Re S-B (Children) (Care Proceedings: Standard of Proof)
| Jurisdiction | England & Wales |
| Judge | Lord Justice Thorpe,Lord Justice Longmore,Mr Justice Bodey |
| Judgment Date | 14 October 2009 |
| Neutral Citation | [2009] EWCA Civ 1196,[2009] EWCA Civ 1048 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: B4/2009/0739(A),Case No: B4/2009/0926 |
| Date | 14 October 2009 |
[2009] EWCA Civ 1048
Lord Justice Thorpe
Lord Justice Longmore and
Mr Justice Bodey
Case No: B4/2009/0926
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE MANCHESTER COUNTY COURT
(HER HONOUR JUDGE KUSHNER QC)
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr A Hayden QC and Ms M Case (instructed by Crangle Edwards Solicitors) appeared on behalf of the Appellant Mother.
Ms S Grocott QC and Ms S Watkinson (instructed by Trafford Borough Council) appeared on behalf of the 1 st Respondent, the Local Authority.
Ms F Judd QC (instructed by Karen Green & Co Solicitors) appeared on behalf of the 2 nd and 3 rd Respondents, the Children by their Children's Guardian.
This is an appeal from a judgment of HHJ Lindsey Kushner QC sitting as a deputy judge of the Family Division in the Manchester court, ultimately on 28 January 2009, when she distributed the written judgment that she had signed on 13 January to conclude a final hearing in public law proceedings which she had conducted between 8 and 15 December 2008. At the heart of the public law proceedings were two children, Jake, who was born on 19 May 2007, and Warren, who was born on 12 July 2008.
The chronology is of some significance, so I return to the summer of 2007 when, on 15 June, Jake, then not quite a month old, was taken to the general practitioner who onward referred to the Trafford General Hospital where a specialist registrar in paediatrics concluded that he had been subjected to non-accidental injuries. The local authority were involved and on 25 June issued their application for a care order.
The case has many unusual features, the first of which is that, although Jake's injuries occurred at a time when he was in the care of both his parents, his father took no part at all in the consequential investigation of the injuries or in the care proceedings initiated by the local authority. The case proceeded to a trial of a preliminary issue to establish 1) whether Jake had indeed suffered non-accidental injuries, and 2) if yes, which of the parents could be identified as the perpetrator.
The mother's initial litigation stance was to challenge that the injuries sustained by Jake were non-accidental. As the judge was to put it in a judgment of April 2008:
“A main puzzle has been the refusal of the mother, till her final statement, to accept the manifest experts' opinions that the injuries had been non-accidental in nature. Further, despite their concerns, initially she failed or refused to take the injuries seriously feeling they were of little if any significance.”
Thus the mother's concession that the injuries were indeed non-accidental, coupled with the father's abstention from the litigation process, left only limited territory for investigation and decision at the fact-finding hearing which commenced on 28 January and concluded on 20 March 2008. The stance of the local authority was that the judge should find that neither parent could be exculpated and that either of them might have been responsible for the injuries. The Guardian Ad Litem was not represented at that hearing by counsel but supported the position adopted by the local authority. Thus the adversarial issue for the judge to decide was: did the local authority make good their case against both parents or was the mother entitled to exculpation, as she submitted?
The judge in her judgment of 3 April 2008 accepted the local authority's submission supported by the guardian and found that neither parent could be excluded. In her reasoning she considered first the case against the father, and that section opened with this sentence:
“There is a high index of suspicion in relation to the father”
In relation to the mother she said this:
“…she has been most reluctant to acknowledge that, on the basis that she hadn't caused the injuries, [the father] must therefore have been the perpetrator.
First, possibly she refused to accuse him in terms because she knew he had not caused the injuries because she was in fact the perpetrator.
The other possibility is that, despite knowing that [the father] was the perpetrator, she was still so attached to him that she sought to protect him even though he injured her baby.
Sadly, although she did take the child to the baby clinic, this does not of itself provide me with evidence of sufficient strength to persuade me that she could not have injured the child in the first place.
Under all the circumstances I cannot on the information before me decide whether the mother was protecting [the father] because she was still attached to him despite his injuring the child, or because she [cou]ldn't bring herself to accuse him falsely since she had caused the injuries herself.
Accordingly, with regret, although I accept her love and affection for her son, I cannot rule her out as a perpetrator either”
This judgment was not appealed by the mother but at a directions hearing on 5 June her then counsel invited the judge to give assistance to professional assessors in relation to the assessment of the relative likelihood of the mother or the father being the perpetrator. The judge acceded to that application almost immediately by a judgment dated 6 June which she had headed “Adjunct to Judgment”. She briefly introduced the task she had undertaken saying:
“…I have been asked by the parties to assist by indicating my view as to the relative likelihood of the mother being the perpetrator of the injuries to Jake which triggered these proceedings.”
In paragraph 4 she said:
“The mother's surrounding circumstances at the time of Jake's injuries were such that, for the reasons given, she was very vulnerable and therefore I felt that she could indeed have caused Jake's injuries.”
Finally she said:
“Invidious though it is to be too specific, but to help further assessments, I am prepared to say that I feel it is 60% likely that the father injured the child and 40% likely that it was the mother.”
On the basis of the adjunct a number of professionals came to assist the court with their assessments, either social or psychological, in preparation for what was to be a disposal not only in relation to Jake but also in relation to Warren, in respect of whom the local authority applied for a care order on 14 July, two days after his birth. However, a significant event occurred on the day preceding Warren's birth, for on 11 June the House of Lords handed down their judgment in the case of Re B [2008] 2 FLR 141. Its significance was not immediately appreciated, but on 20 November 2008 Ms Case, who had come into the litigation to represent the mother in place of previous counsel, took the point that the effect of the decision of the house in Re B was to unravel the judge's conclusions in relation to the uncertainty as to which parent had perpetrated.
In the light of the House's introduction of the binary approach, it was submitted on behalf of the mother that since the judge was 60 percent satisfied as to the father's responsibility, ergo there had to be a finding on the balance of probabilities that he was the perpetrator with the consequential finding that the mother was absolved of responsibility. That argument was considered by HHJ Kushner in her judgment of 13 January 2009. She addressed the point fully and conscientiously in paragraphs 2 and 3 of her judgment, which collectively extend to some 30 sub paragraphs. However, although rejecting Ms Case's submission, she granted her permission to appeal on the point and that explains how we are assembled this morning, with Mr Anthony Hayden QC arguing the point presented first by Ms Case to HHJ Kushner. He is opposed by Ms Grocott QC for the local authority and Ms Judd QC for the guardian.
Mr Hayden in his elegant and forceful submission says that the jurisprudence in this difficult area has been comprehensively revised by the decision in Re B. He says that it is of clear application not only to the primary question—has the local authority proved the facts necessary to cross the Section 31 threshold?—but also in the secondary question—which adult is to bear responsibility for the infliction of injury?—and Mr Hayden refers most particularly on the speech of Baroness Hale, paragraphs 70–73 inclusive:
“70. My Lords, for that reason I would go further and announce loud and clear that the standard of proof in finding the facts necessary to establish the threshold under section 31(2) or the welfare considerations in section 1 of the 1989 Act is the simple balance of probabilities, neither more nor less. Neither the seriousness of the allegation nor the seriousness of the consequences should make any difference to the standard of proof to be applied in determining the facts. The inherent probabilities are simply something to be taken into account, where relevant, in deciding where the truth lies.
71. As to the seriousness of the consequences, they are serious either way. A child may find her relationship with her family seriously disrupted; or she may find herself still at risk of suffering serious harm. A parent may find his relationship with his child seriously disrupted; or he may find himself still at liberty to maltreat this or other children in the future.
72. As to the seriousness of the allegation, there is no logical or necessary connection between seriousness and probability. Some seriously harmful behaviour, such as murder, is sufficiently rare to be inherently improbable in most circumstances. Even then there are circumstances, such as a body with its throat cut and no weapon to hand, where it is not at all improbable. Other seriously harmful...
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