Concerns about inappropriate interpreters and use of Language Line

https://www.bailii.org/ew/cases/EWFC/HCJ/2024/438.html

20.9.24

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3. The parents are from Afghanistan. English is not their first language and as such I have been greatly assisted at court by two interpreters. It has been of notable benefit that at this hearing we were fortunate to secure the same interpreters for the entire hearing. I extend my thanks to both gentlemen for their work and insight into the nuances of the Afghan Dari language.

4.  This judgment is supplemental to the simplified judgment provided to the parties and designed to aid easy translation and explanation for the parents. This judgment focuses in more detail on issues raised in the course of this hearing around vulnerability, interpretation and translation, cultural awareness and sensitivity which particularly impact a parent. It is also a case where, upon testing the medical evidence in rigorous cross examination, was found to be flawed and wholly unreliable. This case speaks to the importance of testing the medical evidence by an advocate with an interrogating mind and a thorough grasp of all of the material.

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66.   The ability of Mrs D to give a proper account of what happened has also been inhibited and compromised by the poor and often incorrect interpretation of what she was telling professionals. It is a theme that runs through all of her evidence.

67.   At the hospital she initially presented alone which would have been very overwhelming for her. She was provided with interpretation services via LanguageLine, a telephone interpretation service. This is a service, widely used in the NHS for any person who attends hospital and needs treatment where English is not their first language.

68.   In this case the Local authority place weight on what was said by the mother at the hospital to the medical staff using LanguageLine. There are, in my judgment, a number of limitations and concerns about relying on the evidence from LanguageLine in respect of Mrs D.

69.   Firstly, it is not a specialist medical interpretation service. The interpreters are not provided with any form of medical training around medical terms or language to enable them to provide an explanation of what they are being told by the medics. It is simply a literal translation. The extent to which they can adequately explain medical concepts and terminology to a lay vulnerable individual is therefore very much in question.

70.   The interpretation also takes no account of the cognitive ability, educational standard or literacy of the person for whom the translation is being provided. It also has to be borne in mind that on 18.03.2024 at the hospital and at the police station nothing was known about the mother's literacy, functioning, cognition and vulnerabilities. Given they were not known about they were not taken into account.

71.   As a devout Afghan Muslim woman, there are a number of cultural issues around interpretation to consider particularly in using a male interpreter. Respect has been paid to issues of modesty for the mother at court. Her male interpreter sitting away from her and translating sequentially. It has proved almost impossible to secure a female Afghan Dari interpreter for her. The lack of a female interpreters, at all stages of this case, has other consequences. It is not culturally acceptable in Afghan culture for men to speak of or discuss intimate body parts with women. At the hospital Mrs D had a male interpreter from LanguageLine who is unrelated to her and effectively a stranger. More than that she was being asked questions about H of a highly personal and intimate nature and would no doubt have been uncomfortable and unable to fully engage. In those circumstances could the fullest of discussion and translation take place?

72.   The use of LanguageLine as primary evidence of the first account a parent gives at hospital is concerning and problematic. The initial account with all its mistakes and inaccuracies, as in this case, becomes embedded. I am aware that a number of advocates in this case intend raising the issue with the FLBA committee and vulnerable witness team as to the approprtiateness of its use.

73.   I do not accept that it was appropriate for the father to be invited, by the police, to interpret for the mother at the hospital in circumstances where there was reason to suspect that they jointly or separately had potentially injured H and Y. Further, it was in my judgment wrong for the Police to use Mr D as the interpreter when formally cautioning and arresting the mother; it can be seen from the translation of the body worn recording how poorly he was able to do this. Notably he himself has required the benefit of an interpreter for himself throughout these court proceedings.

74.   Mrs D speaks and understands Afghan Dari. Farsi has frequently been the language elected by others for Mrs D despite it not being her primary language. This has resulted in misunderstanding and incorrect accounts being recorded and embedded in the evidence. This is of particular concern around the evolution of a timeline of "dates" apparently being given by the mother in circumstances when we know her difficulties in that regard.

75.   In every alleged non accidental injury case, such as this, the court will focus on the accounts given by the parents, both individually and separately, from the initial admission through to trial. Those accounts will be scrutinised for contradictions and/or changes to the account over time particularly in light of the professional medical expert opinion. That exercise is extremely challenging in this case. It is only in the latter stages of the case that the full extent of the poor and inaccurate recording of, particularly, Mrs D evidence has come to light. This has involved the re-translation of a number of key police documents by a Dari interpreter. It is now clear that her answers were not transposed correctly even when dealing with the simplest of questions. By way of an example - when asked when something happened her answer of "I don't know "was translated as "yesterday".

76.   Mrs D has had the benefit of an Afghan Dari speaking interpreter throughout the hearing and in giving evidence. She has been able to fully participate in this hearing. It does not however correct the earlier errors by multiple agencies who failed to identify the correct language/ provide adequate services for the mother to provide her account. It was notable that with the support of her interpreter she was able to give a flowing narrative account from the witness box.

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125.      Given the obvious language difficulties and now documented issues with translation it is entirely possible that the parents did not properly understand what they were being told "to do" or "not do" when this was demonstrated at the hospital.

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https://www.bailii.org/ew/cases/EWFC/HCJ/2024/438.pdf