Re H and R (Minors) (Proof of Abuse)
| Jurisdiction | England & Wales |
| Judgment Date | 1995 |
| Year | 1995 |
| Date | 1995 |
| Court | Court of Appeal (Civil Division) |
SIR STEPHEN BROWN, P, KENNEDY AND MILLETT, L JJ
Care proceedings – application for order in respect of three children on sole ground that fourth child had been abused – Judge finding on balance of probabilities that fourth child had not been abused – whether Judge had adopted correct approach.
The mother had two children, girls now aged 16 and 13, who were the children of her marriage to the third respondent. The mother and her husband separated in 1982. In 1984 the mother and the second respondent ("the step-father") began to live together. They had two children, girls now aged 9 and 2. In September 1993 the eldest of the four girls made statements alleging long-term and regular abuse by the step-father. The step-father was charged with offences of rape of the eldest girl.
The eldest girl was accommodated by the local authority and in February 1994 the local authority commenced care proceedings in respect of the three younger children. Interim orders were made.
In October 1994 the step-father was tried and acquitted on an indictment containing four counts of rape of the eldest girl. The local authority then proceeded with the care proceedings in respect of the three younger girls. The case as presented by the local authority was upon the sole ground of the alleged sexual abuse of the eldest girl by the step-father. The Judge found that the evidence of the eldest girl was crucial as her allegations comprised the only ground for saying that the threshold criteria under s 31 of the Children Act 1989 were met and that the three younger children were at risk of suffering significant harm. The Judge held that the eldest girl's allegations of abuse had not been proved on the balance of probabilities and dismissed the applications for care orders in respect of the three younger girls.
The local authority, supported by the guardian ad litem, appealed.
Held – dismissing the appeal (Kennedy, LJ dissenting): In the present case there was no evidence that the three younger children had themselves been abused. The case depended solely on the allegation that the eldest child had been sexually abused. In these circumstances, before a finding could be made that the three younger children were likely to suffer significant harm it had to be proved that the allegations of the eldest child were true. The standard of proof required was on the balance of probabilities but the more serious the allegation the more convincing was the evidence needed to tip the balance in respect of it. The Judge had adopted the correct approach.
Statutory provisions referred to:Children Act 1989, ss 31 and 47.
Cases referred to in judgment:Avon County Council v G [1988] FCR 759; sub nom Re G (A Minor) 1 WLR 1461.
B (Children in Care: Contact), Re[1993] 1 FCR 363.
Davies v Taylor [1974] AC 207; [1972] 3 WLR 801; [1972] 3 All ER 836.
F (Minors), Re [1988] FCR 679.
H v H; K v K (Child Cases: Evidence) [1989] FCR 356; [1990] Fam 86; [1989] 3 WLR 933; [1989] 3 All ER 740.
M (A Minor) (Care Proceedings: Appeal), Re[1995] 1 FCR 417.
Newham London Borough Council v AG[1992] 2 FCR 119.
P (A Minor) (Care Proceedings: Evidence), Re[1995] 1 FCR 583.
W (Minors) (Sexual Abuse: Standard of Proof), Re[1994] 2 FCR 759; [1994] 1 FLR 419.
W (Minors) (Wardship: Evidence), Re [1990] FCR 286.
Peter Horrocks for the local authority.
James Turner for the first respondent, the mother.
Allan Levy, QC and Judith Caxton for the second respondent, the mother's cohabitee.
Lindsey Kushner, QC and Mhairi McNab for the guardian ad litem.
The third respondent, the mother's husband, did not appear and was not represented.
SIR STEPHEN BROWN, P.This is an appeal from the judgment of His Honour Judge Davidson, QC, sitting at Nottingham county court on 23 November 1994. The Judge then dismissed applications for care orders, made pursuant to s 31 of the Children Act 1989 by the Nottinghamshire County Council, in respect of three children. D was born on 18 August 1981 and is now 13 years of age. T was born on 14 March 1985 and is now 9 years of age. M was born on 15 April 1992 and is 2¾ years of age. The three girls are all the children of the mother, the first respondent. D is the child of her marriage to Mr H, the third respondent. The two younger girls were born to her as a result of her long-standing association with the second respondent, Mr 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, a girl, C, born in June 1978. She is now 16½ years of age,and is "accommodated" with foster-parents. The mother and Mr H were married in 1979 and they separated in 1982. In 1984 the mother and Mr R commenced living together, and have continued to live together since that date. Although Mr H 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 Mr R, her mother's cohabitee, had been sexually abusing her. C was
interviewed on 22 and 23 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 Mr R, commencing when she was 7 or 8 years of age. The allegations including, 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 13 October 1993, when she was taken to the police station by her mother and Mr 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.
Mr 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 4 November 1993 all four girls were placed on the child protection register. On 3 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 1994, by interim supervision orders.
At the beginning of October 1994 Mr R was tried on an indictment containing four counts of rape, and on 4 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 Mr R. These applications were considered by his Honour Judge Davidson, QC at a hearing, which extended over seven days, and on 23 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 Mr R. At p 4 of the transcript of the judgment, 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 p 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 [Mr. 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 pp 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 Mr R. He said of the mother at p 12, letter C, of the transcript of the judgment:
"I cannot regard her as a witness on whom I can rely ... Mr. [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 Judge then said:
"His evidence is shot through with truculence and exaggeration. He clashed with everybody in the case."
At p 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 p 15, letter E of the transcript of the judgment the Judge...
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