(Court of Appeal; Thorpe and Keene LJJ and Hedley J; 9 October 2008)
The 5-year-old child made a comment about the father's sexually inappropriate behaviour to a teaching assistant. The assistant did not make a note of the comment, but informed the teacher; social services were involved. The police recorded interviews with the child without a child protection officer present. The assistant was not interviewed for 6 months, by which time she was unable to recall the precise words used by child. A 5 day fact finding hearing was listed; the judge vacated the hearing after reading the papers and hearing evidence from the jointly instructed expert to the effect that it was possible that there had been inappropriate sexual behaviour, and equally possible that there had not been. The judge considered that the lack of consistency and accuracy concerning first disclosure and the further reports made a 5 day fact finding hearing inappropriate.
There was no significant difference between the assistant's two versions of the child's comments; either was suggestive of inappropriate exposure and either required judicial investigation. While it was unsatisfactory that the episode had been mishandled and imperfectly recorded, making it difficult for the judge to arrive at a positive finding that would meet the highly probative standard, it had been crucial for the judge, at a minimum, to hear the assistant's evidence and the evidence of the parents.