(Court of Appeal, Tomlinson, Gloster, Ryder LJJ, 17 December 2013)
Care proceedings were initiated in relation to the 17-month-old child following allegations of sexual abuse against the mother made by the mother's 13-year-old brother and other concerns for the parents' care of the child including, protection from sexual offenders, domestic violence and neglect.
At a case management hearing the issue of whether the brother should give evidence was considered. It was not possible to view the DVD of his ABE interview in the courtroom on that day and the only evidence the judge had to make a determination was a social work report which stated that he was feeling distressed. The judge determined that the brother should not give evidence. It was further decided that disclosure of documents from the criminal proceedings was not necessary.
On appeal, it was clear that the judge should have either viewed the DVD or at least seen a transcript of the interview before coming to a decision. The appeal was allowed and the decision to not call the brother to give evidence was set aside. The decision to not order disclosure of the criminal proceedings documentation was also set aside. There was no basis for making a decision not to disclose documents which were necessary to any fair process of cross examination and the consideration of the weight to be attached to the allegations. Disclosure of the documents in both the family and criminal proceedings was ordered.