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England and Wales High Court (Family Division) Decisions |
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You are here: BAILII >> Databases >> England and Wales High Court (Family Division) Decisions >> A Local Authority v S [2004] EWHC 1270 (Fam) (27 May 2004) URL: https://www.bailii.org/ew/cases/EWHC/Fam/2004/1270.html Cite as: [2004] EWHC 1270 (Fam) |
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FAMILY DIVISION
Strand, London, WC2A 2LL |
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B e f o r e :
Between :
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A Local Authority |
Applicant |
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- and - |
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S |
1st Respondent |
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-and- |
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W |
2nd Respondent |
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-and- |
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T by his Guardian |
3rd Respondent |
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Janet Bazley & Sharon Segal (instructed by Atkins Hope Solicitors) for the 1st Respondent
Marianna Hildyard QC & Jacqui Gilliatt (instructed by Latif Adams Solicitors) for the 2nd Respondent
Alison Ball QC & Emma Hudson (instructed by Creighton & partners) for the 3rd Respondent
Hearing dates : 21st April – 10th May, 2004
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Crown Copyright ©
Mr Justice Hedley :
Introduction
The Criminal Trial and Civil Proceedings
The burden and Standard of Proof in Family Proceedings
"The legal burden of establishing the existence of these conditions rests on the applicant for a care order. The general principle is that he who asserts must prove. Generally, although there are exceptions, a plaintiff or applicant must establish the existence of all the preconditions and other facts entitling him to the order he seeks. There is nothing in the language or context of section 31(2) to suggest that the normal principle should not apply to the threshold conditions"
He deals too with the standard of proof and in the now well known passage (page 96B-E) he says this:
"Despite their special features, family proceedings remain essentially a form of civil proceedings. Family proceedings often raise very serious issues, but so do other forms of civil proceedings.
The balance of probability standard means that a court is satisfied an event occurred if the court considers that, on the evidence, the occurrence of the event was more likely than not. When assessing the probabilities the court will have in mind as a factor, to whatever extent is appropriate in the particular case, that the more serious the allegation the less likely it is that the event occurred and, hence, the stronger should be the evidence before the court concludes that the allegation is established on the balance of probability. Fraud is usually less likely than negligence. Deliberate physical injury is usually less likely than accidental physical injury. A step-father is usually less likely to have repeatedly raped and had non-consensual oral sex with his under age stepdaughter than on some occasion to have lost his temper and slapped her. Built into the preponderance of probability standard is a generous degree of flexibility in respect of the seriousness of the allegation.
Although the result is much the same, this does not mean that where a serious allegation is in issue the standard of proof required is higher. It means only that the inherent probability or improbability of an event is itself a matter to be taken into account when weighing the probabilities and deciding whether, on balance, the event occurred. The more improbable the event, the stronger must be the evidence that it did occur before, on the balance of probability, its occurrence will be established. Ungoed-Thomas J. expressed this neatly in In re Dellow's Will Trusts [1964] 1 W.L.R. 451, 455: "The more serious the allegation the more cogent is the evidence required to overcome the unlikelihood of what is alleged and thus to prove it.""
He also draws attention to another matter. A criminal trial is, of course, governed by the rules of criminal evidence. In family proceedings the range of evidence available to a judge is much wider. Lord Nicholls makes this point (page 101A-C) where he says this:
"I must now put this into perspective by noting, and emphasising, the width of the range of facts which may be relevant when the court is considering the threshold conditions. The range of facts which may properly be taken into account is infinite. Facts include the history of members of the family, the state of relationships within a family, proposed changes within the membership of a family, parental attitudes, and omissions which might not reasonably have been expected, just as much as actual physical assaults. They include threats, and abnormal behaviour by a child, and unsatisfactory parental responses to complaints or allegations. And facts, which are minor or even trivial if considered in isolation, when taken together may suffice to satisfy the court of the likelihood of future harm. The court will attach to all the relevant facts the appropriate weight when coming to an overall conclusion on the crucial issue."
These are all factors binding on every trial judge conducting family proceedings.
"We understand that in many applications for care orders counsel are now submitting that the correct approach to the standard of proof is to treat the distinction between criminal and civil standards as 'largely illusory'. In our judgment this approach is mistaken. The standard of proof to be applied in Children Act cases is the balance of probabilities and the approach to these difficult cases was laid down by Lord Nicholls in his speech in re H. ………..and the principles set out by Lord Nicholls should continue to be followed by the judiciary trying family cases and by magistrates sitting in the Family Proceedings Courts."
It follows that in this case I approach this case on the balance of probabilities reminding myself of the inherent improbability of a loving step father inflicting fatal violence on a child of 20 months of age and thus reminding myself of the cogency of the evidence that will be required to overcome that improbability.
The Court's Approach in Family Proceedings to Disputed Medical Evidence
"27. In the end the Judge must make clear findings on the issues of fact before the Court, resting on the evidence led by the parties and such additional evidence as the Judge may have required in the exercise of his quasi-inquisitorial function. All this is the prelude to a further and fuller investigation of a range of choices in search of the protection and welfare of the children. A positive finding against a parent or both parents does not in itself preclude the possibility of rehabilitation. All depends on the facts and circumstances of the individual case. In that context the consequences of a false positive finding in care proceedings may not be as dire as the consequence of the conviction of an innocent in criminal proceedings.
28. So it by no means follows that an acquittal on a criminal charge or a successful appeal would lead to the absolution of the parent or carer in family or civil proceedings. It is also worth remembering that the decision of the Court of Appeal (Criminal Division) in R v Cannings turned on the very particular facts of that case.
29. In summary the decision of the Court in R v Cannings has no doubt provided a useful warning to judges in care proceedings against ill-considered conclusions or conclusions resting on insufficient evidence. The extent of the retrospective effect remains to emerge. However practitioners should be slow to assume that past cases which have been carefully tried on a wide range of evidence will be readily reopened."
The Background to the Life of X
The Events Surrounding The Fatal Injury
The Injuries Sustained by X on 20th October 2002
In addition the following significant findings were made:
In assessing these injuries it is important to remember both that emergency treatment of an unconscious child can be quite violent and that toddlers will often bear bruises of an entirely innocent origin. Other than bruising to the forehead and mesentery, the medical evidence was noticeably cautious in its approach to the timing and causation of bruising.
The Mechanism of the Head Injury
The Causation of The Head Injury
Assessment of W's Evidence
Conclusion on Causation of The Non-Fatal Injuries
Conclusions on Causation of Head Injuries
What Actually Happened
Was the Mother Culpable for What Happened to X?
Conclusion