Re K (Minors) (Alleged Sexual Abuse: Evidence)
| Jurisdiction | England & Wales |
| Judgment Date | 1996 |
| Year | 1996 |
| Date | 1996 |
| Court | Family Division |
WALL, J
Child case – application by father for contact – allegation of sexual abuse – expert evidence – evidence of opinion of expert as to whether person telling the truth inadmissible.
Child case – private law application for contact – risk of harm to child – allegation of past abuse rejected – proper approach of court.
Evidence – application by father for contact – allegation of sexual abuse – expert evidence – evidence of opinion of expert as to whether person telling the truth inadmissible.
The mother and father were married in 1979. The mother had a daughter from a previous relationship ("the step-daughter") who was then aged 4 and was now aged 21. After their marriage the parents had three children: a boy born in 1980, now aged 15; a girl born in 1990, now aged 5; and a girl born in 1992, now aged 4. The marriage broke down and the mother commenced divorce proceedings in 1994. The father sought contact with the three children of the marriage. This was opposed by the mother. It was alleged that the father had sexually abused the elder of the two young girls. It was also alleged by a sister of the father, who was now aged 33, that when she was between the ages of 7 and 13 he made her fellate him on at least two occasions; and that when she was 15 he raped her. It was further alleged that the father had made the step-daughter fellate him on two occasions, once in 1980 when she was aged 5 and again around 1982 when she was 7 or 8.
During 1994 the elder of the two young girls of the marriage was seen by the mother and the grandmother to be touching the younger child's vagina and, when spoken to, said that the father did it to her (the elder girl). The two girls were medically examined. There was no evidence of sexual abuse of either child.
In July 1994 the step-daughter and the father's sister made statements to the police alleging the sexual assaults by the father when they were children. This led to the father being charged with the criminal offences of rape and indecent assaults. Following a trial early in 1995 the father was acquitted on all counts by the jury.
The father then applied for contact with the three children of the marriage. The boy made it clear that he did not wish to see his father and the father accepted that as the boy was aged 15 he must accept his decision and that application was not pursued. The Official Solicitor, acting as guardian ad litem for the children, obtained the leave of the court for them to be seen and assessed by a consultant child psychiatrist. The doctor expressed the opinion that it was unlikely that the younger girl had been sexually abused. The doctor further expressed that it was likely but by no means certain that there had been some sort of sexual titillation with the elder girl, perhaps involving genital fondling; she added that
she did not seek to identify the father as the abuser of the child.
In the course of her assessment of the two young girls the doctor interviewed the father's sister and the step-daughter. The doctor expressed her opinion that the allegations of the two women of sexual abuse by the father when they were children were true. The alleged sexual abuses of the two women were important issues in relation to the father's application for contact. Consequently, the question arose whether the doctor's evidence of her opinion that the two women's assertions were true was admissible.
Held – (1) The opinion evidence of an expert was admissible to furnish the court with scientific information which was likely to be outside the experience and knowledge of a Judge. Thus, a medical expert could give evidence as to a person's psychiatric state and whether a person had a propensity to fantasize or invent. But the opinion evidence of an expert as to whether or not an adult witness was telling the truth was inadmissible. It was not for the expert to draw factual conclusions from the evidence of the witnesses. In the present case it was a fallacy to suggest that the doctor's evidence on the credibility of the two women was expert opinion. Whether or not the women were telling the truth was an issue of fact for the court and was not an issue which called for the testimony of an expert.
Re S and B (Minors) (Evidence) [1991] FCR 175; Liddle v Middleton (1995) The Times, 7 July; Re B (Child Sexual Abuse: Standard of Proof)[1996] 1 FCR 229; and observations of Lawton, LJ in R v Turner [1975] QB 834 followed.
(2) On an application under s 31 of the Children Act 1989 for a care order, an order could be made only where the court was satisfied that the child was (inter alia) likely to suffer significant harm. A finding that there was a real possibility that the child would suffer future harm must be based on findings of fact. Where the only evidence was an allegation of past abuse which the court had rejected, there could be no findings of fact justifying a finding of future risk of harm even if the Judge had doubts and suspicions on that issue; however, a future risk could be based upon a finding of a combination of profoundly worrying features affecting the care of the child within the family: per Lord Nicholls giving the majority opinion in Re H and R (Minors) (Sexual Abuse: Standard of Proof)[1996] 1 FCR 509. Under s 1(3) of the 1989 Act the issue of any harm the child had suffered or was at risk of suffering was only one of the factors to which the court had to have regard in considering whether to make an order. In Re N (Minors) (Residence Orders: Sexual Abuse)[1996] 1 FCR 244 the Court of Appeal had specifically left open the question whether the Re H and R approach applied in private law proceedings. The matter had not been fully argued in the present case so it was not appropriate for a view to be expressed on the application of the approach in Re H and R (above) to the assessment of risk in a private law case. However, for the purposes of the present case the approach of Lord Nicholls outlined above would be followed. This approach substantially reflected that of the Court of Appeal in H v H; K v K (Child Cases: Evidence) [1989] FCR 356 per Butler-Sloss, LJ at p 370B-E.
Statutory provisions referred to:Children Act 1989, ss 1, 8, 31.
Civil Evidence Act 1972, s 3.
Matrimonial Causes Act 1973, s 1(2)(b).
Cases referred to in judgment:Avon County Council v G [1988] FCR 290; sub nom Re G (A Minor) (Child Abuse: Standard of Proof) [1987] 1 WLR 146.
B (Child Sexual Abuse: Standard of Proof), Re[1996] 1 FCR 229.
D (A Minor) (Contact), Re[1993] 1 FCR 964.
FS (Minors) (Care Proceedings), Re[1996] 1 FCR 666.
H and R (Minors) (Proof of Abuse), Re[1995] 2 FCR 384 (CA); affirmed sub nom Re H and R (Minors) (Sexual Abuse: Standard of Proof)[1996] 1 FCR 509; [1996] 2 WLR 8 (HL).
H v H; K v K (Child Cases: Evidence) [1989] FCR 356; [1990] Fam 86; [1989] 3 WLR 933; [1989] 3 All ER 740.
Liddle v Middleton (1995) The Times, 7 July.
M (A Minor) (Care Proceedings: Appeal), Re[1995] 1 FCR 417.
N (Minors) (Residence Orders: Sexual Abuse), Re[1996] 1 FCR 244.
O (A Minor) (Contact: Indirect Contact), Re[1996] 1 FCR 317.
R v Turner [1975] QB 834.
S and B (Minors) (Evidence), Re [1991] FCR 175.
W (Minors) (Sexual Abuse: Standard of Proof), Re[1994] 2 FCR 759.
Alan Jenkins for the father.
John Hamilton for the mother.
Donald Cryan for the Official Solicitor as guardian ad litem.
MR JUSTICE WALL.The father, who was born on 15 August 1949 and is now thus 46, seeks contact to his three children; a boy, L, who was born on 1 July 1980 and is now 15; a girl, Y, born on 19 December 1990 and now 5; and a girl, I, who was born on 25 February 1992 and who is now 4.
The father's application is opposed by the children's mother who was born on 9 November 1954 and is now thus 41. The principal ground of her opposition is that the father has sexually abused the child, Y, and has also, in the past, committed other acts of sexual abuse. In particular, it is alleged that in 1978, when he was aged 28, he raped one of his younger sisters, K, then aged 15 (she was born on 21 October 1962 and is now 33; it is also alleged by K that when she was between about 7 and 13 years of age (that is between about 1969 and 1975) there were at least two occasions on which the father made her fellate him. Finally, it is alleged that the father indecently assaulted the mother's daughter by a previous relationship, R, who was born on 20 January 1975, and is now 21. R alleges that on two occasions, once when she was aged about 5 and again when she was about 7 or 8 (that is in 1980 and again in 1982 or 1983) the father required her to fellate him.
The father denies all the allegations. In relation to the alleged rape of K and the indecent assaults on R he stood trial at the Central Criminal Court, in which he was also charged with making threats to kill R. After a trial in which (amongst others) both complainants and the father himself gave evidence, he was acquitted by the jury. The father's present application has thus, in the circumstances which I shall relate in more detail in due course, led to a reopening of the issues which were the subject of the trial at the Central Criminal Court.
In addition to the allegations of sexual abuse, the mother also questions the father's motivation in making the application. She says he is preoccupied with clearing his name, and that his primary motivation for seeking contact is to show the world that the allegations are false. She says also that he is preoccupied with and unable to control his desire to punish the mother, K and R; that he is in an unstable mental and emotional state.
L, Y and I are all living with their mother in the parties' former matrimonial
home. There is no suggestion by the father that the children should reside with him. L, having initially expressed a wish to see his father, has now made it clear that he does not wish to do so, and the father realistically accepts that, given L's age, he must respect the boy's decision. It is therefore uncontroversial...
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Re M and R (Minors) (Expert Opinion: Evidence)
...1 FCR 666; and Re N (A Minor) (Child Abuse: Evidence)[1996] 2 FCR 572 not followed; and Re K (Minors) (Alleged Sexual Abuse: Evidence)[1996] 2 FCR 425 disapproved on this point. Statutory provisions referred to:Children Act 1989, ss 1, 8 and 31. Civil Evidence Act 1972, ss 3 and 5. Cases re......