[2024] UKUT 401 (AAC)

A Children’s Services ‘Record of Meeting’ document dated 5 April 2019 reported “[D] had been acting quite differently with…(foster carer) indicating that she wanted to disclose but was finding it difficult hard how to actually say what happened…”.

When D was living in foster care, she disclosed to her foster carer that she had been sexually abused by her mother when aged 11 and/or 12. The circumstances of the disclosure were described in a police witness statement given by the foster carer on 13 February 2020, the relevant parts of which are reproduced in the Annex to these reasons. Briefly, the foster carer described D’s aversion to physical contact, how her behaviour and well-being would deteriorate following indirect contact with her mother, D’s very gradual disclosure to the foster carer that something ‘had happened’ to her when living with her mother and, finally, D’s written description (recorded on her iPad) of sexual abuse by her mother when aged 11/12.

On 7 May 2019, police officers visited D at her foster placement. D did not wish to discuss her allegations in any detail but reportedly confirmed her written iPad description of what happened. The police report of this visit is set out in the Annex to these reasons.

On 23 or 24 May 2019, D’s foster carer sent an email which reported details of a discussion with D on the evening before an ABE (Achieving Best Evidence) police interview. This recounted D’s anxiety about the interview and D’s description of when she knew that what her mother did was wrong. The email is reproduced in the Annex to these reasons.

The first of two ABE interviews with D took place on 24 May 2019, in the presence of her social worker. The relevant parts of the interview transcript are set out in the Annex to these reasons but, briefly, D was very reluctant to speak but did confirm that the ‘incidents’ involved her mother, took place in a bathroom and that her mother dried her after D took a bath/shower. The interview ended once D became upset. It was clear that D did not wish to answer questions about the detail of what happened in the bathroom or anywhere else in the home that she shared with her mother. Given the very limited information provided by D during this interview, police officers decided to arrange a second ABE interview at which D would be assisted by a registered intermediary.

Officials in the local Children’s Services Department spoke to one of D’s brothers in the light of D’s allegations. A note of the discussion was included in police records dated 24 May 2019:

“…[Brother] spoke about [D] growing up and that from the age of about 11 she started to be quite difficult at home and to have a difficult relationship with their mother. [Brother] was not negative about [D] and said that he felt that something significant had happened for [D] but that he was unaware what this was. [D] began to present as quite angry towards their mother although she continued to have a positive relationship with their father…[Brother] described his mother as the perfect mum and reported no concerns at home…”.”

On 4 June 2019, the Appellant was interviewed by the police under caution in the presence of her solicitor. The DBS case papers supplied to the Upper Tribunal do not include a transcript of the interview, but they do include a summary of the interview within police records, which is reproduced in the Annex to these reasons. Briefly, the Appellant denied ever having sexually assaulted D, that she ceased being involved in her children’s bathing at age 8/9, D may have made up the allegations because the Appellant was the only person never to have rejected D and D knew that the Appellant would always love and support her no matter what.

On 16 June 2019, police officers spoke to the Appellant’s ex-husband (D’s father). The police note of the discussion included:

“…[Father] has described how he was shocked to hear of how [D] had implicated her mother in a sexual offence matter and described he has not at any time witnessed anything that he thinks will be pertinent to the investigation. He does however, describe how he will be able to “give lots of insight into manipulative behaviour etc…”.

On 3 October 2019, police officers conducted a second ABE interview with D. The interview was also attended by D’s social worker and a person described by the interview transcript as an ‘appropriate adult’ but who appears in fact to have been a registered intermediary whose role was to assist D to communicate with interviewing officers. Communication aids were used, a body parts grid and ‘gingerbread doll’, and D listened to music through a single earphone during the interview. The interview transcript states that the interview lasted for 90 minutes. The transcript of the second interview is reproduced in the Annex to these reasons but, briefly:

The Appellant’s ex-husband gave a police witness statement on 5 October 2019. The statement said nothing of direct relevance to D’s allegations of sexual abuse but did make allegations of controlling and manipulative behaviour against the Appellant. Relevant parts of the statement are reproduced in the Annex to these reasons.

On 15 May 2020, the police reviewed the evidence related to D’s allegations. The review report noted:

“based on what is known at this stage we have a one on one allegation, the complainant…may not even be willing to attend court.…school records show the complainant was troubled girl, however no disclosures were made.

The key evidence is…where the complainant made an entry on her iPad. She mentions what happened this is her first disclosure to Foster Care as she was unable to verbalise what happened.

…If no other information/evidence is secured I still see this as a one on one allegation which would not need the threshold of taking to CPS.”

On 8 June 2020 the police decided that no further action would be taken in relation to D’s allegations. Accordingly, the Appellant was not charged with any criminal offence.