Re T (Children)  EWCA Civ 507 (7 April 2020)
This case reminds practitioners of the perils of not following the guidelines for interviewing minors and in the context of acting for an accused the potential value in obtaining a witness statement from any intermediary who was present at the interview.
In the instant case it would appear that the intermediary’s concerns formed part of the transcript of the interview. However, it cannot be assumed that an intermediary will have voiced all their concerns at the time and it is a line of enquiry that would appear worth considering.
As a matter of practice in my view it is always a useful exercise to listen to or view the actual interview rather than rely on the transcript as the absence of lack or narrative or free recall may not be obvious from the transcript and equally it may not be as easy to observe a child as tired or distracted from the written word.
The relevant passages are set out below – the findings of sexual abuse were set aside.
Per Lord Justice McCombe
“45. “…There were a number of features of those interviews which demonstrated a failure to comply with the applicable Guidance. They will be apparent from what I have said already. Of course, failure to comply with the Guidance will not always render evidence obtained incapable of establishing acts of sexual abuse: see Re B (Allegation of Sexual Abuse: Child’s Evidence)  EWCA Civ 773, per Hughes LJ (as he then was) at  –  and  – , cited by McFarlane LJ (as he then was) in Re J (A Child)  EWCA Civ 875 at  – . However, deficiencies of this type can be very significant and, in this case, in my judgment, they were just too numerous to be overcome in order to sustain this single finding in the context of the serial sexual abuse that had been perpetrated by W and the Mother against all these children in the immediately preceding 11 week period. For my part, I accept Mr Roche’s submission that the value of the evidence about this single alleged act of abuse, elicited at a very late stage of a long interview and only as a result of a distinct prompt about a conversation with S, was also reduced to vanishing point.
“46. The transcript and the recorded interview do not sit easily with the judge’s description of X’s statement being clear and spontaneous. Such information as was obtained arose from directed questioning of a distracted and tiring child. There is no narrative or free recall or any details that might make it possible to understand when and in what circumstances such an event might have occurred. This is of particular significance where the possible allegation is so strikingly similar to abuse that the child was in fact recently suffering on a number of occasions at other hands.”
Josephine Spratt-Dawson Trinity Chambers
9 May 2020