B (Children) (Care Proceedings: Standard of Proof) (CAFCASS intervening)
| Jurisdiction | England & Wales |
| Judge | Lord Justice Thorpe,Lord Justice Wilson,Mrs Justice Black |
| Judgment Date | 29 January 2008 |
| Neutral Citation | [2008] EWCA Civ 282 |
| Docket Number | Case No: B4/2007/2905 |
| Court | Court of Appeal (Civil Division) |
| Date | 29 January 2008 |
[2008] EWCA Civ 282
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE PRINCIPAL REGISTRY OF THE FAMILY DIVISION
(MR JUSTICE CHARLES)
Royal Courts of Justice
Strand, London, Wc2a 2ll
Lord Justice Thorpe
Lord Justice Wilson and
Mrs Justice Black
Case No: B4/2007/2905
Miss M Hildyard QCMiss I Watson (instructed by Gregory Rowcliffe Milners & Church Bruce) appeared on behalf of the Applicant Father.
Mr S Cobb QCMr S Fuller (instructed by Stantons) appeared on behalf of the Respondent
The local authority in Medway commenced care proceedings in relation to the B family in the autumn of the year 2006, in the midst of private law proceedingsas a direct consequence of a Section 37 direction that had been given in those proceedings.
The first major stage in the care proceedings was a fact finding hearing conducted by Charles J over 30 days of court sitting in the months of JuneJuly 2007. It seems that 25 of the days were given to oral evidence5 to submissions. The judge heard the oral evidence of approximately 20 witnesses. The judge reserved his decision on the last day of the Trinity Termhanded down his reserved judgment on 19 October. He found the Section 31 threshold crossed in a number of respects, but one issue that had been critically fought during the 25 days of trial was whether the 15-year-old stepdaughteradopted daughter of Mr B had been sexually abused. As to that, the judge concluded:
“i) I cannot make a properly foundedreasoned conclusion that it is more likely than not that R was sexually abused by Mr B as she alleges or substantially as she alleges,thus that she is telling the truth,
ii) I cannot make a properly foundedreasoned conclusion that it is more likely than not that R was not sexually abused by Mr B,thus that Mr B is telling the truth…”
Later the judge stated his position thus:
“iv) On an approach founded on evidencereasoning,not on suspicion and/or concern, I am unable to conclude that there is no real prospect that Mr B sexually abused R as she asserts or substantially as she assertsI have therefore concluded that there is a real possibility that he did.”
These conclusions resulted from the judge's assessment of most if not all family members as being unreliable witnesses,his difficulties were compounded by a family tradition of raising allegationscounter-allegations that had no firm foundation in fact. So, what was to be done with the essential preparations for a welfare hearing? The judge was very troubled by the position in which he found himself, given the impact of a trilogy of cases in the House of Lords: Re HR [1996] 1 FLR 80; Lancashire County Council v B [2000] 1 FLR 589; Re ON, Re B [2003] 1 FLR 1169.
Accordingly he invited high level assistance from the Bar,at that stage the guardian, who had been represented by Mr Fuller, brought in Mr Stephen Cobb QC to lead,I think Miss Pamela Scriven QC came in to lead for R. The judge set aside five days to hear submissions from leading counsel on the authoritieshow they compelled the judge's further directions for the preparation of the welfare hearing. That process commenced on 12 November,after three days of argument some directions emerged in the second half of November but the judge reserved his conclusions to another judgment, handed down 11 December.
In paragraph 41 of that judgment, the judge concluded that the letter of instruction to the two experts, who it was agreed should be instructed, should be in terms which he set out extensively:
“you will have seen from the summary set out in the paragraphs above that one of the central issues in the case was whether [R] has been sexually abused by [Mr B].
You will also have seen that Mr Justice Charles was not able to...
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