RE T (ABUSE: STANDARD OF PROOF) [2004] EWCA Civ 558
FACTS:-
A child aged 20 months was taken to the accident and emergency department of a local hospital, where a paediatric consultant identified a very recent perineal tear. A later examination identified a number of anal fissures. Interim care orders were made in respect of the child and an older sibling.
There were three experts who gave evidence. The first was Dr G, the consultant paediatrician who examined the child on the day after she was taken to accident and emergency and the others were consultant paediatricians instructed as experts, Dr P and Dr W. All three produced reports and discussed their findings with each other. Neither Dr P nor Dr W was able to examine the child and Dr W was unable to have proper access to the photographs. He gave his first opinion before seeing the photographs and then after months of delay, he saw some of the photographs. When Dr W and Dr P discussed the case they did not know that they had not seen the same photographs, and they came to different conclusions. It was only when Dr W came to trial and was shown all the photographs that he then changed his opinion.
Dr P concluded that the probability of sexual abuse was higher than a straddle injury. She said that she was more than 50% certain and that in her professional view this was sexual abuse. Dr W originally considered that the evidence for either type of injury (sexual abuse/straddle injury) was fairly scant, but straddle injury was more probable. However after seeing the photographs for the first time at court, he accepted the accuracy of the first doctor, Dr G’s findings.
The judge formed the view that Dr W’s change of mind had the effect of emphasising the difficulty the expert had in reaching conclusions with any real degree of certainty. The suspicions and concerns expressed by the doctors did not provide evidence strong enough to discharge the burden of proof.
The child’s family had given a consistent account of the events prior to the disclosure of the injuries. The child’s mother had acted responsibly in seeking medical assistance and the child showed no sexualised behaviour.
The judge referred also to the Royal College of Physicians booklet entitled “Physical Signs of Sexual Abuse in Children.”
The local authority, supported by the guardian sought permission to appeal on the question of the standard of proof to be applied.
HELD:-
Dame Elizabeth Butler-Sloss reviewed the authorities in this area. She said that the test to be applied in care cases was set out in the speech of Lord Nicholls of Birkenhead in Re H (Minors) (Sexual Abuse: Standard of Proof) [1996] AC 563. Lord Nicholls had said that the standard of proof required in non-criminal proceedings was the “preponderance of probability” usually referred to as the balance of probability. Family proceedings under sections 8(3) and 105 of the Children Act 1989 were no exception.
The balance of probability standard meant that a court was satisfied an event occurred if the court considered that, on the evidence, the occurrence of the event was more likely than not. When assessing the probabilities the court would have in mind as a factor, to whatever extent was appropriate in the particular case, that the more serious the allegation the less likely it was that the event occurred and hence, the stronger should be the evidence before the court decided that the allegations were established on the balance of probability.
Dame Butler-Sloss said that the definition put forward by Lord Nicholls had been refined. The case of B v Chief Constable of Avon and Somerset Constabulary [2001] 1 WLR 340 had concerned an appeal against the making of a sex offender order under section 2 of the Crime and Disorder Act 1998. Lord Bingham had said that in a serious case, the difference between the two standards of proof (criminal and civil) were largely illusory. The magistrates’ court in this case should apply a civil standard of proof with the strictness appropriate to the seriousness of the matters to be proved and the implications of proving them.
In R (McCann and Others) v Crown Court at Manchester; Clingham v Kensington and Chelsea Royal London Borough Council [2002] UKHL 39 the House of Lords was concerned with section 1 of the 1998 Act in relation to anti-social behaviour. Lord Steyn held that the applications under section 1 came under the civil process and were not criminal proceedings. However in his view, pragmatism dictated that the task of the magistrates should be made more straightforward by ruling that they must in all cases under section 1 apply the criminal standard.
Re ET (Serious Injuries: Standard of Proof), Note [2003] 2 FLR 1205 concerned an application for a care order under section 31 of the Children Act 1989 where a baby had sustained skull, brain and other injuries alleged to be at the hands of her parents. Bodey J had said that the civil standard should be applied and that in this very serious case, the difference between the civil and the criminal standard of proof was very largely illusory.
Dame Butler Sloss said that it had been submitted that the correct approach to the standard of proof was to treat the distinction between criminal and civil standards as “largely illusory.” In her judgment, that approach was mistaken. The approach to these Children Act cases was the balance of probabilities and was set out in the speech of Lord Nicholls of Birkenhead in his speech in Re H (Minors) (Sexual Abuse: Standard of Proof) [1996] AC 563. That test had not been adjusted or varied by later cases, which were considering applications made under a different statute. There would be no good reason to leap across a division between crime and preventative measures taken to restrain Defendants for the benefit of the community and wholly different considerations of child protection and child welfare. The strict rules of evidence in a criminal case (which was adversarial in nature) were to be contrasted with the partly inquisitorial approach of the court dealing with children cases.
In this case, the judge had allowed himself to elide the distinction between care proceedings and criminal proceedings in considering the allegations of sexual abuse. He was relying on a perceived requirement of certainty or near certainty of the experts’ conclusions in their evidence. Dame Butler-Sloss referred to the judgment of Thorpe LJ in Re B (Non-Accidental Injury) [2002] EWCA Civ 752 where it was said that the judge had to consider whether the child was suffering or likely to suffer significant harm. The medical expert was there to guide the judge as to the relevant medical and scientific knowledge.
Dame Butler-Sloss expressed concern about the fact that the medical expert, Dr W did not have the opportunity to see and examine the child. This had had serious consequences in terms of extra hearings and cost. There should be suitable local protocols to enable all photographs to be released as soon as possible.
She also said that a judge in these difficult cases should have regard to the relevance of each piece of evidence to other evidence and to exercise an overview of the totality of the evidence.
Therefore the case should be re-heard.
FACTS:-
A child aged 20 months was taken to the accident and emergency department of a local hospital, where a paediatric consultant identified a very recent perineal tear. A later examination identified a number of anal fissures. Interim care orders were made in respect of the child and an older sibling.
There were three experts who gave evidence. The first was Dr G, the consultant paediatrician who examined the child on the day after she was taken to accident and emergency and the others were consultant paediatricians instructed as experts, Dr P and Dr W. All three produced reports and discussed their findings with each other. Neither Dr P nor Dr W was able to examine the child and Dr W was unable to have proper access to the photographs. He gave his first opinion before seeing the photographs and then after months of delay, he saw some of the photographs. When Dr W and Dr P discussed the case they did not know that they had not seen the same photographs, and they came to different conclusions. It was only when Dr W came to trial and was shown all the photographs that he then changed his opinion.
Dr P concluded that the probability of sexual abuse was higher than a straddle injury. She said that she was more than 50% certain and that in her professional view this was sexual abuse. Dr W originally considered that the evidence for either type of injury (sexual abuse/straddle injury) was fairly scant, but straddle injury was more probable. However after seeing the photographs for the first time at court, he accepted the accuracy of the first doctor, Dr G’s findings.
The judge formed the view that Dr W’s change of mind had the effect of emphasising the difficulty the expert had in reaching conclusions with any real degree of certainty. The suspicions and concerns expressed by the doctors did not provide evidence strong enough to discharge the burden of proof.
The child’s family had given a consistent account of the events prior to the disclosure of the injuries. The child’s mother had acted responsibly in seeking medical assistance and the child showed no sexualised behaviour.
The judge referred also to the Royal College of Physicians booklet entitled “Physical Signs of Sexual Abuse in Children.”
The local authority, supported by the guardian sought permission to appeal on the question of the standard of proof to be applied.
HELD:-
Dame Elizabeth Butler-Sloss reviewed the authorities in this area. She said that the test to be applied in care cases was set out in the speech of Lord Nicholls of Birkenhead in Re H (Minors) (Sexual Abuse: Standard of Proof) [1996] AC 563. Lord Nicholls had said that the standard of proof required in non-criminal proceedings was the “preponderance of probability” usually referred to as the balance of probability. Family proceedings under sections 8(3) and 105 of the Children Act 1989 were no exception.
The balance of probability standard meant that a court was satisfied an event occurred if the court considered that, on the evidence, the occurrence of the event was more likely than not. When assessing the probabilities the court would have in mind as a factor, to whatever extent was appropriate in the particular case, that the more serious the allegation the less likely it was that the event occurred and hence, the stronger should be the evidence before the court decided that the allegations were established on the balance of probability.
Dame Butler-Sloss said that the definition put forward by Lord Nicholls had been refined. The case of B v Chief Constable of Avon and Somerset Constabulary [2001] 1 WLR 340 had concerned an appeal against the making of a sex offender order under section 2 of the Crime and Disorder Act 1998. Lord Bingham had said that in a serious case, the difference between the two standards of proof (criminal and civil) were largely illusory. The magistrates’ court in this case should apply a civil standard of proof with the strictness appropriate to the seriousness of the matters to be proved and the implications of proving them.
In R (McCann and Others) v Crown Court at Manchester; Clingham v Kensington and Chelsea Royal London Borough Council [2002] UKHL 39 the House of Lords was concerned with section 1 of the 1998 Act in relation to anti-social behaviour. Lord Steyn held that the applications under section 1 came under the civil process and were not criminal proceedings. However in his view, pragmatism dictated that the task of the magistrates should be made more straightforward by ruling that they must in all cases under section 1 apply the criminal standard.
Re ET (Serious Injuries: Standard of Proof), Note [2003] 2 FLR 1205 concerned an application for a care order under section 31 of the Children Act 1989 where a baby had sustained skull, brain and other injuries alleged to be at the hands of her parents. Bodey J had said that the civil standard should be applied and that in this very serious case, the difference between the civil and the criminal standard of proof was very largely illusory.
Dame Butler Sloss said that it had been submitted that the correct approach to the standard of proof was to treat the distinction between criminal and civil standards as “largely illusory.” In her judgment, that approach was mistaken. The approach to these Children Act cases was the balance of probabilities and was set out in the speech of Lord Nicholls of Birkenhead in his speech in Re H (Minors) (Sexual Abuse: Standard of Proof) [1996] AC 563. That test had not been adjusted or varied by later cases, which were considering applications made under a different statute. There would be no good reason to leap across a division between crime and preventative measures taken to restrain Defendants for the benefit of the community and wholly different considerations of child protection and child welfare. The strict rules of evidence in a criminal case (which was adversarial in nature) were to be contrasted with the partly inquisitorial approach of the court dealing with children cases.
In this case, the judge had allowed himself to elide the distinction between care proceedings and criminal proceedings in considering the allegations of sexual abuse. He was relying on a perceived requirement of certainty or near certainty of the experts’ conclusions in their evidence. Dame Butler-Sloss referred to the judgment of Thorpe LJ in Re B (Non-Accidental Injury) [2002] EWCA Civ 752 where it was said that the judge had to consider whether the child was suffering or likely to suffer significant harm. The medical expert was there to guide the judge as to the relevant medical and scientific knowledge.
Dame Butler-Sloss expressed concern about the fact that the medical expert, Dr W did not have the opportunity to see and examine the child. This had had serious consequences in terms of extra hearings and cost. There should be suitable local protocols to enable all photographs to be released as soon as possible.
She also said that a judge in these difficult cases should have regard to the relevance of each piece of evidence to other evidence and to exercise an overview of the totality of the evidence.
Therefore the case should be re-heard.