The sad case of Poppi Worthington has highlighted the difference between the level of proof required to substantiate child sexual abuse in the criminal and family courts.
The ruling of Mr Justice Peter Jackson, a High Court family judge sitting at Liverpool Crown Court, which was published and reported in the media was that, on the ‘balance of probabilities’, Poppi’s father had ‘perpetrated a penetrative… assault’ on her prior to her death. When a case goes to trial in a criminal court, it is necessary to prove the guilt of the alleged perpetrator ‘beyond reasonable doubt’.
The Commissioner’s work on child sexual abuse in the family environment has highlighted some of the practical difficulties of substantiating child sexual abuse. Children seldom come forward to report abuse directly. In particular, younger children may not understand that they have been sexually abused, or they may lack the vocabulary to tell an adult what has happened to them. If they do tell someone, it is likely to be some time after the sexual abuse took place – research has identified that many victims and survivors wait until adulthood before reporting that they have been abused, and data held by police forces demonstrates that most cases of sexual abuse do not come to their attention within the window of opportunity for the collection of forensic evidence.
In the absence of physical evidence, substantiation is largely dependent on the ability of the victim to provide a clear, consistent account of the abuse. Police and children’s services use the ‘Achieving Best Evidence’ (ABE) interview to obtain an account for use as evidence in the courts. Children who have been sexually abused are likely to be traumatised. They might not always be able to remember the precise details of their ordeal, particularly where there were multiple episodes of abuse, and the opportunity for victims to truly give their ‘best evidence’ relies on the skills of the professionals conducting the interview. However, our Inquiry into child sexual abuse has reinforced the findings of a recent inspection by Her Majesty’s Inspectorate of Constabulary – there is a general lack of recent training on conducting ABE interviews among Police officers; a shortage of ABE-trained social workers; delays and shortages in skilled intermediaries to assist with interviews of younger children and children with learning/physical disabilities; and a variance in the quality with which these interviews are conducted.
Overall, putting together a package of evidence to substantiate child sexual abuse can be very difficult. Where evidence doesn’t meet the standard of proof necessary for a criminal conviction of the alleged perpetrator ‘beyond reasonable doubt’, it may nonetheless be sufficient for substantiation in the family court ‘on the balance of probabilities’. This is why the Commissioner has called for a discussion of this issue with the appropriate authorities. Given the challenges faced by professionals in obtaining the evidence necessary for securing criminal convictions in sexual abuse cases, a dialogue between the judiciary, the police and professionals tasked with protecting children is necessary. It is our view that the child protection and criminal justice systems can be improved to ensure that the best possible evidence is consistently available to the courts and the criminal and family courts work closely together to achieve the best possible outcome for every child and in every case.
Of course, the circumstances surrounding Poppi Worthington’s death are troubling because of the reported failings of services. Had the Police investigation been undertaken to the highest possible standard, it may have been possible to pursue the criminal case. This is why the Commissioner has written to the Home Office asking for this case to be urgently investigated and for reassurances that other children in her family and community are safe from whoever committed the crimes that led to her death. Over the coming months, the Commissioner will examine the way in which child sexual abuse cases are investigated and convictions secured as part of our ongoing work to tackle child sexual abuse.