Re O and N (Children) (Non-Accidental Injury: Burden of Proof)
| Jurisdiction | UK Non-devolved |
| Judge | LORD SCOTT OF FOSCOTE,LORD NICHOLLS OF BIRKENHEAD,LORD WALKER OF GESTINGTHORPE,LORD MILLETT,LORD HOFFMANN |
| Judgment Date | 03 April 2003 |
| Neutral Citation | [2003] UKHL 18 |
| Court | House of Lords |
| Date | 03 April 2003 |
[2003] UKHL 18
The Appellate Committee comprised:
Lord Nicholls of Birkenhead
Lord Hoffmann
Lord Millett
Lord Scott of Foscote
Lord Walker of Gestingthorpe
HOUSE OF LORDS
My Lords,
These two appeals relate to care proceedings under the Children Act 1989. They relate to a type of case which, regrettably, occurs all too frequently.
The context is the 'uncertain perpetrator' type of case, where a child suffers physical harm at the hands of his parents but the court is unable to identify which parent was the perpetrator or, indeed, whether both were perpetrators. The threshold criteria are met. The court so decides at a preliminary 'fact finding' hearing, and the case then proceeds to the 'welfare' stage and a 'disposal' hearing. In one of the two appeals before your Lordships' House Thorpe LJ expressed himself to the effect that at the disposal hearing in such a case the judge cannot disregard the risk the mother presents as a primary carer for the child in question. In the other appeal Ward LJ said the case should proceed on the basis that the child was not harmed by the mother and that there is no risk of the child suffering physical harm from her.
These appeals arise from this difference in approach of two lords justices, both highly experienced in this field. Disposal hearings have yet to take place. The appeals concern the basis on which these hearings should be conducted.
I must first rehearse the facts of the two cases. I shall do so in very summary form, since the detail is not material for the purpose of these appeals. The appeals raise a point of principle.
Child Y
In December 2000 child K, just over a year old, was admitted to hospital and pronounced dead on arrival. He had sustained an appalling catalogue of serious external and internal non-accidental injuries, inflicted on at least four occasions. The local authority commenced care proceedings in respect of child Y, child K's elder sister. Child Y, then six years old, was eventually placed with her grandmother. Child Y has daily contact with her mother, supervised by the family. The mother's partner KR left the mother's home in December 2001, and the relationship between them appears to have ended.
The case proceeded as a 'split' hearing. At the preliminary hearing Coleridge J found that KR was the perpetrator of all the injuries, that the mother could be exonerated as a perpetrator and that she had not failed to protect child K at any stage of his life. The Court of Appeal, comprising Thorpe, Rix and Arden LJJ, allowed an appeal by the local authority: see re B (Non-accidental injury: compelling medical evidence) [2002] EWCA Civ 902, [2002] 2 FLR 599. The court held that KR was a perpetrator, but there was insufficient evidence he was the sole perpetrator. Thorpe LJ said that following the filing of the position statements there were really only two questions regarding child K's death. He said, at [2002] 2 FLR 599, 607:
"First, who perpetrated the injuries recorded by the experts? The answer to that can only be, 'either the mother or KR'. The court is unable to determine to the requisite standard which. Secondly, who failed to protect K from these injuries? Again, there can be no doubt that the mother failed to protect. KR is not involved in any way in the disposal proceedings which will follow. He is the more probable perpetrator in relation to most of these injuries. But the important factor that the judge must bring into the foundation for the disposal hearing is that he cannot disregard the risk that the mother presents as a primary carer for either Y or a future child" (Emphasis added).
After further observations Thorpe LJ concluded:
"So the judge when he comes to the disposal hearing will obviously have to consider anxiously the obvious attraction of rehabilitation against the question mark which certainly attaches to the mother, at least during that period when she was in cohabitation with KR."
Child L and child C
In the other case, in May 2001 child L, then aged six months, was found to be suffering from a fractured skull and several other fractures. The injuries could only have occurred whilst the child was in the care of her parents. The parents separated after child L was admitted to hospital. The father pleaded guilty to charges of causing grievous bodily harm and was sentenced to concurrent sentences of 3½ years and 2 years imprisonment. The father subsequently retracted his admission of responsibility for any injury other than the fracture to the skull. Child C, born in October 2001, is the second child of the mother and father. The local authority commenced care proceedings in respect of both children.
At a preliminary hearing in April 2002 Her Honour the late Judge Downey found that the injuries were non-accidental, that the father was responsible for the fracture to the skull, that no reliance could be placed on his plea of guilty to the criminal charge relating to the other injuries, that neither parent gave any explanation to account for the other injuries, that neither parent could be exculpated as a possible perpetrator, that the injuries were caused by either or both parents whilst the child was in their care, and that the parents individually or jointly failed to protect the child.
An appeal by the mother to the Court of Appeal, comprising Ward LJ and Sir Martin Nourse, succeeded in part: see re O and N (Care: preliminary hearing) [2002] EWCA Civ 1271, [2002] 2 FLR 1167. The court did not disturb any of the judge's findings, but in the course of his judgment Ward LJ said, at [2002] 2 FLR 1167, 1178, paragraph 26:
"In my judgment this case must proceed henceforth upon the clear basis and understanding by all concerned, lawyers, social workers and experts, that L was not harmed by her mother and there is no risk that either L or C is at risk of suffering physical harm from her" (Emphasis added)
The court varied the form of the judge's directions order by adding an opening paragraph which included the following:
"(e) It is not established upon a balance of probabilities that any one or more of these further injuries were caused by either the [mother] or [father]
(f) Accordingly the [mother] must be treated as if she did not cause L to suffer significant harm within the meaning of s 31(2) of the Act.
Moreover she is to be treated as if she has not caused L to suffer any physical harm or caused L or C to be at risk of suffering physical harm from her within the meaning of s 1(3)(e) of the Act.
(g) The [mother] has caused L harm by failing to protect her from injury by the [father].' (Emphasis added)
Past events and future forecasts
Before turning to the provisions of the Children Act 1989 I should make an introductory observation. Courts and tribunals constantly have to decide whether an alleged event occurred. The general rule is that if the likelihood that a past event occurred is proved to the requisite standard the law regards that event as definitely having happened. If not, it is treated as not having happened. In deciding whether proof to the requisite standard has been made out, the decision maker normally has regard to all evidential material which is of probative value.
But the general rule does not always apply. Questions of proof of a past event arise in widely varying contexts. Sometimes the law limits the matters the decision maker may take into account. When this occurs, the reason is legal policy, not the requirements of logic. There may, for instance, be a particular category of matters the decision maker is not permitted to consider. The most obvious example concerns criminal trials. In general, evidence of previous misconduct is not admissible in criminal trials. Although such evidence may have probative value, in general it is excluded from consideration by juries because its probative value is outweighed by the risk of prejudice. This exclusionary rule is subject to exceptions in certain types of cases, where the accused should not be permitted to present himself as a person of good character or where the previous misconduct has particular probative value, for instance, as 'similar fact' evidence.
The same broad principle is applicable when courts or tribunals peer into the future and assess the likelihood that a particular event will occur. This is an inherently imprecise exercise, so far as human conduct is concerned. In theory it is a different exercise from deciding whether somebody did or did not do something in the past. Whether or not an alleged event occurred in the past raises a question of proof. In truth, the event either happened or not. That is not so with a future forecast. The future has not happened, and future human conduct is never certain. But in practice, the past is often as uncertain as the future. The judge cannot know for certain what happened and can only assess the degree of likelihood that something happened. The same is true of the future. The decision maker has to assess the degree of likelihood that an inherently uncertain event will occur. The degree of likelihood—beyond reasonable doubt, more probable than not, real possibility and so on—required in any particular legal context raises a question of legal policy.
Here again, the policy decision on the requisite degree of likelihood is a separate question from the policy decision on the matters the court or tribunal may take into account. As to the latter, the matters a decision maker may take into account are normally bounded only by the need for them to be relevant, that is, they must be such that, to greater or lesser extent, they will assist the decision maker in reaching a rational...
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