but the very same inconsistencies are also evidence that the children have not colluded or rehearsed their evidence. I am satisfied that this is not a prepared script. 
	Later, at paragraph 28, she states:
‘There is consistency from all three in the ABE interviews, which, although different, each corroborate different aspects of the primary disclosure.’
Finally, in response to a request for clarification after the draft judgment had been circulated, the judge added:
‘The inconsistencies in the children’s ABE interviews are addressed.’
45.	I am afraid that I consider that the judge’s approach to the many inconsistencies within the children’s accounts falls well short of the level of analysis that this evidence required. Without descending to detail, three short points can be made. Firstly, whilst it is correct that the inconsistencies did not demonstrate that the children were trotting out a script, that observation could not, at a stroke and without more, obviate the need for the judge to evaluate the inconsistencies in more detail. Secondly, it is simply not possible to hold that each child giving a different account in his or her ABE interview in some manner corroborates the account given by one or both of the others. As the judge observed, D’s account in her ABE interview was different to her brothers. B’s ABE interview was effectively devoid of any positive allegation being made at all by him. That is not corroboration. Thirdly, this broad brush and superficial approach to the inconsistencies was carried forward by the judge when making her detailed findings which include a number of specific allegations which were only made by one of the children on one occasion and neither repeated by them subsequently nor supported by a similar account from either of the other two children.
Calling the children to give evidence
46.	As is well known, children, even children of a very young age, who have made allegations of abuse which are subsequently the subject of criminal proceedings, are required to give live evidence within the criminal process. It is understood that some 40,000 do so during the course of each year. The child will typically be protected from full exposure to the court room by the use of special measures, for example, answering questions over a live video link. Conversely, for many years the practice and culture in family proceedings was that such children, even if aged in their late teens, would never be required to give live evidence in the Family Court. 
47.	The issue of children giving live evidence in family proceedings was considered in depth in the Supreme Court in the case of Re W (above). The Supreme Court held that the practice and culture of the Family Court that had hitherto applied, which amounted to a presumption against a child giving evidence, could not be justified and should be replaced by the court undertaking a bespoke evaluation in each case on the question of whether a complainant child should or should not be called to give live evidence. Baroness Hale JSC gave the judgment of the court. The following key passages are of importance:
“22. However tempting it may be to leave the issue until it has received the expert scrutiny of a multi-disciplinary committee, we are satisfied that we cannot do so. The existing law erects a presumption against a child giving evidence which requires to be rebutted by anyone seeking to put questions to the child. That cannot be reconciled with the approach of the European Court of Human Rights, which always aims to strike a fair balance between competing Convention rights. Article 6 requires that the proceedings overall be fair and this normally entails an opportunity to challenge the evidence presented by the other side. But even in criminal proceedings account must be taken of the article 8 rights of the perceived victim: see SN v Sweden [2002] 39 EHRR 304. Striking that balance in care proceedings may well mean that the child should not be called to give evidence in the great majority of cases, but that is a result and not a presumption or even a starting point.”
		…
“24. When the court is considering whether a particular child should be called as a witness, the court will have to weigh two considerations: the advantages that that will bring to the determination of the truth and the damage it may do to the welfare of this or any other child. A fair trial is a trial which is fair in the light of the issues which have to be decided. Mr Geekie accepts that the welfare of the child is also a relevant consideration, albeit not the paramount consideration in this respect. He is right to do so, because the object of the proceedings is to promote the welfare of this and other children. The hearing cannot be fair to them unless their interests are given greater weight.
25. In weighing the advantages that calling the child to give evidence may bring to the fair and accurate determination of the case, the court will have to look at several factors. One will be the issues it has to decide in order properly to determine the case. Sometimes it may be possible to decide the case without making findings on particular allegations. Another will be the quality of the evidence it already has. Sometimes there may be enough evidence to make the findings needed whether or not the child is cross-examined. Sometimes there will be nothing useful to be gained from the child’s oral evidence. The case is built upon a web of behaviour, drawings, stray remarks, injuries and the like, and not upon concrete allegations voiced by the child. The quality of any ABE interview will also be an important factor, as will be the nature of any challenge which the party may wish to make. The court is unlikely to be helped by generalised accusations of lying, or by a fishing expedition in which the child is taken slowly through the story yet again in the hope that something will turn up, or by a cross examination which is designed to intimidate the child and pave the way for accusations of inconsistency in a future criminal trial. On the other hand, focussed questions which put forward a different explanation for certain events may help the court to do justice between the parties. Also relevant will be the age and maturity of the child and the length of time since the events in question, for these will have a bearing on whether an account now can be as reliable as a near-contemporaneous account, especially if given in a well-conducted ABE interview.
26. The age and maturity of the child, along with the length of time since the events in question, will also be relevant to the second part of the inquiry, which is the risk of harm to the child. Further specific factors may be the support which the child has from family or other sources, or the lack of it, the child’s own wishes and feelings about giving evidence, and the views of the child’s guardian and, where appropriate, those with parental responsibility. We endorse the view that an unwilling child should rarely, if ever, be obliged to give evidence. The risk of further delay to the proceedings is also a factor: there is a general principle that delay in determining any question about a child’s upbringing is likely to prejudice his welfare see Children Act 1989, s 1(2). There may also be specific risks of harm to this particular child. Where there are parallel criminal proceedings, the likelihood of the child having to give evidence twice may increase the risk of harm. The parent may be seeking to put his child through this ordeal in order to strengthen his hand in the criminal proceedings rather than to enable the family court to get at the truth. On the other hand, as the family court has to give less weight to the evidence of a child because she has not been called, then that may be damaging too. However, the court is entitled to have regard to the general evidence of the harm which giving evidence may do to children, as well as to any features which are particular to this child and this case. That risk of harm is an ever-present feature to which, on the present evidence, the court must give great weight. The risk, and therefore the weight, may vary from case to case, but the court must always take it into account and does not need expert evidence in order to do so.

27. But on both sides of the equation, the court must factor in what steps can be taken to improve the quality of the child’s evidence and at the same time to decrease the risk of harm to the child. These two aims are not in opposition to one another. The whole premise of Achieving Best Evidence and the special measures in criminal cases is that this will improve rather than diminish the quality of the evidence to the court. It does not assume that the most reliable account of any incident is one made from recollection months or years later in the stressful conditions of a courtroom. Nor does it assume that an “Old Bailey style” cross examination is the best way of testing that evidence. It may be the best way of casting doubt upon it in the eyes of a jury but that is another matter. A family court would have to be astute both to protect the child from the harmful and destructive effects of questioning and also to evaluate the answers in the light of the child’s stage of development.

28. The family court will have to be realistic in evaluating how effective it can be in maximising the advantage while minimising the harm. There are things that the court can do but they are not things that it is used to doing at present. It is not limited by the usual courtroom procedures or to applying the special measures by analogy. The important thing is that the questions which challenge the child’s account are fairly put to the child so that she can answer them, not that counsel should be able to question her directly. One possibility is an early video’d cross examination as proposed by Pigot. Another is cross-examination via video link. But another is putting the required questions to her through an intermediary. This could be the court itself, as would be common in continental Europe and used to be much more common than it is now in the courts of this country.”
48.	I make no apology for quoting so extensively from Baroness Hale’s judgment, which would seem to have gone unheeded in the five or more years since it was given. The need to give appropriate consideration to a child giving evidence in a case where that issue arises will soon be given further endorsement by amendments to the FPR 2010 and Practice Directions in accordance with recommendations from the President’s working group on children and other vulnerable witnesses. In the meantime the decision in this case should serve as a firm reminder to the judiciary and to the profession of the need to engage fully with all that is required by Re W and the Guidelines.
49.	The question of whether or not any of the children should be called to give live evidence was considered by the judge at the IRH on 3rd November 2015. Prior to that hearing Ms Steele, on behalf of the Appellant, had filed a six page position statement in support of the formal Re W application that had been made on behalf of her client. In her document Ms Steele makes detailed submissions relating to the evidence in these proceedings under the various headings identified by Baroness Hale in Re W and supplemented by guidelines issued by the Family Justice Council Working Party on Children Giving Evidence (set out at [2012] Family Law 79). 
50.	The transcript of the hearing on 3rd November 2015 did not become available to the court and the parties until the morning of the oral hearing of this appeal. Prior to that stage each party had referred to the judge giving a very brief judgment prior to dismissing the Re W application. The transcript, however, shows that, in fact, no judgment of any sort was given by the judge on that day. During the course of the ordinary business of the IRH the judge made the following references to the topic:
“[the presence in court of the Guardians in the F Children’s case during the fact finding hearing would enable the Guardians/court]… to keep under review whether or not, for example, if I decided against hearing the evidence from the children, I do not know whether I will or not, I have not decided that, but that might be something which will need to be kept under review, because it is possible that the way the evidence comes out suddenly an issue becomes very, very clear which needs to be resolved factually and it would be therefore helpful to the Court, if the Guardians relevant to all the children were able to give guidance, help, recommendations in respect of whether or not I should for example revisit the decision that I made earlier.” (Transcript page 7).
“Well I think at some point a determination is going to have to be made in respect of the evidence of the children and it is probably better to do that in isolation at an earlier stage…”
Ms Steele relied upon the detailed submissions made in the context of Re W in her position statement. The transcript then continues:
“JUDGE WATSON: Well Ms Steele I am very pleased to see how you have set out it. You have set it out very clearly the concerns and the difficulties and indeed the contradiction in terms of the evidence. What I am struggling to see is how calling the children is actually going to improve his position. All of these matters can be dealt with in a written position statement as you have done, in oral submissions, because the one question that you cannot put to the child witnesses, is, ‘You’re lying aren’t you’. 
MS STEELE: I accept that. However, the Local Authority are reliant on the evidence given to a number of different sources of the truthfulness of that.
JUDGE WATSON: Yes.
MS STEELE: My client or me on my client’s behalf have to be able to, in my submission, not put to them that they’re lying but be given the opportunity to put to them the contradictions in their evidence. 
JUDGE WATSON: Well I would not allow you to put the contradictions. You have got to bear in mind the age of the children‑
MS STEELE: I of course‑
JUDGE WATSON: ‑and their ability to deal with that sort of complex questioning. It is, the type of questioning which the, I am sure you are very familiar with the advocates tool kits and the gateway rules that apply in criminal proceedings that would apply in a case like this, and they set it out very clearly. I have just, for my own benefit, just summarised them as no repetitive questions, short questioning, no need to put the case, no tag questions, no comments. So all of the matters which you have properly put out, set out in this [inaudible], could not be put to the child witnesses.
MS STEELE: What, my understanding is that of course I can try and clarify the evidence they have given. Yes, I can’t put certain things and I fully accept that but I can put to them certain inconsistencies or certainly ask them to clarify which they say is correct. That kind of thing. Excuse me. 
JUDGE WATSON: Well and to what end that you have confused the witnesses, that is not going to help the Court in deciding where the veracity in truth is. The truth is by looking at the careful submissions that you have made and weighing those into the balance. I do not necessarily have to accept what a child says on an ABE interview.
MS STEELE: No.
JUDGE WATSON: I need to look robustly at what is said in the light of all the other evidence that I hear.
MS STEELE: My Lady I don’t think there’s very much else that I can add‑
JUDGE WATSON: No.
MS STEELE: ‑with what I’ve already said in there and what I’ve said to you.
JUDGE WATSON: Yes.
MS STEELE: There’s really nothing else I can add.
JUDGE WATSON: No.
MS STEELE: Unless you would like me to attempt to‑
JUDGE WATSON: No, I, you have set it out extremely fully and I have very much in mind the need for a fair hearing but unlike in criminal proceedings, where the, it is assumed that children will give evidence. They give their evidence in a very, very truncated way and for example the ABE interview only such elements as are agreed are put before the jury. Whereas I will see the entirety of the ABE, I will see it warts and all if I can use that expression. So I will be much more susceptible to any suggestion that there are contradictions that are unclear, that it is [inaudible], I do not need that to be put to a seven year old or a nine year old or indeed a 14 year old who has the difficulties that B has.”
The only other reference in the transcript appears some six pages later where the judge states:
“At this stage I am not agreeing that the children should give evidence. I am very alive to the need for a fair hearing and I will ensure that there is a fair hearing but … I cannot see that cross-examining the children would actually benefit the forensic process in terms of … the evidence of the children.”
51.	The only reference to Re W in the judge’s final judgment appears in the opening paragraphs where she states:
“I determined at an earlier Re W hearing that the children should not be required to give evidence and it has not been necessary to re-visit that decision.”
52.	Having considered the transcript of the hearing of 3rd November, Mr Tyler made the following submissions:
a)	The judge had not viewed the ABE interviews prior to the IRH  and she was therefore not in a position to form a concluded view upon the issue of oral evidence from the children;
b)	Despite the detailed submissions made by Ms Steele referring specifically to the various elements identified by Baroness Hale, the judge made no reference to those submissions (save to acknowledge their existence) and did not refer to Re W at all during the hearing;
c)	In the circumstances the judge’s consideration of the important question of the children giving evidence was wholly inadequate and could not be supported. 
53.	Standing back from the details of this specific case, Mr Tyler submitted that in any case the question of children giving live evidence should only be considered once the judge has viewed the ABE material. He suggested that it may be good practice for a judge to identify at an early stage whether he or she would attach weight to the ABE interviews if they stood alone. He told the court that, in his experience, the culture of the Family Court with respect to oral evidence from children was really unchanged from the position that had existed prior to the Supreme Court decision in Re W. Mr Tyler readily accepted a suggestion made by Macur LJ to the effect that a child’s welfare may in fact require a determination in favour of them giving evidence, notwithstanding any immediate adverse impact on the child from the process of coming to court, where the future placement of the child could depend upon findings of fact to which his or her oral evidence might relate.
54.	Although not strictly relevant to her client’s case, Ms Lorna Meyer QC, representing A, assisted the court by submitting that, where the issue of oral evidence from a child is raised, thought should be given at that stage to any alternative process of engagement with the child short of physical attendance at court. For example questions might be drawn up by the court and the parties which are then put to the child in a neutral setting which is recorded on video.
55.	In responding to the appeal on behalf of the local authority, Ms McGrath submitted that the judge stated that she would keep the Re W issue under review and there is no indication that she did not do so. Equally, Ms McGrath relies upon the fact that the Re W application was not renewed by either of the parents after 3rd November. Ms McGrath, however, accepted the court’s suggestion that once the final hearing started it was simply too late to consider calling the children at such short, or even no, notice. Ms McGrath accepted that the Re W issue needed to be grappled with at an early, pre-trial, stage. Save for those short submissions there was nothing that Ms McGrath could submit in support of the judge’s decision on this point. 
Children giving evidence: discussion
56.	It is of note that, despite the passage of some six years since the Supreme Court decision in Re W, this court has been told that the previous culture and practice of the family courts remains largely unchanged with the previous presumption against children giving evidence remaining intact. That state of affairs is plainly contrary to the binding decision of the Supreme Court which was that such a presumption is contrary to Article 6 of the European Convention on Human Rights.
57.	In any case where the issue of children giving oral evidence is raised it is necessary for the court to engage with the factors identified by Baroness Hale in Re W, together with any other factors that are relevant to the particular child or the individual case, before coming to a reasoned and considered conclusion on the issue. 
58.	It is crucial that any issue as to a child giving evidence is raised and determined at the earliest stage, and in any event well before the planned trial date. The court will not, however, be in a position to come to a conclusion on that issue unless it has undertaken an evaluation of the evidence which is otherwise available. Where there has been an ABE interview, and the quality and/or content of that interview are to be challenged, it is likely that the judge will have to view the DVD before being in a position to decide the Re W issue.
59.	The court should also have regard to the Working Party of the Family Justice Council Guidelines on the issue of Children Giving Evidence in Family Proceedings issued in December 2011 [2012] Fam Law 79. The Guidelines, which were specifically developed to assist courts following the decision in Re W, contain a list of no less than 21 factors to which the court should have regard when determining whether a child should give oral evidence in the context of the principal objective of achieving a fair trial [paragraph 9(a) to (v)]. The Guidelines require the court to carry out a balancing exercise ‘between the following primary considerations:
i)	the possible advantages that the child being called will bring to the determination of truth balanced against;
ii)	the possible damage to the child’s welfare from giving evidence i.e. the risk of harm to the child from giving evidence.’
60.	Whilst not all of the elements described by Baroness Hale in Re W or in paragraph 9 of the Guidelines will be relevant in every case, it is plain that the court undertaking a Re W determination will need to engage in a relatively full and sophisticated evaluation of the relevant factors; simply paying lip-service to Re W is not acceptable. By ‘full’ I do not wish to suggest that a lengthy judgment is required, but simply that the judge must consider each of the relevant points with that  process recorded in short-form in a judgment. Such a detailed process is in my view justified given the importance of the decision for the welfare of the child and for the fairness of hearing.
61.	It is plainly good practice for the court to be furnished with a written report from the children’s guardian and submissions on behalf of the child before deciding whether that child should be called as a witness. This court understands that it is, however, common-place for guardians to advise that the child should not be called to give evidence on the basis that they will or may suffer emotional harm as a result of doing so. Where such advice is based upon the consideration of harm alone, it is unlikely to be of great assistance to the court which is required to consider not only ‘harm’ but also the other side of the balance described in the Guidelines, namely the possible advantages that the child’s testimony will bring to the determination of truth.
62.	Part of any consideration of the overall welfare of a child must be that decisions as to his or her future, or the future of other children, are based, so far as is possible, upon a true understanding of important past events. Whilst the process of giving oral evidence in relation to allegations of past harmful experiences will almost always be an unwelcome one for any child, and for some that process itself may be positively harmful, those negative factors, to which full and proper weight should be given, are but one half of the balancing equation. In some cases, despite the negative factors, it may nevertheless be in accordance with the wider welfare interests of the child for him or her to be called to give evidence. Each case will be different, but even where the child may suffer some emotional harm from the process, if such harm is likely to be temporary and where the quality and potential reliability of the other evidence in the case is weak, it may (in addition to any fair trial issues) nevertheless be in the child’s best interests to give oral evidence. If the ABE interview process is poor, and there is little or no other evidence, then it may be that no findings of fact in accordance with allegations made by a child can properly be made unless the child is called to give evidence. The Re W exercise must plainly take account of such a situation.
63.	The observations made in the previous paragraph are intended only to make the point there made; they are not intended to establish any new test or template for decision making over and above what is said in Re W and the Guidelines to which recourse should be had as a matter of routine in every case where there is a Re W application.
64.	Turning to the present appeal, it is unfortunately plain that the consideration given to the Appellant’s Re W application by the judge fell well short of what was required. I have set out the relevant passages from the transcript in full (paragraph 50 above). No formal judgment was given. At no stage in the hearing did the judge even refer to the factors set out by Baroness Hale in Re W or to those listed in the Guidelines.
65.	It is of concern that the judge suggested, during submissions, that the court, assisted by the guardians, would keep the issue of oral evidence under review during the main hearing itself. The question of whether or not a child is to give oral evidence should be determined well in advance of the hearing at which she or he may be called. To contemplate deciding, at a later stage and once the hearing itself has started, to call them is likely to increase the potential for the process to impact upon the child in a harmful manner and would allow little or no time to prepare the child and those caring for them.
66.	It is apparent from the transcript and from the fact that the first day of the main hearing was spent in viewing the ABE material, that the judge had not viewed the videos prior to determining the Re W application on 3rd November. Although it may onerous to do so, it is necessary, before reaching a conclusion on an application for children to be called, for the court to gain a considered view as to the strength of the existing evidence. Sub-paragraphs 9(f) to (j) are plain on this point and require to the court to have regard to:
‘(f) whether the case depends on the child’s allegations alone;
(g) corroborative evidence;
(h) the quality and reliability of the existing evidence;
(i) the quality and reliability of any ABE interview.’
67.	This case did depend upon the children’s allegations alone. An extensive police investigation had failed to produce any supporting evidence. There was no corroborative evidence (outside of the ability of the evidence of one child to support another). For the reasons already given, the quality and reliability of the ABE interview process was badly compromised.
68.	The four factors to which I have referred are but part of the overall picture. It is not necessary for the purposes of this appeal to hold that the judge should or should not have required one or more of the children to give oral evidence. It is sufficient to hold, as I have done, that the Re W analysis undertaken by the judge was wholly inadequate. Given the substantial concern over the integrity of the ABE evidence, and indeed in any event, this was a substantial material error in the trial process and, of itself, requires the process in the lower court to be set aside on the basis that there has been a breach of the Art 6 rights of the parties, including those of the children.
Child A: victim/perpetrator/party
69.	The child A, who is now aged 15 years, has been assessed as having a ‘borderline to low average’ ability in most areas of functioning, but with an ‘extremely low to low average’ ability to process information that is given to him. Well over 90% of the normal population would perform better than he does at most intellectual tasks.
70.	Child A has been represented by a CAFCASS guardian and a solicitor throughout the proceedings; neither of them assess him as being capable of instructing his solicitor directly in the proceedings.
71.	A has never made any allegation of sexual abuse against his father or of being incited or encouraged by his father to abuse others. He did not admit that he had himself committed any act of sexual abuse on others. On 29th May 2015 he was interviewed by the police. This was not an ABE interview, but an interview under caution which took place after he had been arrested on suspicion of having committed rape. The interview lasted for one hour. A engaged with the process throughout by answering factual questions. When sexual allegations were put to him he was clear and plain in his complete denial of being involved in any sexual behaviour. An audio recording of this interview is apparently available, but no party invited the judge to listen to it.
72.	On 27th October A’s social worker visited him in order to ascertain his ‘wishes and feelings in respect of the upcoming fact finding hearing’. The social worker’s statement records that A asked what a fact finding hearing was and that she explained that the allegations that had been made against him and his parents would be put to the judge, along with other matters that concerned the local authority. She states, ‘A nodded as I spoke, suggesting that he understood’. He was then told that the judge would consider the evidence and make a decision on the likelihood of the allegations being true or not. A’s question following this explanation was about the options for his placement in the event that the allegations were found proved or not proved. The social worker records that when she explained that if no facts were proved she would work with A and his parents to determine how best to move him back home at a pace that he was comfortable with, ‘again A acknowledged this and nodded as I spoke’.
73.	The social worker went on to record that she discussed the allegations that had been made against A and that throughout this discussion he maintained eye contact with her and had open body language. When she explained to A that, with regard to allegations made by D against him, there were only two people who are aware of what, if anything, took place, ‘A nodded at this statement, however did not offer any discussion around this.’ When the social worker asked if A had ever seen behaviour such as that which had been alleged, A’s body language was said to change in that he responded with short answers and began to fidget with his hands, he was, however, still engaging with the conversation. A worker from the unit then joined the conversation and, after trying to explain to A what ‘learned behaviour’ was, he asked A if ‘there was anything he wanted to share at this point’ to which A replied ‘not right now’. When asked whether he might do so later, A said ‘yes, I think so’.
74.	On the 2nd November 2015 A’s CAFCASS guardian and his solicitor visited him in the unit in which he is now accommodated. On the day following the visit HHJ Watson made an order requiring the guardian to file a statement setting out what had occurred during that visit. The guardian complied with that direction by filing a statement on 8th November in which she described meeting A (together with his solicitor and a worker from the unit, ‘G’). A was told by his solicitor that the purpose of the visit was to meet him in order to go through the evidence that had been filed against him. It is not clear whether or not A was told that the meeting was or was not confidential on the usual solicitor/client basis. The statement describes A being given a broad description of the material that had been filed with the court and it records that A either remained silent or gave monosyllabic answers to any questions put to him.
75.	The statement goes on to state that the solicitor explained to A that only A knew if anything sexual had happened involving him and that the solicitor and guardian needed a ‘steer’ from A as to whether there had been anything sexually inappropriate which had happened to him in the past or not. A did not respond to this request and the statement describes time passing with breaks for tea and others matters being discussed before continuing:
“I then suggested that A had a further break and suggested a simple YES (indicating there had been sexually inappropriate behaviour involving A) or NO (there had not). I wrote the two words on a piece of A4 paper and left the room.
When I returned A and G had gone for a further break. They later returned with the A4 paper folded in half. On opening the paper, the word YES was ticked. …
G then explained that A sat with him on a bench outside during the break. G felt that A was so tense that he was physically unable to take the pen and make the mark himself. G held the pen above one answer and then the other and asked A which answer A wanted G to tick. A indicated YES and G ticked it.
[Solicitor] and I did not question A or G further. G stated he would inform A’s key worker when he took over at 3pm.
I was aware that A’s information would be disclosed to his parents on 3.11.15. A was due to have contact on 5.11.15. I agreed to phone the unit later to inform them that Mr and Mrs E will be aware of events following court on 3.11.15. …”
76.	On 2nd December A undertook a further rudimentary process with the key worker at his residential unit who saw A at A’s own request and in which A indicated that some form of bad behaviour in the past had occurred with an ‘uncle’ at the home of another family member.
77.	When reading the account of the three occasions in October, November and December when these matters were raised with, or by, A, it is important to have in mind information which only became apparent subsequently either during or immediately before the main hearing. The information, which came from A’s parents, was that in 2011 A had complained to them that he had been sexually abused by two of his uncles. The judge went on to find that such abuse probably did take place. On the evidence, therefore, it was necessary to consider whether A’s presentation at each of those three occasions with the social worker, guardian and then G could be explained fully by reference to this earlier abusive behaviour from A’s uncles, or whether some or all of it could only relate to the more recent allegations.
78.	The judge first dealt with matters relating to A at paragraphs 30 to 34 of her judgment which includes the following:
“It is argued on behalf of A through his children’s guardian that his Article 6 rights have been infringed by this process because the particularisation of the threshold invites findings to be made against A as a perpetrator of abuse against the other children, it being suggested that this is inappropriate because he has had no opportunity to give instructions on these allegations. I do not accept that is correct. In family proceedings the court is making findings on the balance of probabilities in relation to a whole raft of evidence, which in this case derives from … [summary of sources of evidence] …and, so far as A is concerned, some direct work undertaken with him by his guardian and his support workers at the residential unit where he resides.
31. [description of cognitive assessments and that A was physically sick during his police interview].
32. I accept unreservedly the evidence of [A’s guardian], an experienced guardian, that A appeared tense and exhausted when being called upon to give a steer as to whether anything sexually inappropriate had happened to him in the past or not. … [description of A during meeting with guardian and solicitor at the unit] … A has not wished to give evidence. No application for an adjournment was requested to enable this to happen. He has the benefit of a guardian and a solicitor and legal representation throughout the proceedings to ensure that the evidence is properly challenged.
33. I do not understand how his Article 6 rights have been in any way compromised by the greater particularisation of the threshold. This process does not change the evidence in any way. It is simply the means by which the local authority, as directed by the court, has marshalled its evidence. …”
79.	Later, at paragraphs 41 to 47, under a heading ‘Other evidence A’ the judge records a number points, which I now directly quote or summarise as follows:
a)	‘within the family proceedings, A has never denied the allegations. What he has said is informative to my decision’;
b)	when the social worker informed him about the fact finding hearing ‘he neither contradicted her nor sought to challenge what said against his father or himself’;
c)	he does not want to leave the residential unit and has said that this is because he feels safe there because of the staff;
d)	‘he gave a clear affirmative to the question that there had been inappropriate sexual behaviour involving himself’;
e)	he has never sought to correct or challenge the allegations, which he knows about, during any discussion with his key worker at the unit;
f)	in 2011, when aged 10, A ‘disclosed’ to his parents that he had been sexually abused by two of his uncles; A did not want the police involved and the parents took no action; the judge found that ‘in all probability, A has been exposed to inappropriate behaviours by his two uncles within the family, and his parents failed to act in a protective way’;
g)	on 2nd September A was ‘able to tell his key worker that what happened with the family members was bad. It happened more than once, that it had happened in another family member’s home, and it made him feel not good’ (It is to be noted that the judgment incorrectly sets this date as 2nd September rather than 2nd December).
80.	In this section of the judgment dealing with A’s evidence there is no reference to A’s police interview, but the judge did consider that evidence at paragraphs 76 and 77. The judge describes A’s answers as monosyllabic ‘yes’ or ‘no’. The judge noted that ‘the contrast with the approach adopted by the two key-workers and the children’s guardian and the difficulty A had in articulating his response is very marked indeed.’
81.	The judge was critical of the style of interviewing adopted by the police which, in her opinion, caused A to choose a defensive style of saying ‘no’, even to questions where the answer was clearly the opposite. She gives as an example A saying ‘no’ to a question ‘did you spend much time at B’s house?’. In consequence of her overall view of the interview the judge held ‘I cannot place any reliance on that interview and I ignore it’.
82.	On my own reading of A’s police interview, I do not regard the judge’s description of it, or her consequent decision to ignore it, as being tenable. Contrary to the judge’s characterisation, whilst A does, I agree, give short negative answers when the allegations were put to him, he did however engage more fully by responding to factually based questions during much of the interview. On the specific issue of spending time at B’s home, in addition to the answer fixed upon by the judge, A said that he and B were ‘quite good mates’ [page H128] and that he used to go to stay at B’s house ‘on the weekends’ and also that B ‘used to come to my house’ [page H130].
83.	The judge’s conclusions as to A’s evidence [at paragraphs 78 to 80] are that the best evidence of ‘his position’ comes from his wish not to return home, but to stay in the residential unit until he is aged 18.
‘79. He has never sought to challenge the allegations made against his father or himself. He understands the case against him but offers no explanation, excuse or justification. He was very clear that he has personally has been involved with some sort of sexual abuse. It was bad and it involved family members and it made him feel “not good”.’
The judge then refers to A’s account in 2010/11 of being touched inappropriately by two of his uncles, before continuing:
‘A has not made an allegation against this father but the decision he has taken ensures that he does not, as a child, return to his father’s care. A has not sought to cut off all contact with his family but sees both his parents in a supervised session, the staff keeping him safe.’
84.	The judge’s ultimate finding with regard to A was that he was a victim of abuse who went on to become a perpetrator, albeit that he was acting ‘as taught, directed and orchestrated by his father’.
85.	Miss Lorna Meyer QC for A submits that, although A and B are effectively of identical age and both are said to have been involved in sexual activity with each other and the other two children, there has been a disparity of treatment within the proceedings and by the judge in that B has only ever been regarded as a victim whereas A is labelled as a perpetrator, albeit at his father’s direction.
86.	Although no Respondent’s Notice has been issued on behalf of A, Miss Meyer submits that, in any event, certain of the findings made with respect to A cannot stand. These include those relating to the dog, which is either a Staffordshire or American Pit-Bull Terrier that is described by police as ‘not a docile dog at all’ and who, according to the police log, kept the officers at bay when they visited the property. The judge found on the balance of probability that both Mr E and A anally penetrated this dog. Miss Meyer submits, to the contrary, that it is inherently unlikely that such behaviour occurred. Similar submissions are made with regard to sexual activity in a hotel or hotels and with respect to Mr E being involved in producing and selling child pornography.
87.	On behalf of Mrs E, Miss Hannah Markham QC submits that A’s voice was simply not heard effectively in the hearing and his Art 6 rights were ‘trampled upon’ as a result, partly, of the fact that the local authority only provided detail of the threshold findings that they sought to have made in relation to him at the start of the hearing and when there was no time to put these to A to obtain any form of instruction upon them.
88.	Miss Markham submits that the judge was wholly wrong to use A’s stated wish to remain in the residential unit as some form of admission of the allegations.
Child A: Discussion
89.	There are a number of aspects relating to A’s involvement in these proceedings and the findings that were made with respect to him which give rise to very real concern.
90.	The first relates to the professional responsibilities of A’s solicitor and guardian during the process of trying to obtain his instructions on the allegations that were to be made against him in the proceedings. A, as a party to the proceedings who is represented by his own solicitor, must be entitled to the same protection afforded to all other individuals who undertake communications with their lawyers. No suggestion was made in the hearing of this appeal that any different standard or approach should be taken to A either because he is a child or because he may lack the capacity to instruct his solicitor directly. The importance of legal professional privilege was plainly stated by Lord Taylor in the House of Lords decision of R v Derby Magistrates’ Court, ex parte B [1996] AC 487:
‘The principle which runs through all these cases, and the many other cases which were cited, is that a man must be able to consult his lawyer in confidence, since otherwise he might hold back half the truth. The client must be sure that what he tells his lawyer in confidence will never be revealed without his consent. Legal professional privilege is thus much more than an ordinary rule of evidence, limited in its application to the facts of a particular case. It is a fundamental condition on which the administration of justice as a whole rests.’
91.	The express purpose of A’s solicitor and guardian visiting him on 2nd November was to go through the evidence against him for the purposes of the forthcoming hearing. It is not apparent from the guardian’s statement or any other material that we have seen that the question of legal professional privilege was considered or discussed with A. The following day the fact that the visit had occurred was made known to the court and the judge directed the guardian to file a statement giving an account of it. There is no indication that that direction was contested or that the solicitor and guardian expressly purported to waive A’s legal professional privilege on his behalf. At the hearing of this appeal Miss Meyer did not argue that the issue had been addressed at all. The result was that the full details of A’s meeting with his solicitor to discuss these allegations, such as it was, became fully known to the court. In the event A had said very little of note during this meeting, but in another case the situation may be very different. It is obviously most important that, in the case of a vulnerable young person, those who are instructed to act on his behalf where he or she is facing serious factual allegations are utterly clear as to their professional responsibilities and astute to ensure that their young client’s rights are properly acknowledged and protected.
92.	The second matter of concern, which arises from the same visit, is the involvement of the key worker, G, in the process of gaining instructions from A. I have described how G became progressively more involved so that, in the end, he was alone with A and it was he who marked ‘YES’ on the paper drawn up by the guardian. The question of quite how it was appropriate for the key worker to be present at all during the process of taking A’s instructions, let alone taking over that process, was raised during the appeal hearing but it was not possible to know how the guardian would respond to the court’s preliminary view that it was wholly wrong for the guardian to allow such a process to take place in this manner and in her absence with no protection for A or his rights. 
93.	Be that as it may, there must be very grave doubt as to the evidential value of this whole procedure involving a vulnerable young person, with significant learning disability, being asked, according to the guardian’s statement to regard YES as ‘indicating there had been sexually inappropriate behaviour involving A’. What A might make of the phrase ‘sexually inappropriate behaviour’ is not known, nor is it clear how he might understand how such behaviour might ‘involve’ him. The matter becomes more concerning in the light of the fact that the same worker undertook a similar process one month later in which A had indicated that some form of bad behaviour had occurred with an uncle. Finally, the ability to rely upon the marking of YES as having any evidential value must further be compromised by the fact that the mark was not even made by A, but by the key worker who believed that he was doing so at A’s direction.
94.	The third area of concern goes to the heart of the judge’s findings insofar as she placed any positive reliance upon anything that A may have said in the lead up to the hearing. At paragraph 41 the judge observes that ‘what [A] has said is informative of my decision’. She does not, however, explain this observation in terms at that point and, in the paragraphs dealing with A that follow, there is a total absence of clarity, and indeed evidence of judicial confusion, over what A had said and how it related to the recent allegations of the other children.
95.	As the judge found, A had probably been the victim of sexual abuse at the hands of two uncles some five years earlier. There was therefore a need to distinguish with clarity between anything that A may have said with respect to that experience and anything that he may have said about the current allegations. The same applies to any attempt to interpret his behaviour and presentation. Unfortunately the judgment does not maintain any distinction between these two entirely different matters and, at times, the two are seemingly mixed together and the complaint about the uncles seems to be used to support the judge’s conclusion as to the truth of the recent allegations. The importance of this distinction is that it was plainly arguable, and I deliberately go no further than that in the context of this appeal, that the little that A had said or demonstrated by his demeanour could all be related to his experience of sexual abuse at the hands of his uncles.
96.	Given what A came to indicate on 2nd December as to ‘bad’ behaviour from an uncle or uncles, it was wholly insufficient for the judge simply to note, without further evaluation, the ‘clear affirmative’ that he gave ‘to the question that there had been inappropriate sexual behaviour involving himself’. There was a clear need for the judge to evaluate whether any reliance whatsoever could be placed upon the process, a month earlier, where A, in some manner, indicated to the key worker whether YES or NO should be ticked in reply to the guardian’s entirely general, yet sophisticated and potentially ambiguous question. That was so both in terms of that potentially flawed process itself and also in order to understand whether the blunt ticking of YES was indicative in any way of sexual behaviour unrelated to what he had experienced from his uncles in the past.
97.	The fourth area of concern relates to the judge’s approach to A’s Article 6 right to a fair trial. Whilst the judge may have been correct that the mere formulation of aspects of the existing evidence into a more detailed threshold document was not a breach of A’s rights under Article 6, her judgment does not engage with the processes adopted by the social worker, guardian and solicitor in the context of those rights. That this is so is not altogether the fault of the judge, as no party seems to have been aware of that aspect of the case during the hearing. Nevertheless the judge did make an order requiring a party’s representative to file a statement setting out what transpired at a meeting expressly established to elicit that party’s instructions to his lawyers on serious allegations of abuse. That is a significant and highly unusual order to make and, irrespective of the position of the parties, the judge ought to have questioned the basis of the proposed order and been aware of the need to protect A’s Art 6 rights and his entitlement to legal professional privilege.
Conclusion
98.	In conclusion, I am satisfied that this appeal must succeed on the following broad bases:
i)	The judgment wholly fails to acknowledge and then analyse the numerous and substantial deviations from good or acceptable practice which are evident at every stage of the police interaction with the three complainant children, both during the ABE interviews and by undertaking the ‘fast-track’ interviews thereafter.
ii)	The application for the police officer to be called to give oral evidence should not have been refused (unless, on investigation, it was impossible to call the officer at any stage and on any basis during the hearing).
iii)	The judge’s analysis of the children’s evidence is open to the valid criticisms made in support of the appeal. In particular the judge’s approach to, and use of, the inconsistencies within the evidence of the three children fell well short of what was required.
iv)	The judicial analysis of the formal and properly presented Re W application made by the appellant was so wholly inadequate and, in effect, simply was not undertaken. This, of itself, is an error of sufficient materiality to justify setting the fact finding decision aside.
v)	A’s right under ECHR, Article 6 to a fair trial and his right to the protection of legal professional privilege were breached to a substantial degree.
vi)	The judge’s analysis of the evidence of what A had said, together with his presentation, when being invited to address sexual matters was both confused and inadequate. There is a real risk that every aspect of what is recorded by the social worker, guardian and key worker in October, November and December 2015 relates entirely to his complaint of abuse by two uncles five years earlier. The potential for that to be the case was not taken into account by the judge and, in any event, the judge wrongly conflated evidence about that past abuse with the entirely separate recent allegations at a number of stages in her judgment.
99.	If my ladies agree, the inevitable result is that the appeal succeeds and each of the findings of fact must be set aside. It will be for the local authority, the other parties and the Family Court to consider whether there should be a retrial. I would leave that decision to the family court. If there is to be a re-hearing then it must follow that that is to be undertaken by a judge other than HHJ Watson.
Lady Justice Gloster:
100.	I agree that this appeal should be allowed for the reasons given by Lord Justice McFarlane.  I would, in particular, endorse his concerns about the inadequacy of the ABE interviews and the disregard of A’s Article 6 rights by those who were meant to be safeguarding his interests.
Lady Justice Macur:
101.	I also agree.