A Local Authority v S (1st Respondent) W (2nd Respondent) T by His Guardian (3rd Respondent)
| Jurisdiction | England & Wales |
| Judge | Mr Justice Hedley |
| Judgment Date | 27 May 2004 |
| Neutral Citation | [2004] EWHC 1270 (Fam) |
| Court | Family Division |
| Date | 27 May 2004 |
| Docket Number | Case No: GU03C00381 |
[2004] EWHC 1270 (Fam)
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
The Honourable Mr Justice Hedley
Case No: GU03C00381
and
and
Eleanor Platt QC & Andrew Norton (instructed by a local authority) for the Applicant
Janet Bazley & Sharon Segal (instructed by Atkins Hope Solicitors) for the 1 st Respondent
Marianna Hildyard QC & Jacqui Gilliatt (instructed by Latif Adams Solicitors) for the 2 nd Respondent
Alison Ball QC & Emma Hudson (instructed by Creighton & partners) for the 3 rd Respondent
Hearing dates: 21 st April – 10 th May, 2004
Introduction
Having decided to give this judgment in open court, I must emphasise that nothing must be reported which might reasonably lead to the identification of any child or parent in this case. I have gone into open court because this case raises a number of matters which I think should be in the public domain. It involves the death of a child said to be the result of shaken baby syndrome. It involves a degree of disagreement between eminent and highly responsible medical experts. The man at the centre of this has already been tried for and acquitted of both murder and manslaughter yet the family court is apparently retrying the same issue with the inevitable possibility of arriving at a different view. This seems to me a good case in which the workings of the family court should be made public so that proper public discussion can take place on the basis of known rather than speculative procedures.
The family proceedings have come about because the local authority seeks a care order in respect of a child called T who is now 15 months old. Her mother is S and her father W, the man to whom I have already referred. T is currently subject to an interim care order whilst the court decides her future.
The mother had another child X. W was not her father but at the material time he lived with the mother and acted as a father to X. On 20 th October 2002 X suffered fatal brain injuries from which she died the following day. No universally acceptable explanation has ever been given for these injuries beyond the fact that they appear to have been sustained whilst in the care of W.
It was because of this that these proceedings were started in relation to T. Until it is known how X came to suffer fatal injury, it is impossible to say whether T is at risk of injury and, if so, how great that risk is or whether it is capable of safe management.
The Criminal Trial and Civil Proceedings
In 2003 W was acquitted of the murder or manslaughter of X. On the face of it this hearing has tried the same issue again; why is that and is it open to this court to come to a different view?
In the criminal proceedings, the jury, having heard the admissible evidence, had to decide whether they were sure that this man had used criminal violence to this child which brought about her death. They decided that they were not sure: no more than that can be read into the verdict. They may have decided that he was in fact innocent or they may have decided that he was very probably guilty but that they could not be sure of it. We do not know. Their verdict does not give us the answer nor could it.
In family proceedings, however, the judge's task is quite different. In the end I will have to decide whether the surviving child T can be safely returned to one or both of her parents. In order to decide that, I need to reach views about why X died and the question I have to ask is this: what was the most probable cause of her death? That is very different to the question faced by the jury both in terms of its emphasis (they were primarily concerned with W as the defendant whilst I am primarily concerned with the child) and in terms of the standard of proof. They had to be sure of guilt; I have to determine the probabilities and give detailed reasons for my view. Moreover I have heard a much wider range of evidence than would have been admissible in the criminal trial.
It will be apparent then, however odd it may seem at first blush, that I could give a different answer to the one given by the jury yet both of us could have correctly answered the questions actually posed to us. Truth is an absolute but elusive concept and the law, in recognising that, deals with it in terms of what can be proved. The fact that something cannot be proved does not mean it did not happen but only that it cannot be proved to the requisite standard that it did. That is the price society has to pay for human fallibility in the quest for truth.
The burden and Standard of Proof in Family Proceedings
I start then with this question of proof. Although very serious issues are raised in family proceedings, they remain nevertheless civil proceedings. They are subject to civil and not criminal rules of evidence and the civil law relating to proof. That said, the court can only make findings of fact where the evidence justifies these findings: anxiety or concern as to risk to the child, however great, cannot justify a finding in the absence of evidence. Thus in care proceedings the local authority as applicant must prove facts (known as threshold criteria) which justify the State's intervention in family life pursuant to Section 31(2) Children Act 1989. That properly reflects the approach also required by Articles 6 and 8 of the European Convention (ECHR).
The classical statement of the law on these points is to be found in the speech of Lord Nicholls of Birkenhead in the House of Lords case known as Re H and R (Child Sexual Abuse: Standard of Proof) [1996] 1 FLR 80. In that speech Lord Nicholls lays down the approach outlined above. He makes it clear where the burden of proof lies (page 95G), that these remain civil proceedings (page 96A; he makes it clear that findings can only be based on proved facts and at page 99G-H, he says this:
"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.
Nevertheless the question remains: if a court is in fact trying an issue...
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