Re L (Minors) (Care Proceedings: Appeal)
| Jurisdiction | England & Wales |
| Judgment Date | 1996 |
| Year | 1996 |
| Date | 1996 |
| Court | Court of Appeal (Civil Division) |
BUTLER-SLOSS, HENRY AND PILL, L JJ
Care proceedings – allegations of sexual abuse – standard of proof to be applied – whether necessary to repeat standard formulation in connexion with each finding of fact.
Care proceedings – final care order imposed instead of interim care order – whether making of final care order amounted to abdication of court's responsibility.
Contact – order authorizing termination of contact with children in care – order not sought by local authority – whether appropriate to make order which was not to be implemented in the foreseeable future.
Care proceedings were brought in a county court in respect of the two young children of the parents' marriage. The two children, both girls, were born in 1989 and 1992. The background to the case was convoluted and involved numerous allegations of sexual abuse involving the wider family, though many of the allegations were unsubstantiated. These allegations went beyond the two young children immediately concerned in the proceedings and involved also two older children of the father born in the course of a previous association. The eldest of these two older children, a girl aged 13, made an allegation on 3 July 1993 that the father had sexually abused her. She was medically examined and interviewed on 7 July 1993. The two young children of the parents' marriage were taken into care and interim care orders were made. In August 1994 the eldest child was again interviewed and made further allegations against the father.
The father consistently denied the allegations of sexual abuse.
The local authority's case was essentially based on the allegations of sexual abuse by the father of his eldest daughter with the consequential risk to the two young girls of the marriage and the abusing and unsatisfactory wider family within which, the local authority suggested, the mother would be unable to protect the girls.
On the issue of sexual abuse the Judge held that the standard of proof was the balance of probabilities on which there had to be cogent evidence commensurate with the seriousness of the allegation. He found that the eldest girl's allegations of sexual abuse were proved to the requisite standard of proof. This finding was based on his assessment of the video recordings of the interviews with the eldest girl.
The original care plan of the local authority was to place the two young children of the marriage for adoption but the social worker involved indicated that the local authority intended to reconsider the care plan in the light of the evidence. This included the evidence of two consultant psychiatrists who stated that the relationship between the children and the parents was so good that rehabilitation ought to be tried. The Judge expressed the view that there was a fair chance that rehabilitation would work and considered the options of
no order, further interim orders, and full care orders. He decided to make full care orders.
The guardian ad litem invited the Judge to make an order under s 34(4) of the Children Act 1989 authorizing the local authority to refuse to allow contact between the children and the family. The local authority did not seek such an order but the Judge nevertheless made one.
The parents appealed against the making of care orders and the local authority appealed against the order authorizing the termination of contact between the children and the parents.
For the father it was submitted that although the Judge had correctly directed himself as to the standard of proof in respect of the alleged sexual abuse he had in fact applied a lower standard as was indicated by the way he subsequently expressed himself on this issue. Further, it was submitted, the Judge should not have relied on the allegations of the eldest girl contained in the video recorded interview as he had only accepted part of the interview as being true.
For the mother it was submitted that the Judge should not have made full care orders but should have retained control until the local authority had reconsidered the possibility of rehabilitation, the outcome of that investigation was clear, and a care plan of which the Judge approved was presented to the court. By making full care orders at a time when the future of the children was undecided, it was submitted, the Judge had abdicated his function under the Children Act to the local authority.
Held – dismissing the appeals against the care orders but allowing the appeal against the order authorizing the termination of contact: (1) There had been a time when the standard of proof to be applied to allegations of sexual abuse of children was a matter of debate. Those days, however, were long past. It was now clear, as stated in Re H and R (Minors) (Proof of Abuse)[1995] 2 FCR 384, that the standard of proof was on the balance of probabilities proportionate to the gravity of the allegations concerned. The direction which the Judge gave himself on this point could not be faulted. The submission that he had then applied a lower standard because he had accepted only part of the video evidence would be rejected. Video evidence of a child which had been subject to cross-examination, must be viewed with caution by the court. The circumstances which led to the interview being conducted, the manner in which it was conducted, and the absence of cross-examination, must be borne in mind. In this case the Judge had approached his task with great care and caution. He had explained, sufficiently and cogently, why he had accepted a part of the evidence but not other parts. It was, in all cases, for the Judge to assess the probative value of a video recording. There was accordingly nothing to suggest that the Judge had applied a lower standard than that which he so clearly expressed. Having correctly stated the standard of proof which he was applying, it was not necessary for the Judge to repeat the formulation on every occasion when he made reference to whether he was satisfied or not.
(2) The decision of the Judge to make final care orders, instead of interim orders, was not an abdication of responsibility by the court. The court was acting in accordance with the intention of the legislation. Many of the most important decisions relating to children were to be made by the local authority, and there was accordingly nothing untoward in the Judge leaving the ultimate decision in the hands of the local authority. An interim care order was not to be used to provide a continuing control over the actions of the local authority. In this case, if there was to be further investigation with a view to the rehabilitation of the children with their mother, it would take between six and nine months before a decision could be made. The children would inevitably remain in care during this time. The Judge was entitled to come to the conclusion that it would not be right to make further interim orders. The lengthy hearing had been intended to provide a conclusion to the litigation, and the making of a series of interim care orders for an indefinite period would have been an artificial use of the interim care order. There was no error in principle
in the exercise of discretion by the Judge and no abdication of the court's responsibility.
(3) The care plan was an important part in the planning of the future for a child. If the court did not agree with the care plan proposed by the local authority it might refuse to make a care order. In this case the Judge did not reject the care plan and he was entitled, in the exercise of his discretion, to reach the conclusion he did, following the indication given by the local authority of an intention to reconsider the care plan in the light of the evidence.
(4) The order giving leave to the local authority to terminate contact between the children and the parents was contrary to the local authority's intentions and to the indications given by the Judge regarding the possibility of rehabilitation. An order authorizing the termination of contact pursuant to s 34(4) of the 1989 Act was appropriate when there was no likelihood of rehabilitation. In the context of this case it was surprising that an order had been made to save a further application. This was to hand over to the local authority the residual responsibility which remained vested in the court. It was premature to make an order which would not be implemented in the foreseeable future.
Per curiam: The ground of appeal relating to the Judge's failure to repeat the formulation as to the correct standard of proof was hopeless. It should not be repeated in future cases as there could be no doubt as to the correct standard of proof in...
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