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Court Remains Reluctant to Cross Examine Children

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Marcia Hyde was recently involved in a 15 day fact finding hearing in respect of six children involving allegations of sexual abuse.

This particular matter was an appeal against a single finding of sexual abuse of a 9 year old girl by Mr. H. made following a 15 day fact-finding hearing. In her ABE interview, the child had consistently alleged penetrative anal sexual abuse and nothing else. The child’s mother and extended family alleged that the child’s allegation was one of masturbation and touching.

Mr. H was acquitted in the criminal court on a charge of rape. In this court, HHJ Boye made a finding in terms of masturbation and touching which was upheld in this appeal. The Court of Appeal rejected the argument that the discrepancy between the two allegations was sufficient to cast doubt on the veracity of any allegation. The Court of Appeal also noted that Mr. H had chosen not to challenge the child’s evidence by cross-examination.

Recent statistics show that there remains reluctance in the Family Court as compared to the Criminal Court to cross-examine children even when serious allegations are made. Practitioners may need to be more robust in respect of this in the light of the Court of Appeal’s comment as to not challenging a child by way of cross examination when there is discrepancy in the evidence. In this case there were numerous reasons why the choice was made not to cross-examine the child.

The judgment from this appeal can be read here: M (A Child) [2017] EWCA Civ 2445.

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