The Court of Appeal has set aside a judge’s findings during care proceedings that a 7-year-old boy had been sexually assaulted by his father.

The court was told that the boy lived with his mother after his parents separated but had stayed in contact with his father. He was placed in foster care during care proceedings.

The foster carer informed the social worker that the boy had made comments to her which indicated possible sexual abuse by his father. The social worker reported the matter to the police and visited the child at school.

The father accepted saying that he loved and wanted to eat the child’s penis/testicles but claimed that was common and acceptable within his culture. He denied all other allegations.

In January 2018, the police were informed by an imam that men in the Kurdish community might speak to small boys in such a way. A police officer visited the boy in February 2018 but no further action was taken.

The officer’s conversation with the boy was recorded on audiotape. The boy made other allegations in a discussion with the foster carer in May 2018. Expert evidence was obtained, which confirmed the claims about Kurdish cultural customs.

At a fact-finding hearing, the judge found the allegations proved.

The Court of Appeal overturned that decision. It held that the judge had erred in her assessment of the evidence, and her treatment of the police officer’s conversation with the boy was flawed.

A chat with a police officer was different to a formal Achieving Best Evidence (ABE) interview when dealing with children. The absence of any video recording, the delay before the conversation with the police officer, the procedural failures, and the failure to check the boy’s level of understanding should have raised the question of how much weight was to be attached to what was said.

There were other deficiencies in the judge’s analysis of the evidence. First, she failed to identify or consider the significant inconsistencies in the child’s accounts and demonstrations. Second, there were concerns that the boy’s accounts were tainted by comments made by others.

The foster carer’s comments to the child that the father’s actions were naughty were understandable but exceeded recommendations in the ABE guidance.

Third, the judge should have considered whether the fact that the foster carer and the social worker were unaware of the Kurdish culture when the child initially spoke to them might have caused a misunderstanding. In concluding that the child’s allegations went beyond what might be culturally acceptable, she failed to consider whether the child’s original remarks might have been misinterpreted.

The finding that the boy was sexually assaulted by his father was set aside and remitted for retrial by another judge.

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Case Citations: [2018] EWCA Civ 2738RE SR (A CHILD) sub nom DR v (1) CAMBRIDGESHIRE COUNTY COUNCIL (2) RK (3) SR (BY HIS CHILDREN’S GUARDIAN) (2018)CA (Civ Div) (David Richards LJ, Henderson LJ, Baker LJ) 06/12/2018