3.11 Video Interviews/Achieving Best Evidence

1. Introduction

The investigation into allegations of child abuse is a crucial stage in protecting children. Although other agencies will be involved in aspects of the investigation process the Police and Children’s Services (CS) take primacy. This Protocol is designed to help staff from the two agencies to work together and to promote best practice. The Protocol will focus on the investigative interview, which is the child’s pre-recorded evidence- in- chief.

This protocol is based on: Achieving Best Evidence in Criminal Proceedings: Guidance on interviewing victims and witnesses, and guidance on using special measures, Ministry of Justice, March 2011 is a requirement for investigating officers.

2. Purpose

To recognise the protection of the child is paramount;
To provide an effective, coordinated approach for dealing with child protection referrals where it is alleged that a child is suffering or is likely to suffer Significant Harm;
To ensure the child feels listened to;
To ensure the child receives appropriate help (e.g. protection and/or medical attention);
To help keep to the absolute minimum the number of times the child is interviewed and medically examined;
To ensure that relevant parents/ carers, where appropriate, are involved in and informed about the enquiry and are prepared for any child protection conference, which may follow;
To create the basis for future help and support to the child and family on a planned coordinated basis;
To obtain as far as possible, the child’s best evidence for any future trial and/or family court hearing;
To ensure an accurate record is maintained on the enquiry and decision making process;
To ensure post enquiry intervention strategies are in place.

3. Thresholds for Enquiries – Both Joint and Single Agency

All decisions about intervention levels should be made at the child protection strategy discussion, including whether or not a single (S.17) or joint (S.47) child protection enquiry will take place.

In cases of inter- familial abuse, a consultation should always take place between the Police and Children’s Services to consider thresholds and concerns. This is particularly important where there are welfare concerns for the child or to identify if the child is in need of support and/or services.

If the allegation relates to a professional person or someone in a position of trust, reference must be made to Working Together 2018 Chapter 2 – Organisational Responsibilities: Section 11 of the Children Act and the appropriate strategy discussion/ meeting must take place with the Area LADO (Local Authority Designated Officer). See also Chapter 8.3, Allegations Against Persons who Work with Children.

The following tables set out example of types of referral and the interventions required by police and CS. Please note that any allegations which suggest that a crime has or may have been committed must be referred to the Police as they are responsible for recording this under the Home Office regulations. This will also enable indices checks as appropriate on Police databases.

These examples are included for guidance, it is expected that decisions on wider cases will be made at strategy discussion. See also the Domestic Violence and Abuse Procedure and the Norfolk Continuum of Need Guidance. All strategy discussions should involve the referrer, CS, police and health as a minimum.

ALLEGATION OF SEXUAL ABUSE
Type of Referral	Example	Intervention Requirement
Allegation of sexual abuse upon a child	A child makes an allegation of sexual abuse.	For this type of sexual abuse referral the Police and Children’s Services (CS) will undertake a joint investigation with the police having the lead for the criminal investigation and CS having the lead for S47 enquiry
Concern about symptoms of possible sexual assault	A child is medically examined and found to have symptoms, which are suggestive of sexual abuse. The child does not make an allegation or is too young to do so.	For this type of sexual abuse referral the Police and Children’s Services (CS) will undertake a joint investigation with the police having the lead for the criminal investigation and CS having the lead for S47 enquiry, working with health. Following a joint investigation, if there is insufficient evidence to prosecute this does not mean the case should not be followed up by CS as the burden of proof in civil processes is ‘reasonable cause to suspect’ and therefore a lower burden of proof.
Sexualised behaviour	Report of a child simulating sexual activity by themselves or with others.	CS will undertake enquiries as a single agency, unless there is additional information to indicate that a crime may have been committed. If a crime may have been committed, a child protection strategy discussion will be arranged and a joint investigation carried out between Police and CS. See also SHB policy
Sexual abuse child upon child	Report of two young persons (i.e. 13 – 15 years) engaged in sexual activity.	CS assessment will evaluate whether there is any information or evidence to indicate age, inappropriateness/ consent/ coercion/ exploitation. A child protection strategy discussion will take place in order to plan the appropriate level of intervention. A CSE Perpetrator risk assessment should be considered.
Sexual abuse	Report of a child under the age of 13 involved in sexual activity with someone of any age.	If any children involved is under 13 a joint investigation must be undertaken by the Police and CS, with the Police having the lead for the criminal aspect of the investigation unless the perpetrator is under the age of criminal responsibility.
Grooming (including online)	Children vulnerable to sexual exploitation.	For this type of sexual abuse referral the Police and CS will undertake a joint investigation with the police having the lead for the criminal investigation and CS having the lead for S47 enquiry. Following a joint investigation, if there is insufficient evidence to prosecute this does not mean the case should not be followed up by CS as the burden of proof in civil processes is ‘reasonable cause to suspect’ and therefore a lower burden of proof. The Safeguarding Children and Young People from Child Sexual Exploitation: Policy, Procedures and Guidance must be followed for any Child identified as being at risk.
Images/Digital Media	Report of a child being identified as a victim through CEOP/ SCOLT (This covers occasions where the download of devices leads to first generation images being recovered that results in victim identification.)	For these types of sexual abuse referral the Police and CS will undertake a joint investigation with the police having the lead for the criminal investigation and CS having the lead for S47 enquiry. Following a joint investigation, if there is insufficient evidence to prosecute this does not mean the case should not be followed up by CS as the burden of proof in civil processes is ‘reasonable cause to suspect’ and therefore a lower burden of proof.
Allegation of physical abuse. Allegation of physical abuse where a child has sustained an injury or there is a clear or likely medical diagnosis of physical abuse	A child informs his/her teacher that a parent has been hitting him/her. There are no injuries reported by the child or observed by teacher and no indication of an implement being used. A child attends a hospital and is diagnosed with non-accidental injuries or is suspected of having non-accidental injuries, whether or not the child makes an allegation of abuse.	In the absence of any additional information or evidence to suggest that the actions were over and above an act of reasonable punishment, CS should respond as a single agency. However, if further information and/or evidence emerges that a criminal offence may have been committed, a child protection strategy discussion/ meeting should be convened and a joint enquiry/investigation undertaken by the Police and CS, with the police having the lead for the criminal aspect of the investigation.
Allegations of fabricated illness	Paediatrician / Health Visitor have health concerns about repeated medical consultations where there is lack of evidence of symptoms described.	Joint strategy meeting must take place with the designated Consultant in attendance. The Fabricated Illness policy must be followed.

REPORTS OF NEGLECT
Type of Referral	Example	Intervention Requirement
Reports of minor/low level neglect	Report that a child is failing to thrive.	CS to respond as single agency in collaboration with health professionals. If during the CS Services/ Health intervention it becomes evident that the neglect constitutes Significant Harm and that a possible crime has taken place, the Police must be informed and a child protection strategy discussion convened. The Police and CS will undertake a joint investigation, with the Police having the lead for the criminal aspect of the investigation. (See also Neglect Strategy and policy)
Reports of immediate/ acute significant neglect	The Police respond to an anonymous call and find a child locked in a house alone. Home conditions are considered to be detrimental to the child’s welfare and the child presents as being neglected and hungry. Non-school attendance/ lack of supervision.	Strategy discussion – A joint investigation will be undertaken by the Police & CS.

REPORTS OF EMOTIONAL ABUSE

Type of Referral

Example

Intervention Requirement

Reports of children suffering emotional abuse

An anonymous call is received alleging that a child is being repeatedly verbally chastised at home.

A child is present in the family home during an incident of domestic abuse that has warranted a child protection referral.

CS will respond as a single agency but will ensure full joint agency checks carried out. S ee Domestic Abuse policy.

CS will usually respond as a single agency and undertake enquiries. However when there are multiple referrals and/or a pattern of incidents of domestic abuse, for example, reports of increasing violence, a child protection strategy discussion/ meeting will be convened, and consideration given to a joint investigation by the Police and CS.

4. Dealing With Issues Requiring Resolution

When important issues between safeguarding agencies are not resolved through a Strategy Discussion, this must be recorded and referred to senior managers within Children’s Services and Police. An interagency discussion will then take place at senior manager level to resolve areas of disagreement/ difficulty; (See Resolving Disagreements policy)
Any delays by Police or Children’s Services in undertaking single or joint investigations must be recorded and reported to managers at senior levels.

5. Single Agency Enquiries

Where it is agreed that single agency enquiries will be made by Children Services, feedback must be provided to the Police, health and any referring agencies as a minimum before the case is closed.

6. Stage One: Planning the Joint Investigation

Strategy Meeting

Consideration should always be given to whether there is a risk to the life of a child or likelihood of serious immediate harm. In either case immediate protection (see Flowchart 2 – Working Together 2018) should take place.

Formal recording of the strategy meeting will be the responsibility of CS.

The aim of the meeting/discussion is to agree objectives and individual roles within the investigation. The focus of the discussion is to make decisions on how the investigation will proceed.

Discussions should always involve health, the referring agency and any other professionals known to be involved with the child/family.

The outcome of the meeting/ discussion will be recorded to include:

Decisions taken;
Reasons for decisions;
Identification of roles;
Timescales and contingency plan;
Issues of consent;
How any medical investigation will be conducted. (see NSCP 3.13 Child Protection Medical Examinations including injuries to non-mobile children policy)

If the allegation concerns multiple victim abuse, organised abuse or abuse in a residential setting, then a strategy meeting must be held as required under the NSCP Policies and Procedures. The allegations may be clear at the outset or may emerge during the investigation. The meetings will be minuted and will be open to disclosure in criminal proceedings.

Timing of Investigations/ Enquiries

The following referrals may require immediate protective action. These referrals require an urgent response and the child must be seen to assess their immediate safety and welfare on the day of referral:

Severe neglect;
Serious physical injury or threat of physical injury;
Allegation of sexual abuse where there is a risk of further abuse.

NB – The criteria for enquiries at this stage is ‘reasonable cause to suspect’ and discussions in respect of these 3 categories should be made with this in mind.

Every effort should be made to consult with other relevant professionals before visiting a child; however, investigations should not be delayed if the child may be at imminent risk.

Where referrals are received careful consideration should be given to whether an evening/ night visit should be made if this would involve waking up the child(ren). In most cases this would be inappropriate, but again the safety of the child(ren) must be the overriding consideration.

Any DVD recorded interview of the child should take place as soon as possible. Any delay in the interview should only be in the interests of the child and the reasons recorded.

When it has been decided that a joint investigation will be undertaken, the CS Manager and the relevant Child Abuse Investigation Unit (CAIU) Detective Sergeant / Detective Inspector will plan the investigation and agree timescales and staff.

Assessment of Risk

A decision must be made on whether the child is safe to remain at or return home. Some exploration of the following issues must be made at the investigative stage:

Seriousness of any injury/abuse;
Is the abuse current?
Previous injuries/abuse;
Availability of a protective person – have they demonstrated a willingness/ability to protect?
Any history of family violence?
Any history of parenting and any previous concerns?
History of drug abuse, alcohol abuse or mental illness;
What supportive networks are available?
The views and wishes of the child

There may be other relevant factors to consider in compiling assessment of risk – these are not exhaustive. It is important that the child’s views are taken into consideration and recorded. It is also important to be mindful of pressures to which children may be subjected.

Medical Assessment

See Child Protection Medical Examinations including injuries to non-mobile children policy.

Immediate Action

Immediate decisions will need to be made in consultation with the responsible CS Manager, Social Worker and the Police CAIU Investigator.

The following are considerations and are not exhaustive:

What action is necessary for the immediate protection of the child based on a risk assessment?
Whether or not to interview other children in the household;
What immediate support the child and family require;
Any legal action which may need to be taken and by whom;
What further information is required and who will obtain this;
What action, if any, is necessary to avoid the subject of the interview talking to other suspected witnesses before their interview is conducted?

All decisions will be recorded on the Police on the Children’s Services electronic recording system.

Whether an ABE can be achieved or not; it is totally appropriate for decision making on mitigating risk i.e. Police Protection powers and arrest of suspect, to be based on the account given to the professional.

7. Stage Two: Planning and Preparation for the Investigative Interview

Consent

Where the child has sufficient understanding, consent must always be obtained from the child and to enable consent to be given, adequate information must be given regarding the purpose of the interview. Refusal of consent must be respected however consent is not necessary from the child (although it unlikely to be practicable or desirable to record an interview with a reluctant or hostile child).

Where a DVD recording is to be made the child must be informed about who may see the interview recording and why. Following the interview, if it is apparent that a criminal prosecution may follow and that the child will be required as a witness, then both the child and appropriate carers should be fully informed of the implications of such a course of action. At no point must a child, parent(s) or carer(s) be led to believe that the Court will not require the child’s oral evidence.

The needs and safety of the child must be the first consideration when determining at what point parents/carers should be informed of the concerns and that their child is being/has been interviewed. The child should never be interviewed in the presence of an alleged or suspected perpetrator.

It is generally presumed that the parents or carers of a child witness will be informed of any interview before it takes place; this presumption is independent of consent. In exceptional circumstances, however, it may be necessary to interview a suspected child victim without the knowledge of the parent or carer. Such circumstances include the possibility that a child would be threatened or otherwise coerced into silence; a strong likelihood that important evidence would be destroyed; or that the child in question did not wish the parent to be involved at that stage, and is competent to take that decision.

Proceeding with the interview in the absence of parental knowledge needs to be carefully managed and always recorded.

In cases where an adult with parental responsibility refuses to allow a child to be interviewed, whether that interview was to have been video recorded or not, and the child is not competent to consent of their own accord the interview cannot take place. A strategy discussion should consider whether it is appropriate to make an application for an Emergency Protection Order under section 44 Children Act 1989 and to seek a direction from the court under section 44(6)(b) for an interview to be carried out as part of an assessment of the child.’

(‘Achieving Best Evidence in Criminal Proceedings: Guidance on interviewing victims and witnesses, and guidance on using special measures, Ministry of Justice, March 2011, Part 2 Page 19, section 2:40).

Interviewers may decide that the needs of the child and the needs of criminal justice are best served by an assessment of the child prior to the interview taking place.

Victim Strategy

If the child has made a clear disclosure to a professional, a clarification assessment is not required. Their evidence should be preserved for their pre-recorded Evidence- in- Chief (ABE). Instead, a needs assessment should take place so that a true understanding of their speech and language levels can be understood.

If a clear disclosure has not been made to a professional, a clarification assessment is likely to be appropriate. The same questioning technique should be adopted during the assessment to that of the Video Interview. Verbatim questions and answers must be recorded in the ABE Planning and Preparation booklet.

General factors to be explored through an assessment prior to interview

The child’s preferred name/form of address
The child’s ability and willingness to talk within a formal interview setting to a police officer, children’s social care worker or other trained interviewer
An explanation to the child of the reason for an interview
The ground rules for the interview
The opportunity to practice answering open questions
The opportunity to practice a free narrative
The child’s use of language and understanding of relevant concepts such as time and age
Any special requirements the child may have (e.g. do they suffer from separation anxiety or have an impairment?
Any apparent clinical or psychiatric problems (e.g. panic attacks, depression) that may impact upon the interview, and for which the child may require referral for a formal assessment

See: Achieving Best Evidence in Criminal Proceedings: Guidance on interviewing victims and witnesses for further explanation on assessments prior to interview.

Assessment prior to interview

The assessment process should never replace or overshadow the substantive interview with the child.

The assessment prior to the interview with the child should so far as possible adhere to the following basic principles:

Listen to the child. Any question directed to the child at this stage must be in accordance with ABE;
Never stop a child who is freely recalling significant events;
An accurate and detailed record of a discussion must be made. If the discussion includes a disclosure of abuse, that part must be recorded verbatim and contemporaneously or, at the very least, as soon as possible after the contact. Notes should be made on the joint investigation forms or in the Police Officer’s notebook. Times and persons present should be included;
Record all subsequent events up to the time of the substantive interview;
Even if no disclosure of a potential criminal offence is made, accurate recording is essential as decisions about risk may be made on the strength of them;
If there are concerns in respect of other siblings in the household, ensure they might not overhear conversations which might contaminate evidence.
Once you are satisfied you have an understanding of what has happened and have made the joint decision to go to proceed to ABE interview, ask yourself whether you need to conduct an ABELS assessment.

ABELS

ABELS is a language-screening tool for use by police officers in the ABE interviews of children.

It identifies when a child may have difficulty communicating in an achieving best evidence (ABE) interview.

The results enable officers to make a decision and justify their reasoning about how to proceed. ABELS is designed to help police officers to recognise when a Registered Intermediary is needed, as well as highlight areas of language, which might be problematic in ABE. This will enable the officer to plan accordingly.

ABELS is scored on a traffic light system of Red(Difficulty), Amber(Mild difficulty) Green(Able to achieve). It gives a clear visual scoring system for easy interpretation.

ABELS is specially designed for use before an ABE interview. It should not be used to identify communication difficulties when giving evidence at court as it does not take into account the linguistic complexities of cross examination.

ABELS should be used by the Police and Children’s Services to make an informed decision on whether the child can be interviewed with or without a registered intermediary. Whatever the decision, a discussion should take place with the Detective Sergeant and CS Team Manager to ensure the rationale is properly thought through and documented.

NB: There may be rare situations where it is simply not possible to use ABELS prior to speaking to the child i.e. in acute safeguarding cases, where there are language barriers or it is impractical to do so. In such cases, a discussion should take place with the Detective Sergeant and CS Team Manager to ensure the rationale is documented.

Registered Intermediaries (RIs) for child witnesses

The decision must be made on an individual basis and an assessment by a RI should be considered for witnesses under 18 who seem liable to misunderstand questions or to express difficulty expressing answers, including those who seem unlikely to be able to recognise a problematic question (such as one which is misleading or not readily understood) or those who may be reluctant to tell a questioner in a position of authority that they do not understand.

RIs must be considered for use at court in every case involving a child witness and the reasons for not using a RI must be specifically recorded.

When to Consult Experts or Interpreters

It will be necessary to consult with experts or interpreters to agree what, if any, intermediary role they should take during the interview in the following circumstances:

The child’s first language is not English;
The child has a mental disorder/is psychologically disturbed;
The child has a disability or a sensory impairment;
Members of the team do not have sufficient knowledge and understanding of the child’s racial, religious or cultural background;
Where unusual forms of abuse are suspected.
The outcome of an ABELS assessment suggests the child may struggle to coherently recall events.

See: Achieving Best Evidence in Criminal Proceedings: Guidance on interviewing victims and witnesses for further explanation on Intermediaries, Experts and Interpreters

8. Stage Three: The Investigative Interview

Main principles:

The basic goal of an interview with a witness is to obtain an accurate and reliable account in a way which is fair, is in the witness’s interests and is acceptable to the court. In short, it is their pre-recorded evidence-in- Chief for court proceedings.

All interviews will be undertaken in accordance with the guidance contained in Achieving Best Evidence in Criminal Proceedings: Guidance on interviewing victims and witnesses; conducting the interview (Pages 68- 86)

Overview:

Interviews should normally consist of four main phases: Establishing Rapport, Initiating and supporting a free narrative account; Questioning and Closure.

Typical Interview Structure (Achieving Best Evidence in Criminal Proceedings: Guidance on interviewing victims and witnesses, page 69 ):

9. Stage Four: Following the Interview

Victim Care Strategy

Following the interview, the interviewing officers should discuss and plan the outstanding elements of the S47 investigation to ensure appropriate safety is in place and the care of the victim/ witness is paramount. This might include wider support services such as SARC, counselling services, CAMHS, ISVA, IDVAs etc.

The Child Who Becomes a Suspect

Children who are being interviewed as witnesses may make a statement during the interview that implies they are also abusers or disclose they have committed other crimes. If a child victim appears to be a suspect during the course of an interview, a decision will have to be made on whether to proceed or terminate the interview. The interviewers should take a short break to consult on the matter.

If it is concluded that the evidence of the child as suspect is paramount in a particular case, the interview should be terminated so that any further questioning can be carried out in accordance with the Police and Criminal Evidence Act 1984 guidance. (This may occur when dealing with an older child).

A short debriefing between the interviewers will take place to evaluate information and evidence obtained. This debriefing may also involve line managers.

Longer Term Planning

Some investigations will go on to an initial child protection conference, which will consider whether:-

The threshold criteria for ‘Significant Harm’ have been met

Any necessary legal action to protect the child;

The child and family’s therapeutic needs must be considered with or without the need for ongoing child protection procedures.

The following issues will need to be addressed if criminal proceedings take place:

The police officer will update the social worker when a charging decision has been made. Both parties will ensure their internal records are updated
Involving the child in the decision making process – informing him/her that the DVD will be played in court and they will be cross-examined, obtaining the child’s consent to do this;
Preparation for the child for court. Enabling the child to view the DVD to refresh their memory;
Guidance to the child and carers on the court process;
Identification of the responsible adult in relation to child witness pack.

The following issues will need to be addressed if criminal proceedings do not take place (NFA Procedure)

At the point the police or the CPS conclude that no further action (NFA) will be taken with regard to a criminal prosecution the procedure set out below should be followed:

The police officer will update the social worker and will provide a succinct written summary of the NFA decision to include the reasoning behind it. Both parties will ensure that their respective internal records are updated with this summary to ensure consistency.
Both parties will agree any further work that needs to be completed from a safeguarding perspective at this stage. This includes agreement as to how other parties are to be updated so that they also understand the reasoning behind the decision and are left in no doubt as to what action to take should further child protection concerns come to light.
Depending upon the particular circumstances of the case this discussion may need to be held between supervisory staff from the police and CSC.
Depending upon the particular circumstances of the case consideration should be given to holding a strategy meeting at this stage.
Depending upon the particular circumstances of the case consideration should be given to seeking legal advice at this stage and/or to holding a legal strategy meeting.
If agencies do not agree at this stage as to further safeguarding action the Resolving Professional Disagreements process should be followed.
All of the above considerations and agreements should be recorded on police and CSC records and these records should not be finalised until signed off by a supervisor.

Protocol Monitoring and Reviewing Arrangements

There will be regular strategic meetings between Police and Children’s Services to monitor arrangements contained within the Protocol;
Police and Children’s Services will conduct a joint audit of Strategy Discussions and records of ABE interviews on a yearly basis to ensure good practice is promoted;
Police and Children’s services commit to deliver comprehensive training to all professionals undertaking joint ABE interviews

3.10

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3.12