In the latest in her series of lectures on Transparency in the Family Justice System, Gresham Professor of Law, Jo Delahunty QC considered the problems faced by the courts in dealing with family law cases involving allegations of child sex abuse.  

A warning

Jo Delahunty began her lecture, on what was already one of the coldest nights of the year, with a chill warning. One of the risks of transparency is that the published details of family cases, in which the physical facts of sexual abuse are discussed, attract an inappropriate interest from some people. The same was true of this lecture, in relation to which she had already received a number of inappropriate comments on social media.

Such persons’ interest was not because they had an honourable desire to learn but instead to use the contents for child exploitation and to learn strategies to evade responsibility for their acts. There is a web currency in child sex abuse cases and the creation from them of mock biographies of the children who have been abused. She would not, she said, permit this lecture to become part of that exchange. For that reason, she would exclude any detailed discussion of the physical acts involved.

NB This is also an issue that any legal publisher or commentator needs to be aware of, in relation to the growing number of family law judgments being made available in accordance with the transparency guidance given to judges by the President of the Family Division in 2014. It is something judges themselves need to be aware of when writing their judgments, or in considering which parts of their judgments to make public, and which parts to confine to an annex or even give a different version in private, from the one released for the purposes of open justice and public legal information.

The topics covered

You can watch the complete lecture via Gresham College’s YouTube link, and a copy of the lecture notes will be available from the Gresham College website.

The topics covered were

  • What we mean when we talk of sexual abuse?
  • How it can come to light
  • What guidelines exist to help guide police and social services investigations
  • How the Family Court approaches the allegation
  • Examples of cases in which fundamental mistakes have been made by investigators with the question why that is still happening

Some of the key points that emerged were:

The problem is a timeless one

The exploitation of the vulnerable by those in a position of power is currently a hot topic of conversation. But it is not as if what is happening is new, it’s just that it is now being more exposed.

The difference in approach between the family and the criminal courts

The criminal jurisdiction looks at alleged past acts to determine the guilt or innocence of the accused. The focus is on the accused. In the family court, the focus is on the child whose welfare is paramount.

The family court does not have a hearing to punish or exonerate the alleged abuser (though any person accused of harm will no doubt perceive it in that way). Rather, the family court examines past events only to make decisions about what has happened to a child in order to determine what future arrangements for the child are required, i.e. it looks to the past to inform the child’s future.

Definitions of sexual abuse

In the ground breaking Cleveland Inquiry of 1987: ‘Sexual abuse is defined as the involvement of dependent, developmentally immature children and adolescents in sexual activities that they do not fully comprehend and to which they are unable to give informed consent or that violate the sexual taboos of family roles.’

See also section 31(9) of the Children Act 1989.

Note that adults need not abuse a child directly, but may procure a child for abuse by another. And a child may not only be a victim; in some cases, a child victim may also be a perpetrator against another child victim.

Evidence of abuse

A finding that a child has been abused can come from a variety of evidential sources, usually a combination of sources or what is referred to as a ‘broad canvas’ of evidence.

The family court has a greater freedom to look at different types of evidence than a criminal court. But it is crucial that such evidence should not be ‘filtered’ by others. For example, it is essential to record what a child actually said, not try to interpret what they meant. It is important to ask questions but not to suggest or encourage answers. Children like to please, so asking leading questions (i.e. questions which suggest a particular answer) is especially dangerous.

Avoid use of the word ‘disclosure’, favoured by some professionals, to describe something a child has said that is essentially an allegation. An allegation is something that may or may not have happened: it has yet to be proved. Using the word ‘disclosure’ suggests it is already a fact.

Investigating abuse

Listen to the child, take what they say seriously. But do not ‘believe’ them, without testing the evidence. To believe is to pre-judge. Always question the evidence, don’t just look at it to confirm a suspicion.

Separate out as two distinct questions (a) evidence of sexual abuse (what happened) and (b) evidence of the abuser’s identity (who did it). These questions should not be mixed up.

There is no room for a finding that something ‘might’ have happened. Proof sufficient for a finding of fact in a family court requires proof to the civil justice standard of a ‘balance of probabilities’ – i.e. more probable than not (51% against 49%).

Where things go wrong

The Cleveland Inquiry happened because there were significant procedural failings and dubious professional decisions in the handling of many cases in what appeared to be a surge in child sex abuse cases at the time.

But there have been many examples of flawed investigations in individual cases since then. Typically, they involve three recurring errors:

  1. Investigators proceeding on the basis that the child ‘must be believed’;
  2. Failing to understand the purpose of the ABE guidelines (Achieving Best Evidence in Criminal Proceedings, March 2011);
  3. As a result, flouting the ABE guidelines and thereby contaminating the quality of the evidence before the court.

A number of cases were cited by way of example, including AS v TH (False allegations of abuse) [2016] EWHC 532 (Fam) in which MacDonald J described the wholesale failure of professionals to follow the advice available to them in case law and statutory guidance when investigating allegations.

Another was Wolverhampton City Council v JA [2017] EWFC 62, in which Keehan J had serious criticism for a solicitor who had ‘run a coach and horses through 20 years plus of child abuse inquiries and of the approach in interviewing children in case of alleged sexual abuse.’

The potential consequences of getting it wrong are serious: the abused may be left unprotected and the innocent may be falsely tarred.

A positive note

At least in the UK we recognise that a child is a child until the age of 18 and that children need protection from being abused by adults.

Jo Delahunty cited two French cases, one from 2009 and another just this month, in which prosecutions for rape by adult men (29 or 30 years old) against an 11-year-old girl have been dropped or successfully resisted on the ground that the sex ‘did not involve violence or coercion’. This has now prompted calls for a minimum age for sexual consent in France, below which sex would by definition be coercive.

The next lecture in the series is at 6pm on 26 April 2018, on the subject of The Child in the Family Court Room: Whose Child is it Anyway?

Featured image via Shutterstock.