Re M and R (Minors) (Expert Opinion: Evidence)
| Jurisdiction | England & Wales |
| Judgment Date | 1996 |
| Year | 1996 |
| Date | 1996 |
| Court | Court of Appeal (Civil Division) |
BUTLER-SLOSS, HENRY AND SAVILLE, L JJ
Care proceedings – evidence – threshold conditions – allegation of sexual abuse – whether child likely to suffer significant harm – not enough that alleged abuser had possibly abused a child – finding of likelihood of significant harm to be based on facts justifying that finding – expert evidence – whether evidence of opinion as to veracity of person admissible.
Evidence – expert evidence – whether evidence as to truthfulness of person admissible.
As a result of relationships with three men, the mother had six children. The two eldest children, now aged 14 and 12, were the issue of the first relationship. Two children, now aged 10 and 9, were born of the second relationship. Two children, now aged 2 and 22 months, were issue of the third relationship. In 1993 the two eldest children left the mother and went to live with their father.
The case concerned the four older children. In 1994 one of those children complained of sexual abuse by the mother and her then cohabitee and another man. The children were interviewed and medically examined. The local authority instituted care proceedings on the basis that the four children had been sexually abused. After reviewing the evidence the Judge held that he was not satisfied on the balance of probabilities that the allegations of sexual abuse had been proved. He added that he concluded that there was a real possibility that such abuse did occur but that such a possibility could not justify a conclusion that the threshold criteria in s 31 of the Children Act 1989 were satisfied. The Judge therefore refused to make full care orders in respect of the children on the ground of sexual abuse.
The local authority, supported by the guardian ad litem, appealed. They submitted that the Judge, having found that there was a real possibility that such abuse had occurred, had erred in law in not taking into account the allegations of sexual abuse in his assessment of the welfare of the children at the discretionary stage.
Held – dismissing the appeal: (1) Where a court was faced with an application for a care order under s 31 of the Children Act 1989 it must first consider whether the requirements of the section were met. If they were, the court was given a discretion as to what to do but in exercising that discretion must act in accordance with s 1 of the Act. Under s 31(2)(a) of the 1989 Act the court must be satisfied that the child was suffering significant harm or was likely to do so. The word "likely" in that context meant "a real possibility". The court could only find that there was a real possibility of significant harm if there were facts to justify that finding. It was not enough to find that there was a possibility that the alleged
abuser had previously abused a child as this would require the court to act on suspicion or doubts rather than facts. If, as in the present case, the court concluded that the evidence was insufficient to prove sexual abuse in the past, and if the fact of sexual abuse in the past was the only basis for asserting a risk of sexual abuse in the future, then it followed that there was nothing (except suspicion or mere doubts) to show a risk of future sexual abuse.
Re H and R (Minors) (Sexual Abuse: Standard of Proof)[1996] 1 FCR 509 followed.
(2) In cases involving children, expert medical and psychiatric evidence from paediatricians and allied disciplines was often quite indispensable to the court. Such expert evidence might relate to the presence and interpretation of mental, behavioural, and emotional signs, and that evidence often necessarily included, if not a conclusion, at least strong pointers as to the witness's view of the veracity of the child. It had been held that an expert witness could not give evidence of his opinion on an issue in the case, especially not when it was the ultimate issue, determinative of the case. But s 3 of the Civil Evidence Act 1972 provided that the opinion of a witness in civil proceedings on any relevant matter on which he was qualified to give expert evidence should be admissible in evidence; and "relevant matter" included an issue in the proceedings. This provision allowed the reception of expert opinion evidence as to the accuracy or truthfulness of a person, provided the expert was qualified to give an opinion on that matter. Consequently, as a matter of law an expert could give evidence as to an issue which could be the ultimate issue and could be an issue of credibility. However, the legal limitation imposed by s 3 of the 1972 Act was that the expert's opinion must be on a matter on which he was qualified to give expert evidence. Thus, a witness's evidence as to the right answer on the ultimate issue would often be inadmissible because he had no expertise on the final question, for example whether one person's evidence should be preferred to that of another person. This would not be inadmissible because it went to the ultimate issue or usurped the Judge's function: it would be inadmissible as not being relevant. The ultimate decision was for the Judge and all questions of relevance and weight were for him. The Judge could exclude irrelevant evidence. If evidence was arguably relevant but in the Judge's view ultimately unhelpful, he could generally prevent is reception by indicating that the expert's answer to the question would carry little weight with him. The modern view was to regulate such matters by way of weight rather than admissibility. But when the Judge was of opinion that the witness's expertise was still required to assist him to answer the ultimate questions, including credibility, he could safely and gratefully rely on such evidence while never losing sight of the fact that the final decision was for him.
Obiter dicta in Re S and B (Minors) (Evidence) [1991] FCR 175; Re FS (Minors) (Care Proceedings)[1996] 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 referred to in judgment:B (Minors) (Child Sexual Abuse: Evidence), Re[1996] 1 FCR 229.
DPP v A & B C Chewing Gum Ltd [1968] 1 QB 159.
FS (Minors) (Care Proceedings), Re[1996] 1 FCR 666.
G v G (Minors: Custody Appeal) [1985] 1 WLR 647; [1985] 2 All ER 225.
H and R (Minors) (Sexual Abuse: Standard of Proof), Re[1996] 1 FCR 509; [1996] 2 WLR 8; [1996] 1 All ER 1.
K (Minors) (Alleged Sexual Abuse: Evidence), Re[1996] 2 FCR 425.
Liddell v Middleton (1995), The Times, 7 July.
N (A Minor) (Child Abuse: Evidence), Re[1996] 2 FCR 572.
N (Minors) (Residence Orders: Sexual Abuse), Re[1996] 1 FCR 244.
R v Lowery [1979] AC 85.
R v Silcott and Others (1991) The Times, 9 December.
R v Stockwell (1993) 97 Cr App Rep 260.
S and B (Minors) (Evidence), Re [1991] FCR 175.
Clive Newton for the local authority.
Andrew McFarlane and Ian Cook for the guardian ad litem.
Alison Ball, QC and David Turner for the mother and Mr R.
LADY JUSTICE BUTLER-SLOSS.This is the judgment of the court.
This appeal by the local authority supported by the guardian ad litem is from the refusal of Connell, J on 7 March 1996 after a 15-day hearing to make full care orders in respect of four children. The Judge made interim care orders based upon emotional abuse and neglect but found that allegations of sexual abuse were not proved. He adjourned the case for three months to consider whether to return the four children to their mother and her partner, Mr R who are respondents to the appeal.
HistoryThe children are: P born 16 February 1986, now 10, D born 7 February 1987, both apparently the children of Mr PM although there is some doubt as to P's paternity, EN born 3 July 1993 aged 2 and A born 21 July 1994 aged one, the children of Mr R. The mother of all four children is Miss P. The father of P and D has played no part in these proceedings.
The mother has two elder children, EM born on 27 April 1982, just 14, and R born on 21 August 1983 who is 12. The father of EM and R is Mr SM who met the mother in 1980 when she was 18. They lived together until August 1984 when Mr SM was sentenced to a short term of imprisonment for burglary and perverting the course of justice. On his release from prison he was unable to find the mother and his children who moved to council accommodation in Woolwich. In 1985 the mother met Mr M and they lived together until November 1991 when they separated. The mother began a relationship with Mr R which is still continuing. The mother's children lived with them. Education welfare officers investigated a number of justified complaints about the physical care of the children. In 1992 EM, and R started to stay at weekends with their father who was living with Miss WN. In March 1993 they ran away from home to their father and have since lived principally with him. He and Miss WN experienced considerable difficulties in caring for them and sought the help of social workers. In November 1993 EM returned to her mother but in January 1994 there was a fire in the mother's flat. The mother has alleged that EM's father was responsible for the fire. Mr SM continued to have problems in the care of R who has displayed very disturbed behaviour and he has been placed in a children's home from time to time where
he remains at present.
Allegations of sexual abuseThe proceedings, the subject of these appeals, were started by a complaint by R to Miss WN that he had been sexually abused by his mother. His father was told and informed the police. There were then a series of video-recorded interviews of both children. On 15 February 1994 R was interviewed by a woman police officer in the presence of a social worker. He alleged abuse by his mother and a Mr WH. He alleged that his mother touched him and that Mr WH touched him, EM and D. He also described the conditions in which he lived with his mother as...
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