Re L (Sexual Abuse: Standard of Proof)
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE BUTLER-SLOSS |
| Judgment Date | 29 June 1995 |
| Judgment citation (vLex) | [1995] EWCA Civ J0629-12 |
| Docket Number | NO:95/5799/F 95/5991/F 95/6024/F 95/6008/F 94/1464/F 94/1465/F |
| Court | Court of Appeal (Civil Division) |
| Date | 29 June 1995 |
[1995] EWCA Civ J0629-12
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM: PLYMOUTH COUNTY COURT
FROM: HIS HONOUR JUDGE Wigmore
Before : Lord Justice Butler-Sloss Lord Justice Henry and Lord Justice Pill
NO:95/5799/F
94/7242/F
95/5991/F
95/6024/F
95/6008/F
94/1464/F
94/1465/F
MS J PARKER QC and MR M HOUGHTON (instructed by Messrs Wolferstans, 6 Addison Road, Sherwell, Plymouth) appeared on behalf of the First Respondent.
MR D TYZACK (instructed by Messrs Nash, Beaumont House, Beaumont Park, Plymouth) appeared on behalf of the Second Respondent.
MR R TOLSON (instructed by Messrs Foot & Bowden, 70-76 North Hill, Plymouth) appeared on behalf of the Guardian Ad Litem.
MR P FOCKE QC and MR G MEREDITH (instructed by Devon County Council, Civic Centre, Plymouth) appeared on behalf of the Appellants.
Thursday, 29th June 1995
.
.
Identification.
The father and mother of two little girls, "Z" born on the 23rd June 1989 and "L" born on the 30th January 1992, appeal against orders made by His Honour Judge Wigmore at Plymouth on the 24th October 1994 after a 17 day hearing. The judge made final care orders in respect of each child to the Devon County Council, the local authority, and on the application of the guardian ad litem of the children, not supported by the local authority, made an order authorising the local authority to terminate contact between the parents and the children. We allowed all the applications to adduce further evidence; dismissed the appeals by the father and the mother against the final care order but allowed the appeal against the contact order and reserved our reasons for those decisions.
There is a long and extremely convoluted background to this unhappy case, most of which it is not necessary to set out for the purposes of the appeal. The father is 35 and the mother 24. The father had a relationship with his step sister when she was under age and had two children by her, the elder one "L" being born in 1979, the younger one "L" in 1981. He married his stepsister in 1980 but they parted in 1981 and both formed new relationships. Both children were the subject of care orders. The father married and divorced a second time. In 1988 he met the mother. Like the father she is the member of a large and close knit family. In both households for a number of years there have been numerous allegations of sexual abuse, many of them unsubstantiated. The maternal grandfather appears to have abused the mother over a period of years and has continued to do so until very recently. The father's brother was convicted of sexual offences against "L" in 1993. The parents married in January 1993. On the 3rd July 1993 "L" made a complaint to the police that her father had sexually abused her on the occasion of "Z's" birthday party a few days before. She was medically examined and interviewed on 7th July. The interview was video recorded. "Z" was also interviewed. The two little girls were removed from home and placed briefly with foster carers. The father moved out and the children returned to their mother with no contact to the father. The paternal grandmother reported that "Z" had been indecently assaulted by an uncle. This was investigated by the police but no action taken. The children continued to see their father and in September 1993 the guardian discovered that they were also seeing their maternal grandfather. On 1st October 1993 the local authority obtained emergency protection orders and then interim care orders and the two children have since remained in care. There have been numerous interlocutory proceedings. On 18th August 1994 "L" was again interviewed by the police and made further allegations against her father.
Before the judge at the hearing there was a wealth of evidence including a positive assessment of the father and mother's general capabilities as parents. The local authority case was based partly upon the allegations of abuse by the father to "L" and to other girls with the risk to the two younger girls and the abusing and unsatisfactory wider family background within which the mother was, in its view, unable to protect the girls. Three consultant psychiatrists were consulted. Dr Gaye read the papers but did not see the family. Partly based on his advice which supported the social workers` conclusions, the local authority produced a care plan based on removing the children permanently from the family and placing them for adoption. Dr Roberts and Dr Redding both saw the family and Dr Redding worked with the mother. Their conclusions were more optimistic about the prospects of rehabilitation with mother and possibly with the father.
Appeal by father.
The first appeal by the father raised the issues of the standard of proof to be applied in a case of allegations of sexual abuse and whether there was evidence upon which the judge was entitled to find the allegations about the father's behaviour on 23rd June 1993 towards his elder daughter aged 13, proved to that requisite standard of proof. The judge said at page 5 of his judgment:—
"It has been pointed out to me that on this question of a finding of sexual abuse the standard of proof is the balance of probabilities on which there has to be cogent evidence commensurate with the seriousness of the allegation…….
There were two interviews with "L" and I have seen the videos of both. The interesting thing about that is that the earlier interview was, in the view of I think anyone who has seen it, a credible interview both in her manner and in what she said, but certainly some of the experts who had viewed her second video not only found that video itself somewhat unconvincing but it cast doubt upon the credibility of the first one. I do not propose to analyse this at any great length now but I shall say this: on the balance of probabilities I am quite satisfied as to the first part of the first video with "L" that the disclosures there being made were true: That is everything insofar as it concerned the allegations made about what happened in the kitchen on the occasion of "Z's" fourth birthday. That was that the father was feeling inside Lisa's clothes and he touched underneath "L's" bra and he put his hand, as I understand it, into her jeans and touched her vagina.
That, I am satisfied on the evidence I have heard, on the commensurate standard of proof that I have to look at, is a credible account and I find that as proved; but what "L" then went on to say about an earlier occasion seems to me —and I am still talking about the first video —far too uncertain to found any finding in respect of what the father may have done…….I do not think that the standard is reached on that second allegation that could satisfy me on the balance of probability.
When we come to "L's" second interview I cannot be satisfied on the second interview because of the various uncertainties that surround it. It was a supposed disclosure about a matter which happened considerably before the matters referred to in the first interview. The whole surrounding of the interview and the way in which matters came out did suggest that it was perhaps not the spontaneous revelation for which one might have looked. Whatever the explanation, I cannot say that I am satisfied on the balance of probabilities as to that, so, so far, I confine myself to finding the matters alleged about the birthday party incident as true but nothing else on Lisa's disclosures."
The case against the father included other allegations of sexual abuse in respect of four other girls but the judge held the evidence to be insufficient to make any finding. In respect of the stepsister he did not find abuse as such although clearly there was sexual intercourse with her when she was under the age of 16. The judge found that the interview with "Z" did not disclose any abuse by her father.
Standard of Proof.
Mr Tyzack on behalf of the father submitted that the judge misdirected himself on the standard of proof.
There was a time when the standard of proof to be applied to allegations of sexual abuse by parents or others on children in civil matrimonial proceedings was a matter of debate. Thus we have Butler-Sloss LJ in her judgment in Re "H" Re "K" [1989] 2 FLR at 313 recording that:
"There is, however, a considerable body of authority in pre-1971 cases that a higher standard of proof is required to prove matrimonial offences. Professor Cross advised in the 4th edition of his work [1974] that it would be rash to make any general statement with regard to the standard of proof in matrimonial proceedings."
However, those days are long past. It is, and has for some considerable time, been universally recognised that, in the words of the President in Re "H" and "R" [1995] 1 FLR 643 at 650 the standard is:
"That evidence of primary fact relating to past events had to be established on the balance of probabilities proportionate to the gravity of the allegations concerned."
That formulation is not confined to child cases only, but is the same as applies in civil cases generally (see Cross on Evidence 7th Edition, 146/150 and 154/156). It is set out in numerous cases in the Family Division, (see eg Bater — v — Bater [1951] p 35, Re "H" Re "K" [1989] 2 FLR 313, Re "W" [1994] 1 FLR 419) —all to the same effect. It is not a point that need be argued again. The trial judge in this case heard, as his judgment makes clear, submissions on the point. Those submissions resulted in him giving a self-direction on the standard of proof that cannot be faulted:
"On this question of a finding of sexual abuse the standard of...
To continue reading
Request your trial
-
S (Children )
...welfare. But the point is not free from authority. Miss Kirby has helpfully drawn attention to the decision of this court in Re L [Sexual Abuse: Standard of Proof] 1 FLR 116. At the conclusion of her judgment Butler-Sloss LJ, under a sub-heading "Contact", recorded that in that case the gua......
-
X Council v B (emergency protection orders)
...[1993] 1 FLR 290, Hounslow London Borough Council v A [1993] 1 FLR 703, Buckinghamshire County Council v M [1994] 2 FLR 506, Re L (Sexual Abuse: Standard of Proof) [1996] 1 FLR 116, Re CH (Care or Interim Care Order) [1998] 1 FLR 402, Re R (Care Proceedings: Adjournment) [1998] 2 FLR 390, R......
-
F v Lambeth LBC
...[1988] 2 FLR 139, HL. L (minors) (care proceedings: appeal), Re[1996] 2 FCR 352; sub nom Re L (sexual abuse: standard of proof) [1996] 1 FLR 116, M and H (minors), Re [1989] FCR 65; sub nom Re M and H (minors) (local authority: parental rights) [1990] 1 AC 686, [1988] 3 All ER 5, [1988] 3 W......
-
Re W and B (Children: Care Plan); Re W (Children: Care Plan)
...FCR 721, [1994] 2 FLR 423, CA. L (minors) (care proceedings: appeal), Re[1996] 2 FCR 352; sub nom Re L (sexual abuse: standard of proof) [1996] 1 FLR 116, López Ostra v Spain (1994) 20 EHRR 277, [1994] ECHR 16798/90, ECt HR. Malone v UK (1984) 7 EHRR 14, [1984] ECHR 8691/79, ECt HR. Marckx ......
-
Standards of Proof in Civil Litigation
...ex pS[1984] Fam 93; Re G (A Minor) [1987] 1 WLR 1461; HvH (Minor), K vK (Minors) [1989] 3 WLR933; Re W (Minors) [1994] 1 FLR 419; Re L [1996] 1 FLR 116 (flexible standard).51 n 49 above, 16. Lords Goff and Mustill gave judgments concurring with Lord Nicholls. Lord Lloydexpressly disagreed w......