Earl Street Carlisle
B e f o r e :
| In the matter of: Re: R (A CHILD)
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MS J. CROSS, Q.C.
Counsel for the First Respondent:
MS S. GROCOTT, Q.C.
Counsel for the Second Respondent:
MS S. SINGLETON, Q.C.
Counsel for the Child:
MS F. JUDD, Q.C.
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"The court may only make a care order or supervision order if it is satisfied that the child concerned is suffering, or is likely to suffer, significant harm and that the harm or likelihood of harm is attributable to the care given to the child not being what it would be reasonable to expect a parent to give to him."
In this case, a head injury and a femoral fracture are alleged. Either would, of course, amount to significant harm within the meaning of Part IV of the Act.
"My Lords, if the judiciary in this country regularly found themselves in this state of mind, our civil and family justice systems would rapidly grind to a halt. In this country we do not require documentary proof. We rely heavily on oral evidence, especially from those who were present when the alleged events took place. Day after day, up and down the country, on issues large and small, judges are making up their minds whom to believe. They are guided by many things, including the inherent probabilities, any contemporaneous documentation or records, any circumstantial evidence tending to support one account rather than the other and their overall impression of the characters and motivation of the witnesses. The task is a difficult one. It must be performed without prejudice and pre-conceived ideas, but it is a task which we are paid to perform to the best of our ability. In our legal system, if a judge finds it more likely than not that something did take place then it is treated as having taken place. If he finds it more likely than not that it did not take place then it is treated as not having taken place. He is not allowed to sit on the fence. He has to find for one side or the other. Sometimes the burden of proof will come to his rescue. The party with the burden of showing that something took place will not have satisfied him that it did but, generally speaking, a judge is able to make up his mind where the truth lies, without needing to rely upon the burden of proof."
Judges are clearly being encouraged to make specific findings without recourse to the burden of proof.
"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 a 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. 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. The 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."
In short, each issue is to be determined on the balance of probabilities and, thus, the questions in this case may be posed as follows:
(1) Is it more probable than not that the subdural haemorrhages were as a result of trauma inflicted by the parents, or either of them; and
(2) Is it more probable than not that the femoral fracture was as a result of trauma inflicted by the parents or either of them?
Those seem to be the central controversial questions in this case. Thus, it can be seen that at the heart of the case lies the question of causation of the subdural haematomas and the femoral fracture. These cases occupy substantial amounts of the time expended in exercising the jurisdiction under Part IV of the Act. These issues, however, are not confined to this jurisdiction. They occupy much time of judge and jury in the Crown Court. There too these issues cause great anxiety and difficulty. In the case of Henderson & Ors  EWCA Crim 1269 (fully reported) the Court of Appeal Criminal Division sought to address these matters. Conspicuous effort was made to ensure that the experience of the Family Court was fed into that court's consideration. It is of course desirable, where possible, that the law applied in the two jurisdictions should be as consistent as the substantive law permits. There is, of course, a fundamental difference between the two systems in relation to the differing standards of proof that prevail. Nevertheless, it may be worth reflecting on the words of Lord Justice Moses which introduce the judgment of the court in that case. He says this:
"There are few types of case which arouse greater anxiety and controversy than those in which it is alleged that a baby has died as a result of being shaken. It is of note that, when the Attorney General undertook a review of 297 cases over a 10-year period following the case of Cannings, 97 were cases of what is known as 'shaken baby syndrome'. The controversy to which such cases give rise should come as no surprise. A young baby dies whilst under the sole care of a parent or child-minder. That child can give no clue to clinicians as to what has happened. Experts, prosecuting authorities and juries must reconstruct, as best they can, what has happened. There remains a temptation to believe that it is always possible to identify the cause of injury to a child. Where the prosecution is able, by advancing an array of experts, to identify a non- accidental injury and the defence can identify no alternative cause, it istempting to conclude that the prosecution has proved its case. Such a temptation must be resisted. In this, as in so many fields of medicine, the evidence may be insufficient to exclude beyond reasonable doubt an unknown cause. As Cannings teaches, even where, on examination of all the evidence, every possible known cause has been excluded, the cause may still remain unknown."
"I am not sure that I can account for this head condition. Jumping one way or the other may mislead the court as this is balanced at fifty-fifty."