Re H and R (Child Sexual Abuse: Standard of Proof)
| Jurisdiction | England & Wales |
| Judge | THE PRESIDENT,LORD JUSTICE KENNEDY,LORD JUSTICE MILLETT |
| Judgment Date | 14 December 1994 |
| Judgment citation (vLex) | [1994] EWCA Civ J1214-5 |
| Docket Number | 94/1499/F |
| Court | Court of Appeal (Civil Division) |
| Date | 14 December 1994 |
[1994] EWCA Civ J1214-5
(His Honour Judge Davidson)
Before: The President Lord Justice Kennedy and Lord Justice Millett
94/1499/F
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE NOTTINGHAMSHIRE COUNTY COURT
MR P HORROCKS (instructed by County Solicitor, Nottinghamshire County Council, NG1 6DQ) appeared on behalf of the Appellant
MR J TURNER (instructed by German & Soar, Nottingham) appeared on behalf of the 1st Respondent.
MR A LEVY (instructed by Fletchers, 30-32 Bridgesmith Gate Nottingham) appeared on behalf of the 2nd Respondent.
MISS L KUSHNER and MISS MCNAR (instructed by German & Soar, 12 King Street, Nottingham) appeared on behalf of the 3rd Respondent.
GUARDIAN AD LITUM (instructed by German & Soar, 12 King St Nottingham) appeared on behalf of the 4th, 5th and 6th Respondents.
(As approved)
Wednesday, 14th December 1994
This is an appeal from the judgment of his Honour Judge Davidson QC, sitting at Nottingham County Court on 23rd November of this year. The Judge then dismissed applications for care orders, made pursuant to section 31 of the Children Act 1989 by the Nottinghamshire County Council, in respect of three children. D was born on 18th August 1981 and is now 13 years of age. T was born on 14th March 1985 and is now 9 years of age. M was born on 15th April 1992 and is two and three quarters years of age. The three girls are all the children of the mother, the first Respondent. D is the child of her marriage to MH, the Third Respondent. The two younger girls were born to her as a result of her long standing association with the Second Respondent, D R.
The First Respondent, to whom I shall refer as "the mother" in this judgment, also had a child of her marriage to Mr H, named C, born in June 1978. She is now 16 and a half years of age, and is 'accommodated' with foster parents. The mother and MH were married in 1979 and they separated in 1982. In 1984 the mother and D R. commenced living together, and have continued to live together since that date. Although MH was made a Respondent to the care application, in respect of D he has played no part in these proceedings.
In the early part of 1990 the family came to the notice of the Social Services Department of the Nottinghamshire County Council, when complaints were made of possible physical abuse by Mr R. upon C, which she disclosed in school. Mr R. was then described as: "threatening, aggressive and intimidating towards social workers." However, no detailed investigation appears to have then taken place.
In September 1993 the mother of a friend of C reported to the police that C had told her that D R., her mother's cohabitee, had been sexually abusing her. C was interviewed on 22nd and 23rd September 1993 jointly by a police officer and a social worker. She made a full and detailed statement alleging long-term and regular sexual abuse by D R., commencing when she was seven or eight years of age. The allegations included touching, masturbation, oral sex and full intercourse. She was offered a home by her natural father, who had remarried, but she suddenly changed her plans and returned to live with her mother at the beginning of October 1993. There was an attempted retraction of her complaint on 13th October 1993, when she was taken to the police station by her mother and D R. but she very shortly afterwards changed her mind when seen separately by a police officer, and was placed under the protection of the police, and accommodated with foster parents.
D R. was subsequently charged with offences of rape of C. He was bailed, a condition being that he should live at the home of his married daughter (he had children by a former marriage) and that he should not have contact with the three girls, the subject of those proceedings, except under the supervision of social workers.
On 4th November 1993 all four girls were placed on the Child Protection Register. On 3rd February 1994, following a case conference, a decision was made to apply for care orders in respect of the three younger children. Interim Care Orders were made, which were followed, in August of this year, by Interim Supervision Orders.
At the beginning of October of this year D R. was tried on an indictment containing four counts of rape, and on 4th October he was acquitted by the jury on all counts after a very short retirement. C was the principal witness for the Crown at his trial. The County Council then proceeded with the applications for Care Orders in respect of C's three younger sisters, alleging that they must be considered to be at risk, having regard to the alleged persistent and serious sexual abuse of C by D R. These applications were considered by his Honour Judge Davidson Q.C. at a hearing, which extended over seven days, and on 23rd November 1994 he gave judgment dismissing the applications.
The case as presented by the Nottinghamshire County Council was upon the sole ground of the alleged sexual abuse of C by D R. At page four of the transcript of the judgment to be found at page 18 of bundle C before the Court, the judge said:
"They are central to the Local Authority's case because they comprise the only ground for saying that the threshold criteria under the Children Act are met and that the three children with whom I am concerned are at risk. There is nothing else of substance."
In the course of her evidence to the Court the guardian ad litem agreed with this formulation for the case. C gave evidence at the hearing before the judge and at page 3, letter E of the transcript of his judgment. The judge said:
"The child's evidence is crucial. She is totally estranged from her mother now. Indeed, the saddest part of her evidence is where she said "She's not my mum." The reason for this is that she feels that her mother has chosen D [R] against her and does not believe her accusations. She said so in the witness box in no uncertain terms and became so stressed that she marched out of Court in the course of cross-examination in the face of suggestions, which of course had to be put, that she was lying."
At pages 17 and 18 of his judgment, the judge carefully reviewed her evidence and noted what he described as:
"slight pointers to support C."
He turned to consider the evidence of the mother and D R. He said of the mother at page 12, letter C, of the transcript of the judgment, page 26 of bundle C:
"I cannot regard her as a witness on whom I can rely.
…Mr D [R]. I have to say that his credibility, too, was disfigured by a number of plain lies and perhaps, more damagingly, by a series of improbabilities which it was impossible to swallow."
He gave particulars. The learned Judge then said:
"His evidence is shot through with truculence and exaggeration. He clashed with everybody in the case."
At page 15, letter B, of the transcript:
"I have seldom been less impressed by a witness. If the Second Respondent had to prove that there was no sex abuse, the matter would be no contest, but the question is, disbelieving as I do both the mother and the Second Respondent on a number of important matters, can I reach the conclusion which is appropriate to the Local Authority's plan for the children? After all, it does not follow that because the two Respondents are telling material lies I can be satisfied, nevertheless, that [the child] is telling the truth."
At page 15, letter E of the transcript of the judgment (page 29 of bundle C) the learned judge turned to consider "the relevant law." He said:
"At this point, one must consider the relevant law. What finding is it necessary to make to support a conclusion that the threshold criteria are met so as to go on to the second stage and consider making the Care Orders asked for? Is it sufficient for me to find that there is a real risk that C is telling the truth and may well have been abused or must I go further and be satisfied on the appropriate standard of proof that she has, in fact, been so abused? I have been referred to a number of helpful cases, for example, Re W (1994) 1 F.L.R, 419 which make it clear to me that only an express finding of sex abuse will suffice to invoke the threshold criteria.
I next have to consider the appropriate standard of proof, it being conceded that the burden of proof lies on the County Council. There are cases which seem to say that the ordinary civil burden of proof applies mathematically, if crudely expressed, at 51%, just tipping the scale, but a strong line of authority suggests otherwise and requires a higher standard of proof albeit one falling short of the criminal standard. This appears to derive from Dennning LJ as he then was in Bater v. Bater (1951) P.,35. It was there suggested that the standard of proof should be "commensurate with the seriousness of the charges."
The learned Judge went on to refer to the judgment of Sheldon J in Re G (no. 2) (1988) 1 FLR, 314 and he said that that case was approved in later decisions such as Re H (1989) F.L.R. 313, but he added:
"The case of Re W to which I have referred seems to me a case where the Court of Appeal adopted the same approach. The headnote summarises the decision and I read from 419 H:
"The more serious the allegation the more convincing was the evidence that was needed to tip the balance in respect of of. Although it is now settled that in civil proceedings, charges of sexual abuse do not require proof beyond reasonable doubt, the standard of proof to be required was nevertheless commensurate with the serious nature of the issues raised. Charges of sexual abuse in civil proceedings must be proved to a...
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