COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM SWINDON COUNTY COURT
His Honour Judge Wade
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE POTTER
LORD JUSTICE MUMMERY
|RE T (CHILDREN)|
Miss Pamela Scriven QC and Mr Richard Hadley (instructed by Goughs) for the First Respondent
Mr Stephen Wildblood QC and Mr Andrew Grime (instructed by Lemon and Co.) for the Second Respondent
Hearing dates : 24/25.2.04
Crown Copyright ©
Dame Elizabeth Butler-Sloss P.:
The medical evidence
"Significantly at that stage, both experts were concerned 'as to whether the probability of either cause can be determined to the level required for the court.'"
"Dr W said this in his letter to Mr Robertson: 'Given the photographs that I examined, I came to the view that I could not equate Dr [G's] descriptions with the photographic evidence.' Although he does not go so far as to say it, that, it seems to me, is really saying that Dr W did not accept the accuracy of Dr [G's] findings in their entirety. It was not until he saw the 'new' photographs that he had to acknowledge that she was right after all as to the depth of the vulval injury. It is right to say that the way that is has happened is unsatisfactory, and I am urged on behalf of the father to consider the quality of Dr [W's] evidence. Taking all the circumstances into consideration, whilst I am satisfied that he has had a genuine change of mind, and that the reasons he gives for that are understandable, I do consider that it highlights the medical difficulty in this case. That difficulty, in my view, is that there is a considerable lack of certainty in the opinions of the experts, and it does not take much of a change in emphasis in the way a particular piece of evidence is looked at, to result in a move from one side of the 'fence' to the other. I think Dr [W] – and he has not been alone in this – has found this to be a particularly difficult case. In my view, his change of mind has the effect of emphasising the difficulty the experts have had in reaching conclusions with any real degree of certainty."
"….there was in my view a significantly more cautious approach by both Dr [W] and Dr [P] when they came to give evidence, again emphasising the difficult task of reaching firm conclusions in this case."
…..I have reached the conclusion that the expert and other medical evidence, by itself, is insufficient to establish that [ET] has been sexually abused. Support for that conclusion comes from the differences of opinion seen in the evidence of Dr [W] and Dr [P], to which I have referred in more detail elsewhere, and the view I have taken as to Dr [W's} change of mind."
"…Ultimately, both these experts have accepted that what has been found cannot be said to be diagnostic of sexual abuse…….
I have looked at it all in the context of re B [Non-Accidental Injury: Compelling Medical Evidence  2 FLR 599] referred to above, but in my view the evidence here does not approach the degree of certainty present in that case."
The appellants' case on appeal
" I have had to consider very carefully indeed therefore whether this is one of those rare cases where a diagnosis of sexual abuse would be justified on physical signs alone."
"I accept…Mr Wildblood's submission that the court must look with care at the way in which the experts have used words and expressions concerning degrees of certainty, such as 'sure', 'probable', 'serious possibility', 'near as possible to being sure.'"
The submissions of the respondents to the appeal
The standard of proof in civil family cases
"Where the matters in issue are facts the standard of proof required in non-criminal proceedings is the preponderance of probability, usually referred to as the balance of probability. This is the established general principle. There are exceptions such as contempt of court applications, but I can see no reason for thinking that family proceedings are, or should be, an exception. By family proceedings I mean proceedings so described in the Act of 1989, sections 105 and 8(3). Despite their special features, family proceedings remain essentially a form of civil proceedings. Family proceedings often raise very serious issues, but so do other forms of civil proceedings.
The balance of probability standard means that a court is satisfied an event occurred if the court considers that, on the evidence, the occurrence of the event was more likely than not. When assessing the probabilities the court will have in mind as a factor, to whatever extent is appropriate in the particular case, that the more serious the allegation the less likely it is that the event occurred and, hence, the stronger should be the evidence before the court concludes that the allegation is established on the balance of probability. Fraud is usually less likely than negligence. Deliberate physical injury is usually less likely than accidental physical injury. A stepfather is usually less likely to have repeatedly raped and had non-consensual oral sex with his under age stepdaughter than on some occasion to have lost his temper and slapped her. Built into the preponderance of probability standard is a generous degree of flexibility in respect of the seriousness of the allegation.
Although the result is much the same, this does not mean that where a serious allegation is in issue the standard of proof required is higher. It means only that the inherent probability or improbability of an event is itself a matter to be taken into account when weighing the probabilities and deciding whether, on balance, the event occurred. The more improbable the event, the stronger must be the evidence that it did occur before, on the balance of probability, its occurrence will be established. Ungoed-Thomas J. expressed this neatly in In re Dellow's Will Trusts (1964) 1 W.L.R. 451, 455: "The more serious the allegation the more cogent is the evidence required to overcome the unlikelihood of what is alleged and thus to prove it."
This substantially accords with the approach adopted in authorities such as the well known judgment of Morris L.J. in Hornal v. Neuberger Products Ltd. (1957) 1 Q.B. 247, 266: This approach also provides a means by which the balance of probability standard can accommodate one's instinctive feeling that even in civil proceedings a court should be more sure before finding serious allegations proved than when deciding less serious or trivial matters."
"that the person is a sex offender; and"
"that the person has acted, since the relevant date, in such a way as to give
reasonable cause to believe that an order under this section is necessary to protect the public from serious harm from him,"
then the chief officer may apply for an order under the section.
"In a serious case such as the present the difference between the two standards is, in truth, largely illusory. I have no doubt that, in deciding whether the condition in section 2(1)(a) is fulfilled, a magistrates' court should apply a civil standard of proof which will for all practical purposes be indistinguishable from the criminal standard. In deciding whether the condition in section 2(1)(b) is fulfilled the magistrates' court should apply the civil standard with the strictness appropriate to the seriousness of the matters to be proved and the implications of proving them."
"Having concluded that the relevant proceedings are civil, in principle it follows that the standard of proof ordinarily applicable in civil proceedings, namely the balance of probabilities, should apply. However, I agree that, given the seriousness of matters involved, at least some reference to the heightened civil standard would usually be necessary: In re H (Minors)(Sexual Abuse:Standard of Proof)  AC 563, 586D-H per Lord Nicholls of Birkenhead. For essentially practical reasons, the Recorder of Manchester decided to apply the criminal standard. The Court of Appeal said that would usually be the right course to adopt. Lord Bingham of Cornhill has observed that the heightened civil standard and the criminal standard are virtually indistinguishable. I do not disagree with any of these views. But, in my view pragmatism dictates that the task of magistrates should be made more straightforward by ruling that they must in all cases under section 1 apply the criminal standard."
"…Although the result is much the same, this [the cogency requirement] does not mean that where a serious allegation is in issue the standard of proof required is higher. It means only that the inherent probability or improbability of an event is itself a matter to be taken into account when weighing the probabilities and deciding whether, on balance, the event occurred."
"So it may very well be that, in looking at these more recent dicta, one is (as Miss Ball put it) somewhat 'dancing on the head of a pin'; and no counsel has gone so far as to submit to me that, in a serious case such as this, it is now the criminal standard which should in terms be directly applied.
I therefore propose, in applying the civil standard and the re H (Minors)(Sexual Abuse:Standard of Proof)  AC 563……cogency test here, to have well in mind the dicta in the latter two cases just cited. So, whenever in this judgment I 'find' something occurred, or expressed myself 'satisfied' or 'persuaded' of some fact or other, it is in the light of the authorities which I have just been discussing and on the basis that, in this very serious case, the difference between the civil and the criminal standards of proof is 'largely illusory'."
Conclusions on the standard of proof
"The expert of ultimate referral was there to guide the judge as to the relevant medical and scientific knowledge, inevitably expressing himself in medical language. The judge's function was a very different one. He had to consider the question posed by s31 of the Children Act 1989 as to whether L was a child suffering or likely to suffer significant harm and whether that harm or likelihood of harm was attributable to the care given to the child, or likely to be given to him, if the order was not made."
"…any delay in determining the question [of the upbringing of the child] is likely to prejudice the welfare of the child."
Lord Justice Potter: I agree with this judgment.
Lord Justice Mummery: I also agree.