Re H (A Minor); Re K (Minors) (Child Abuse: Evidence)

JurisdictionEngland & Wales
JudgeLORD JUSTICE CROOM-JOHNSON,LORD JUSTICE BUTLER-SLOSS,LORD JUSTICE STUART-SMITH
Judgment Date25 May 1989
Judgment citation (vLex)[1989] EWCA Civ J0525-8
Docket Number89/0521
CourtCourt of Appeal (Civil Division)
Date25 May 1989
Re "H" (A Minor)
Re "K" (Minors)

[1989] EWCA Civ J0525-8

Before:

Lord Justice Croom-Johnson

Lord Justice Butler-Sloss

Lord Justice Stuart-Smith

89/0521

IN THE SUPREME COURT OF JUDICATURE

COURT OF APPEAL (CIVIL DIVISION)

Royal Courts of Justice

ON APPEAL FROM THE THANET COUNTY COURT

(HIS HONOUR JUDGE NEWMAN Q.C.)

ON APPEAL FROM THE EDMONTON COUNTY COURT

(HIS HONOUR JUDGE TIBBER)

MISS A. M. RYAN Q.C. and MR. A. M. SNELSON (instructed by Messrs. Daniel & Edwards, Ramsgate, Kent) appeared for the Appellant (Father) in Re "H".

MR. DONALD HART Q.C. and MR. STEVEN JOHNSON (instructed by Messrs. Robinson & Allfree, Ramsgate, Kent) appeared for the Respondent (Mother) in Re "H".

MISS E. A. LAWSON Q.C. (instructed by Messrs. Girlings) appeared for the Intervener in Re "H".

MR. DAVID PRICE (instructed by Messrs. S. J. Burton & Co.) appeared for the Appellant (Father) in Re "K".

MISS C. J. HARDING (instructed by Messrs. Percy Short & Cuthbert) appeared for the Respondent (Mother) in Re "K".

MR. N. P. PLEMING (instructed by Messrs. Hodge Jones & Allen) appeared for the Intervener in Re "K".

LORD JUSTICE CROOM-JOHNSON
1

I have read in draft the judgment of Butler-Sloss L.J. and gratefully accept her statements of the backgrounds and facts of these two cases. I add my own views on the two important legal issues.

2

THE BURDEN OF PROOF

3

One matter of law which is common to both appeals is the burden of proof in cases where there is an allegation of abuse of children, either physical or sexual. The proof of such allegations has always been treated as being dependent on the civil burden of proof, that is on a balance of probabilities. It was so accepted by the Court of Appeal in Re R (a minor) (1988) 1 F.L.R. 206. But In Re G (a minor) (1987) 1 W.L.R. 1461, Sheldon J. proposed a variation. At page 1466 he said that, although a balance of probablities was generally correct, yet:

"having regard to the diversity of issues that might be raised in such proceedings, I also take the view, as was expressed by Denning L.J., in Bater v. Bater (1951) P. 35, that the 'degree of probability' required in any particular context may vary and must be 'commensurate with the occasion' or 'proportionate to the subject matter' Thus in my opinion, in such proceedings as the present, a higher degree of probability is required to satisfy the court that the father has been guilty of some sexual misconduct with his daughter than would be needed to justify the conclusion that the child has been the victim of some such behaviour of whatever nature and whoever may have been its perpetrator."

4

Bater v. Bater was an appeal on the standard of proof applied in a divorce on the ground of cruelty. Bucknill L.J. and Somervell L.J. contented themselves with saying shortly that no wrong test had been applied. Denning L.J., in a longer judgment, discussed the different forms of words used in civil and criminal cases. He suggested that, when a divorce court was dealing with allegations which were of a criminal nature, it should require a higher degree of probability than the ordinary civil standard and should "require a degree of probability which is proportionate to the subject-matter".

5

This was approved by the Court of Appeal in Hornal v. Neuberger Products Ltd. (1957) 1 Q.B. 247—but the test which is appropriate is still the balance of probabilities, as applied to the facts of each case.

6

Sheldon J. went on to suggest that, even if no sexual abuse were proved against the father, "the very fact that it has been alleged by a child against a parent suggests that in the child's interests, some change in, or control over, the existing regime is required". Put baldly in that way, that cannot be right. Sheldon J. also dealt with the risk of abuse in the future even where no formal proof could be provided. That problem has now been considered by the Court of Appeal.

7

In Re F (minors) (1988) 2 F.L.R. 123, Hollis J. had to consider an appeal against an order of wardship of three girls. After hearing much medical and other evidence, he concluded that the medical evidence (on which alone the orders had been made) was so doubtful that it was insufficient. He expressed himself in this way. "I would not be justified in holding that there was a real possibility that any of these children…had suffered penetration per anum". That finding clearly meant that the civil standard of proof had not been reached. However, he did not deward the children, because he considered it wise to be cautious. He continued the wardship, with care and control to the parents upon their undertaking to take the children for three monthly medical check-ups to their own general practitioner. He said: "I think that is really consistent with what Sheldon J. is saying.…I do not consider that a probability has to be shown but a real possibility". In a later passage the judge said in relation to his medical findings: "the question is, on all the evidence, is there a real possibility that these children, or any of them, have been sexually abused per anum?"

8

The parents appealed. They wanted their children dewarded. The Court of Appeal, Purchas L.J. and Nourse L.J. (Dillon L.J. dissenting) held that there was no evidential basis for justifying the judge's concern and his decision to exercise caution in continuing the wardship of the three children. They dewarded the children.

9

Unfortunately, Hollis J., in saying that only a real possibility of abuse had to be shown and not a probability, was referring in those three passages of his judgment both to the proof of abuse in the past and to the risk of abuse in the future. Purchas L.J. emphasised that it was clear that the judge, in saying that only a real possibility needed to be shown, was acting on a standard of proof which was less than a balance of probability.

10

Counsel for the parents in that appeal was not interested in whether abuse in the past had been shown. It had not been. He was only interested in whether there was any justification for thinking it might be possible in the future. But it seems he accepted the judge's finding that there was no real possibility that abuse had taken place in the past. If not even that had been proved, on a lower standard of proof than the normal one, he was in a strong position as to the future. And so it proved. But what Re F (Minors) decided (and needed to decide) was what needed to be proved to show a risk as to the future sufficient to justify the continuance of wardship, and no more than that. I do not regard it as authority that, when the court is deciding what happened in the past, all that need be shown is that there is real risk that the allegations might be true. That was not argued.

11

The dicta in Re F (Minors), however, have led to a submission to us, in Re H, that to prove abuse in the past only a real possibility need be shown, and no more.

12

In Re K, Miss Price took issue with that fallacy. She submitted that the onus of proof in all civil cases is on the balance of probabilities and that, if it is not reached, the facts alleged (be they abuse or anything else) have not been proved. If they are proved, the judge must find whatever facts he considers proper, and it is upon those that he must then exercise his discretion. In exercising his discretion he will give effect to the rule that the welfare of the child is paramount, but he will not employ the "paramount" rule in reaching his findings of fact. Having made his findings about the past, he must then consider the future. The future is not susceptible to proof in the same way. All the judge can do is assess the risks of what may happen, and Re F is authority that there must be an evidential basis for that. Fanciful risks will not do.

13

The difficulty of proving what will happen in the future is closely analogous to the assessment of damages in actions for negligence. In Mallett v. McMonagle (1970) A.C. 166 Lord Diplock said at page 176:

"In determining what did happen in the past a court decides on the balance of probabilities. Anything that is more probable than not it treats as certain. But in assessing damages which depend upon its view as to what will happen in the future or would have happened in the future if something had not happened in the past, the court must make an estimate as to what are the chances that a particular thing will or would have happened and reflect those chances, whether they are more or less than even, in the amount of damages which it awards."

14

The way in which those chances are used is well illustrated by cases where an injured plaintiff is left with a chance that later he may develop epilepsy. It cannot be proved at all that he will develop it, but if there is a chance then he is compensated for that risk. A plaintiff with a 30 per cent chance recovers more money than a plaintiff with a 5 per cent chance. This reasoning applies to the assessment of the risk that a child may be abused in the future. The assessment is made at the time of trial, but the standard of proof is not on the balance of probabilities. It is made on the lines adopted in Re F.

15

Miss Price's submission is clearly correct.

16

The onus of proof in both these cases, Re H and Re K, should be applied accordingly in deciding on a balance of probabilities whether the father in each case was guilty of sexually abusing his children.

17

HEARSAY

18

The second important question of law applies only to Re K.

19

There is no doubt that if the evidence of Miss Howes of statements made to her by T. and M. was admissible against their uncle there was ample evidence against him of sexual abuse practised by him on his niece and nephew and on his own daughter A. Without that evidence the situation is very different. The...

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