BUTLER-SLOSS LJ: This is the judgment of the court. This appeal by the Surrey County Council, 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 3 months to consider whether to return the four children to their mother and her partner, Mr R, who are respondents to the appeal.
History
The children are - P born 16 February 1986, now 10, D born 7 February 1987, both apparently the children of Mr M although there is some doubt as to P's paternity, B 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 Ms P. The father of P and D has played no part in these proceedings.
The mother has two elder children, E born on 27 April 1982, just 14, and R born on 21 August 1983 who is 12. The father of E and R is Mr S who met the mother in 1980 when she was 18. They lived together until August 1984 when Mr S 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 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 children lived with them. Education welfare officers investigated a number of justified complaints about the physical care of the children. In 1992 E and R started to stay at weekends with their father who was living with Ms W. In March 1993 they ran away from home to their father and have since lived principally with him. He and Ms W experienced considerable difficulties in caring for them and sought the help of social workers. In November 1993 E returned to her mother but in January 1994 there was a fire in the mother's flat. The mother has alleged that E's father was responsible for the fire. Mr S 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 abuse
The proceedings, the subject of these appeals, were started by a complaint by R to Ms W 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 T. He alleged that his mother touched him and that Mr T touched him, E and D. He also described the conditions in which he lived with his mother as 'terrible', being dirty and smelly and that he was the victim of excessive punishment by Mr R. He said of his mother that: 'I'm still upset with her, I've got a lot of anger with her'.
On 22 February 1994 E was similarly interviewed. She complained about the state of her mother's house but made no complaints of abuse. She then returned to live with her father. The mother was arrested on 23 February 1994 and released on bail but the police did not pursue their investigations.
In April 1995 E and then R spoke to Ms W about further abuse. Both children were again interviewed by the police. In her interview E, for the first time, made allegations of indecent touching by her mother of herself, D, P and R. In his interview, R described abuse by his mother and anal penetration by Mr R and Mr T of himself, E, P and D. The mother, Mr R and Mr T were arrested and held in custody. They denied all the allegations. The mother was charged with two offences of indecent assault and Mr R and Mr T each with two offences of buggery but all the proceedings were subsequently discontinued. The four younger children were placed with two sets of foster-parents with whom they remain.
Medical evidence
All six children have been examined for any relevant physical signs which might be consistent with the allegations of serious sexual abuse. The examinations of E, R, B and A showed no physical signs. On 23 May 1995 P was examined jointly by Dr Lauder and Dr Holden who observed a wedged-shaped healed tear at the 9 o'clock position in the external anal sphincter. The fissure was not recent and had occurred between 3 months and 18 months previously. D was examined by the same two doctors on the same day and was found to have three healed fissures in the external anal sphincter. Upon general examination she was seen to be constipated or more accurately faecally loaded. Neither child had any other signs of bruising or recent injury. Dr Lauder and Dr Hamner gave evidence at the hearing.
Interviews
R has had four video-recorded interviews, E three, P four, D three and P and D a joint interview. In contrast to the detailed allegations of R and E implicating the mother, Mr R and Mr T, neither P nor D has made any allegation of sexual abuse against any of the adults. In addition to women police officers and social workers, two consultant child psychiatrists have taken part in some of the interviews. Dr Baker interviewed both P and D with Dr Heller watching the interviews. Dr Heller interviewed R in January 1996. In addition two further consultant child psychiatrists have been involved, Dr Briscoe who read the papers and saw the video-recordings and Dr Hodes who at one time had both R and briefly E as his patients. Dr Baker, Dr Heller and Dr Hodes gave evidence at the hearing and Dr Briscoe's report was before the judge.
Judgment
The judge gave a lengthy and careful judgment. He set out the salient features of the interviews with the four children and the allegations made which were, as he pointed out, the foundation of the local authority's case. He considered how they came to make the allegations to Ms W. He found:
'R is known to be untruthful and to be capable of carrying out extended deceptions. For example, he managed to continue his life under an assumed identity for at least a month in August 1995. He is also a very disturbed child. Further, as his statements in interview make clear, he is very angry towards the adults and in particular towards his mother. He believes that she failed properly to look after him and he is jealous of what he sees as her preference for Mr R.
Rather less is known about E, although she too alleges ill-treatment -sexual abuse apart - at the hands of her mother and Mr R. This might give her a motive for invention. In short, it is a matter of great concern that these two children should have made such specific and serious allegations of sexual abuse at the hands of these adults but, if the case depended upon their evidence alone, which is hearsay evidence as previously indicated, it would not in my judgment be sufficient to prove these serious allegations against these adults to the requisite standard.'
He then turned to consider the other evidence in the case. He concluded that the medical evidence was:
'... consistent either with sexual use of these ... children or, alternatively, with constipation. The findings in respect of D are noteworthy but they do not eliminate the possibility of constipation.'
He looked at the circumstantial evidence about R and E, the manifestations of unhappiness at home and the treatment of them by the mother and Mr R. He set out in some detail the psychiatric evidence about the interviews, the concerns of the psychiatrists, the significance attached by them to answers given by each of the children and their expert opinion that these children have been the subjects of sexual abuse at the hands of their mother, Mr R and Mr T. He saw all the video- recordings. He set out the explanations from the mother and Mr R both of whose evidence he found in many ways to be unsatisfactory.
In coming to his final conclusion about the allegations of sexual abuse he carefully reminded himself that the balance of the psychiatric evidence was unanimously to the effect that sexual abuse had probably occurred and he said:
'Given the expertise of those expressing this view, in my judgment this is an important aspect of the evidence.'
He then considered pointers to the contrary and concluded:
'In all the circumstances, therefore, I am not satisfied on the balance of probabilities that these serious allegations of sexual abuse are proved against these adults, contrary to the submission made by Mr Newton on behalf of the local authority, that there is no sensible explanation existing for the children making up these serious allegations. I conclude that there is a reasonable alternative on the evidence that I have heard which is just as likely to be correct as the possibility of sexual abuse.'
He set out his alternative proposition and added:
'It is implicit in what I have said that I likewise conclude that there is a real possibility that such abuse did occur, but in the light of the majority decision of the House of Lords in Re H and R (Child Sexual Abuse: Standard of Proof) [1996] 1 FLR 80, such a possibility cannot justify a conclusion that the threshold criteria are satisfied.'
The judge then made findings that R, E, D and P had suffered emotional abuse at the hands of the mother and Mr R and that D, P, B and A were likely to suffer significant harm in the future and he found the threshold criteria in s 31 of the Children Act 1989 were met. There is no appeal by the mother and Mr R against the findings of emotional abuse.
Issues on appeal
On the appeal Mr Newton for the local authority, supported by Mr McFarlane for the guardian ad litem, has raised two main issues:
(1) that the judge was plainly wrong not to find the allegations of serious sexual abuse proved on the balance of probabilities;
(2) that the judge, having found that there was a real possibility that such abuse had occurred, 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.
Mr Newton also raised in his skeleton argument but did not pursue in oral argument the question whether the judge correctly directed himself on his approach to the expert psychiatric evidence.
(1) Evidence of sexual abuse
Both the skeleton arguments of Mr Newton and Mr McFarlane set out in great detail an analysis of the judgment and the judge's approach to the volume of evidence over the 15-day hearing. Mr Newton asked us to find that the judge had failed properly to examine all the pieces of evidence or to put them together to form an overall picture which clearly portrayed abuse. He submitted that if a proper approach had been adopted a finding of serious sexual abuse perpetrated by the mother and Mr R would have been inevitable. He further submitted that the Court of Appeal should set aside the judge's findings in respect of the allegations and make our own findings of sexual abuse. On the basis of such findings we should ourselves make full care orders in respect of the four younger children.
The main evidence to which our attention was directed was the paediatric and psychiatric. There was one element only in the medical evidence, the presence of three healed fissures found in D's external anal sphincter. The paediatric experts considered that the fissures were noteworthy and raised concern but were not diagnostic of abuse. Mr Newton criticised the judge for failing to give sufficient weight to the expert opinion as to the reasons for these injuries and the absence of evidence of constipation as an alternative possibility for the injuries.
Mr Newton has criticised the judge for his failure to give proper weight to or take sufficient account of a number of factors that the three child psychiatrists considered pointed to the truth of the allegations of sexual abuse. He dissected the judgment to show, as an example, that the judge may have in one place slightly underestimated the degree of concern expressed by Dr Heller. We have also been asked to find that the alternative explanations of the facts suggested by the judge are implausible and far-fetched and that the judge ought not to have relied upon them.
Mr Newton has sought to demonstrate a sufficient number of errors of detail so as to attempt to cast doubt upon the conclusions of the judge. Whatever might be the success of this approach in other cases, and in our view, it would only be in the rarest case that it would succeed, Mr Newton has singularly failed to do so in this case.
The judgment, which was reserved only for 24 hours, is a model of clarity and cohesion. The facts were set out clearly; the judge correctly directed himself as to his approach to the factual disputes which he carefully explored. He looked at alternative explanations; he most carefully took into account the expert evidence; he made clear findings of fact and gave reasons for the conclusions which he reached. He was not satisfied upon the evidence that the sexual abuse was proved. He was, to the surprise of the local authority, satisfied that there had been a much more serious degree of emotional abuse than the local authority perceived, sufficient to meet the threshold criteria for a care order. It was an extremely worrying and anxious case, which left the judge, as it must leave any court which has studied the evidence, with feelings of suspicion and concern for these children. That residual suspicion should not, and did not in this case, obscure the duty of the judge, and the judge alone, to make up his mind on the facts and come to a decision.
Once the judge has made a decision in a child case, it is not for the Court of Appeal to second-guess the judge, to trawl through the evidence on paper, to consider whether the judge has given sufficient weight to one matter or too great weight to another matter, nor to allow minor discrepancies to provide the opportunity for a rehearing of the facts and a fresh exercise of discretion. That is properly the function of the trial judge, who has been immersed in the case and has that unique opportunity, denied to the appellate court, of seeing and hearing the witnesses and gaining the feel of the case. It is the function of the appellate court to make sure that the judge has correctly directed himself to and applied the relevant law, has properly approached his task in deciding disputed facts and has not erred in principle. The appellate court then has to stand back and consider whether his decision is plainly wrong. If he is not, it is not for the appellate court to intervene.
Lord Fraser of Tullybelton, in G v G (Minors: Custody Appeal) [1985] FLR 894, 898H referred to:
'... the desirability of putting an end to litigation [in child cases] is particularly strong because the longer legal proceedings last, the more are the children, whose welfare is at stake, likely to be disturbed by the uncertainty.'
In the present case there is further litigation over these children but it is equally appropriate to bring to an end an arid area of dispute which may distract those engaged in important assessments of the future of these children from concentrating on the relevant issues.
Subject to the second part of the appeal which raises an issue of law and in respect of which leave was rightly granted, the issues raised on the first part of this appeal are unappealable and without any prospect of success. On several occasions in the last year or so, such as in Re N (Residence: Hopeless Appeals) [1995] 2 FLR 230, this court has expressed a view about the bringing of hopeless appeals in an effort to discourage continuation of litigation over children which has no prospect of success. The new requirement for leave acts as a useful filter but we strongly urge those advising litigants, whether individuals or local authorities, to hesitate before seeking to set aside the trial judge's assessment of these serious issues raised in child applications.
(2) Future risk
We now turn to consider the question of law that has arisen on this appeal.
Where a court is faced with an application for a care order under s 31 it must first consider whether the requirements of that section are met. If they are then the court is given a discretion as to what to do, but in exercising that discretion the court must act in accordance with s 1 of the Act. These two stages have conveniently been described as, respectively, the 'threshold' stage and the 'welfare' stage.
The decision of the House of Lords in Re H and R (Child Sexual Abuse: Standard of Proof) [1996] 1 FLR 80 provides clear guidance on the threshold stage. The appeal was concerned with the need (under s 31(2)(a)) for the court to be satisfied that the child is suffering significant harm or is likely to do so. The House of Lords held that in either case the standard of proof required was the ordinary civil standard of the preponderance of probability, and that the word 'likely' meant a real possibility. The question then arose as to what was required to establish such a real possibility. The primary case made by the local authority was that a Mr R had sexually abused one child and that it therefore was likely that he would abuse the other children unless they were taken into care.
The judge held that the allegation of sexual abuse by Mr R had not been made out, though he expressed himself as 'more than a little suspicious' that Mr R had abused the child and would have been prepared to hold that there was a real possibility that such abuse had occurred. The local authority submitted that although it had not established that Mr R had abused the one child the real possibility that he had done so was sufficient to satisfy the court that the other children were likely to suffer significant harm through sexual abuse by Mr R.
By a majority the House of Lords rejected this submission on the grounds that the court must base its conclusion on facts, not on judicial or other suspicions or doubts. There was only a risk to the children if Mr R had in fact abused the other child. In the absence of proof of that fact on the preponderance of probabilities there was nothing to suggest that the other children were at risk of harm. As Lord Nicholls said (at 101F):
'To decide that the others are at risk because there is a possibility that D1 was abused would be to base the decision, not on fact, but on suspicion: the suspicion that D1 may have been abused.'
In the case before us Mr Newton submitted that the House of Lords were concerned only with the threshold stage and that the majority view had no relevance to the welfare stage. So far as the latter stage was concerned, he submitted that since the judge in the present case was also clearly of the view that there was a real possibility that the children had been sexually abused, this was sufficient to establish that the children were at risk of suffering like harm in the future. Since a risk of harm is included in the welfare checklist set out in s 1(3) the judge was wrong to exclude it from consideration. Mr Newton submitted that the justification for approaching s 1 in a way rejected by the House of Lords for s 31 was that under s 1 the welfare of the child was the paramount consideration, which justified and indeed required the court to act on possibilities rather than proof on the preponderance of probability. These submissions were supported by Mr McFarlane.
In our judgment these submissions cannot be supported. They amount to the assertion that under s 1 the welfare of the child dictates that the court should act on suspicion or doubts, rather than facts. To our minds the welfare of the child dictates the exact opposite.
Section 1(3) requires a court, when considering whether, among other things, to make an order under s 31, to have regard in particular to a number of matters. The subsection then sets out those matters in the welfare checklist. Item (e) of this list is: 'any harm which [the child] has suffered or is at risk of suffering'.
If there is a dispute as to whether the child has suffered or is at risk of suffering harm the task of the judge, when considering whether to make any order whether it be a care or supervision order under s 31 or a s 8 order, must be to resolve that dispute. Unless this is done, it will remain in doubt whether or not the child has suffered harm or is at risk of suffering harm and thus it will remain in doubt whether or not there exist factors which Parliament expressly considered to be of particular importance to be taken into account. The question is how such a dispute is to be resolved.
To our minds there can be only one answer to this question, namely the same answer as that given by the majority in Re H and R (above). The court must reach a conclusion based on facts, not on suspicion or mere doubts. If, as in the present case, the court concludes that the evidence is insufficient to prove sexual abuse in the past, and if the fact of sexual abuse in the past is the only basis for asserting a risk of sexual abuse in the future, then it follows that there is nothing (except suspicion or mere doubts) to show a risk of future sexual abuse.
Mr Newton submitted that this is not so. His point was that if there is a real possibility of harm in the past, then it must follow (if nothing is done) that there is a risk of harm in the future. To our minds, however, this proposition contains a non sequitur. The fact that there might have been harm in the past does not establish the risk of harm in the future. The very highest it can be put is that what might possibly have happened in the past means that there may possibly be a risk of the same thing happening in the future. Section 1(3)(e), however, does not deal with what might possibly have happened or what future risk there may possibly be. It speaks in terms of what has happened or what is at risk of happening. Thus what the court must do (when the matter is in issue) is to decide whether the evidence establishes harm or the risk of harm.
We cannot see any justification for the suggestion that the standard of proof in performing this task should be less than the preponderance of probabilities. Were such a suggestion to be adopted, it would mean in effect that instead of acting on what was established as probably the case, the court would have to act on what was only possibly the case, or even on the basis of what was probably not the case. This, as Lord Nicholls pointed out in Re H and R (above), is the same as saying that the court should act on the basis of suspicion rather than on the basis of fact.
Such a proposition has to our minds only to be stated to be rejected. The same applies to the suggestion that the paramountcy of the welfare of the child requires such a method of proceeding, for this equally entails the proposition that the future of the child should be decided on the basis of suspicion rather than fact. We can find nothing in the Children Act which begins to suggest that Parliament intended that all-important decisions as to the future of a child should be made on such a basis which to our minds would be a recipe for making decisions which were not in the best interests of the child.
Mr Newton suggested that it is inappropriate in the context of s 1 and the welfare principle to apply the ordinary rule in civil proceedings that something which is established on the preponderance of probabilities should be treated as certain, while something which is not so established should be treated as not having happened at all. We disagree, for this really amounts to no more than saying that the court may get it wrong in deciding whether or not a fact exists. Courts do indeed on occasion get it wrong, but this is because of the fallibility of human institutions. Such fallibility cannot be cured by adopting the test Mr Newton propounds, for the scope for going wrong would be broadened, not narrowed, were the court to proceed not on the basis of proven facts, but on the basis of suspicion.
Mr Newton sought to draw support for his submission from a number of cases in wardship proceedings before the Children Act came into effect, where he submitted that the courts had accepted the validity of his approach. We are not convinced by these submissions. In the cases cited there is to our minds no detailed analysis of the question. More importantly, the cases were not concerned with s 1 of the Children Act, which is part of a new code for children and which (as Lord Nicholls observed at the end of his speech in Re H and R (above)) is to be approached and interpreted accordingly.
Finally, we find support for our analysis of the position from the odd results which would follow were Mr Newton's submissions to be accepted.
First, it would be extraordinary if Parliament intended that evidence which is insufficient to establish that a child is likely to suffer significant harm for the purposes of s 31 should nevertheless be treated as sufficient to establish that a child is at risk of suffering harm for the purposes of s 1. Were this so, then as Miss Ball QC (on behalf of the mother and Mr R) submitted, the result would be that where a case was proved, sufficient to surmount the threshold stage and remove the child, but the concerns were capable of resolution and the children returned home, the court could make a care order permanently removing the child from its home on the basis of allegations which were not proven for the purposes of s 31; whereas in the absence of the other concerns, the court could not make any order at all. We agree with Miss Ball that this would produce a random result which could not have been intended by Parliament.
Secondly, it is clear from the speech of Lord Nicholls in Re H and R (above) that s 31 provides, among other things, protection for parents. He said at 102C:
'They are not to be at risk of having their child taken from them and removed into the care of the local authority on the basis only of suspicions, whether of the judge or of the local authority or anyone else.'
That protection would be entirely removed in circumstances similar to those of the present case, if on reaching the second stage for reasons which might well not justify permanently removing the children, the court could act on the basis of such suspicions to make an order for permanent removal which would not be justified on the matters that had been properly proved.
Thirdly, the submission, if adopted, would be to create a fundamental difference between public and private law cases; for whereas the local authority would have to surmount the threshold stage by proving matters on a preponderance of probabilities, one parent seeking, for example, permanently to exclude the other parent from any relationship, such as contact, with the child, would only have to establish possibilities rather than probabilities. Again we can find nothing in the Act which suggests that Parliament intended this to be the position nor any good reason why it should have done so.
In conclusion we should emphasise, just as Lord Nicholls did in Re H and R (above), that what the evidence is required to establish depends upon the issue the court has to decide. Thus where (under Part V of the Act) a local authority are under a duty to investigate where they have 'reasonable cause to suspect' that a child is suffering or likely to suffer harm, the court has to be satisfied that the applicant does have such reasonable cause, not that the child is actually suffering or likely to suffer harm.
In the present case, however, the question is the latter, not the former; and for the reasons we have given, the court can only have regard to any harm that the child has suffered or is at risk of suffering if satisfied on the balance of probabilities that such harm or risk of harm in fact exists. In our view risk of harm means the real possibility of future harm. Lord Nicholls said in Re H and R at 101C:
'It is, of course, open to a court to conclude there is a real possibility that the child will suffer harm in the future although harm in the past has not been established. There will be cases where, although the alleged maltreatment itself is not proved, the evidence does establish a combination of profoundly worrying features affecting the care of the child within the family. In such cases it would be open to a court in appropriate circumstances to find that, although not satisfied the child is yet suffering significant harm, on the basis of such facts as are proved there is a likelihood that he will do so in the future.'
That passage sets out, in our view, the correct approach to the question how to assess any harm the child is at risk of suffering in s 1(3)(e) of the welfare test.
(3) Expert evidence
Many if not all family law cases involving children feature expert opinion evidence. Recently the proper limits of such evidence have been the subject of a number of decisions. A conflict exists between obiter dicta of this court in Re S and B (Minors) (Child Abuse: Evidence) [1990] 2 FLR 489 (since followed - also obiter - by two other Court of Appeal decisions) and the Civil Evidence Act 1972 - which was not cited to the court in any of those three decisions. This conflict has been and is the source of much unnecessary forensic activity, and should be resolved. The point in question was taken in this appeal, though not persisted in. We think it right to express our views on this point in an attempt to resolve the conflict.
In cases involving children, expert medical and psychiatric evidence from paediatricians and allied disciplines is often quite indispensable to the court. As Parker LCJ said in Director of Public Prosecutions v A and BC Chewing Gum Ltd [1968] 1 QB 159, 165A, when dealing with children, the court needs 'all the help it can get'. But that dependence in no way compromises the fact that the final decision in the case is the judge's and his alone.
In cases involving suspected child abuse, the expert evidence may relate to the presence and interpretation of physical signs. But it may also relate to the more problematic area of the presence and interpretation of mental, behavioural and emotional signs. That evidence often necessarily includes if not a conclusion, at least strong pointers as to the witness's view of the likely veracity of the child (ie credibility): indeed, his diagnosis and the action taken by the local authority may depend on the conclusion reached. The evidence also frequently includes a conclusion as to whether or not the child has been abused. At one time it was thought 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. To give such evidence was said to 'usurp the function of the jury', a reason Wigmore was particularly scornful of, condemning it as 'empty rhetoric' (see Evidence in Trials at Common Law (Little, Brown, 3rd edn, 1983), vol 7, para 1920). First, the witness is not attempting to 'usurp' the judge or jury's function - at worst he is simply offering as evidence that which is not, and secondly he could not usurp it if he would, because no power could compel the judge or jury to accept it, and they know the decision is theirs. Wigmore was equally dismissive of the dicta that opinion evidence on the ultimate issue was inadmissible:
'The fallacy of this doctrine is, of course, that it is both too narrow and too broad, measured by the principle. It is too broad because, even when the very point in issue is to be spoken of, the jury should have help if it is needed. It is too narrow, because opinion may be inadmissible even when it deals with something other than the point in issue. Furthermore, the rule if carried out strictly and invariably would exclude the most necessary testimony. When all is said, it remains simply one of those impracticable and misconceived utterances which lack any justification in principle.'
The Law Reform Committee was asked to consider this question. A strong committee was set up. Its members included those who were or subsequently achieved the following offices: two Lords of Appeal, five members of the Court of Appeal, a Vice-Chancellor and Professors Guest and Heuston. That committee recommended (17th Report, Cmnd 4489 (1970)):
'63. Although expert witnesses have for long been allowed to express their opinions on matters in issue (eg as to value, cause of death, etc) the rule which we discussed in paragraph 4 prohibiting a witness from expressing his opinion on the ultimate issue for decision in the case applies to expert witnesses as well as witnesses of fact. Where the issue is whether a person holding himself out as possessing reasonable skill and competence in some specialised field did act with reasonable skill and competence, the opinion of an expert in that field as to whether that person did so or not is a useful aid to the judge who has to decide the issue. We think that the rule has even less justification in the case of expert witnesses than in the case of witnesses of fact and we see no reason why an expert witness should not be asked the direct question as to his
opinion on an issue in the action which lies within the field of his expertise.
The rule which excludes this evidence is frequently ignored in practice even in criminal proceedings. [And then the committee quotes a passage from Lord Parker CJ in Director of Public Prosecutions v A and BC Chewing Gum Ltd [1968] 1 QB 159, 164 which we cite later.]
We accordingly recommend that a statement by an expert witness, whether given orally in the witness-box or in writing in a report, shall not be inadmissible upon the ground only [emphasis added] that it expresses his opinion on the issue in the proceedings, and that a question put to him to elicit his opinion on such issue, if it lies within the field of his expertise, should be permissible.'
That recommendation led directly to the Civil Evidence Act 1972. Relevant for our purposes is s 3:
'Admissibility of expert opinion and certain expressions of non-expert opinion
(1) Subject to any rules of court made in pursuance of Part I of the Civil Evidence Act 1968 or this Act, where a person is called as a witness in any civil proceedings, his opinion on any relevant matter on which he is qualified to give expert evidence shall be admissible in evidence.
(2) It is hereby declared that where a person is called as a witness in any civil proceedings, a statement of opinion by him on any relevant matter on which he is not qualified to give expert evidence, if made as a way of conveying relevant facts personally perceived by him, is admissible as evidence of what he perceived.
(3) In this section "relevant matter" includes an issue in the proceedings in question.'
So it is right to say (as the textbooks do) that the ultimate issue rule has been abandoned (unmourned by the ghost of Wigmore and the editor of Cross and Tapper on Evidence - see (Butterworths, 8th edn, 1995), p 552).
The Criminal Law Revision Committee also recommended abrogating the rule. While this has not happened, evidence that would technically offend it is frequently admitted in criminal courts.
Lord Taylor CJ said in a criminal case R v Stockwell (Christopher James) (1993) 97 Cr App R 260, 265:
'The rationale behind the supposed prohibition [on the ultimate issue question] is that the expert should not usurp the functions of the jury. But since counsel can bring the witness so close to opining on the ultimate issue that the inference as to his view is obvious, the rule can only be ... a matter of form rather than substance.'
That is why we find the suggestion (to be found in the authorities) that it is prejudicial for a judge to hear such evidence difficult to justify.
And even in criminal cases, where the evidence is relevant, expert opinion evidence on the ultimate issue has for a long time been received even before juries. Thus Lord Parker CJ said (Director of Public Prosecutions v A and BC Chewing Gum Ltd [1968] 1 QB 159, 164):
'I myself would go a little further in that I cannot help feeling that with the advance of science more and more inroads have been made into the old common law principles. Those who practise in the criminal courts see every day cases of experts being called on the question of diminished responsibility, and although technically the final question "Do you think he was suffering from diminished responsibility?" is strictly inadmissible, it is allowed time and time again without objection. No doubt when dealing with the effect of certain things on the mind science may still be less exact than evidence as to what effect some particular thing will have on the body, but that, as it seems to me, is purely a question of weight.'
And the criminal law also recognises that such opinion evidence may be inroads'. This is shown not only by the exceptional case of Lowery (Christopher Russell) v The Queen [1974] AC 85, but by a line of cases dealing with the expert evidence of psychologists on the reliability of confessions made by those on or below the borderline of mental handicap (see R v Silcott and Others (1991) The Times, 9 December). This is now an accepted area for expertise. Ten years before such evidence would have been rejected. But now:
'It is possible to discern a more indulgent attitude [to the reception of expert evidence as to the defendant's mental state] in the Court of Appeal (and in the practice of judges in the Crown Court) in recent years.'
Archbold Criminal Pleading, Evidence and Practice
(Sweet & Maxwell, 44th edn), para 4-339 and see the cases there cited.
Against that background it is not surprising that family law judges have received (without it would seem objection, demur, embarrassment, or prejudice) expert opinion evidence, including evidence as to the accuracy or truthfulness of child complainants. Johnson J in Note: Re B (Child Sexual Abuse: Standard of Proof) [1995] 1 FLR 904 lists a few out of many possible examples where experienced family judges have admitted such evidence without question. While loyally following Re S and B (Minors), hewryly quotes Professor Spencer as commenting that the judgment of the court in that case had been given 'in a slightly conservative mood'. It would be curious if a non-adversarial trial before a judge to which the Civil Evidence Act 1972 applied were more restrictive as to the reception of expert evidence than a criminal trial before a jury to which the Act did not apply.
But this practice was challenged by obiter dicta of this court in Re S and B (Minors) (above). There wardship proceedings relating to child abuse were criticised as a result of the complaints of A, who had been abused, who admitted abusing her own children, and who had had psychiatric problems. The court accepted as an expert the psychiatric social worker, Miss Tranter (experienced in dealing with, and hearing accounts of abuse given by women who had themselves been abused and had abused their own children), to whom these allegations had initially been made. She believed that A was telling the truth, and said so in her report, which was received without objection. But on appeal it was argued that her evidence that A was telling the truth was inadmissible. But it seems that the court was never referred to the Civil Evidence Act 1972.
The majority of the court (Glidewell and Stocker LJJ) found that Miss Tranter, as an expert, could express her opinion on A's psychiatric state and her propensity to fantasise, and could support those opinions by her opinion that A's account was apparently credible, but:
'What ... was not admissible was any direct expression of opinion that A was telling the truth, and not telling malicious lies. The boundary between the two expressions of views is fine, but it does seem to me that [her] evidence crossed that line ...'
(Re S and B (Minors) (Child Abuse: Evidence) [1990] 2 FLR 489, 498E-F.)
But as the trial judge recognised that ultimately the question of credibility was for him, it was clear that he did not rely on her expression of opinion, and so the appeal failed.
In the analysis of the third member of the court, Sir Roualeyn Cumming-Bruce, the distinction was even finer. His view was that A was Miss Tranter's patient. As such, she had to form a view as to her veracity in deciding whether to act on or reject her allegations. He said (at 502G):
'I accept the submissions of Mr Cole as to the admissibility of their opinions as to A's veracity for the purposes of their assessments of A's veracity when they were forming a view of A as a patient and had to decide whether she was so unbalanced that her account of her experiences as victim of her mother, her stepfather, and her brother Mr B, ought to be rejected as the illusions of an unbalanced mind. As this was a prominent part of the defendants' attack on her credibility their opinions as to A's veracity were relevant and the judge was right to admit those opinions. The opinions of Miss Tranter and Dr Little were thus relevant in the context of their testimony, but irrelevant and inadmissible on the issue whether A's evidence should be rejected on the alternative ground propounded by the defendants to the effect that her accusations were not the illusions of a disordered mind but deliberate fabrications concocted out of malice and spite, motivated by an attempt to destroy the family relationships of other members of her extended family as a compensation for her sense of the loss of her own children.'
The only legal reason given by the court for finding her opinions on A's veracity inadmissible for some (but not for all) purposes is that this was ultimately a question for the court. But that objection would seem to be insufficient after the passing of the Civil Evidence Act 1972, which makes clear (see para 63 of the Report) that the evidence cannot be held inadmissible only on that ground. It seems to us that the obiter remarks were made per incuriam.
Two further decisions of the Court of Appeal have followed that authority: Re FS (Child Abuse: Evidence) [1996] 2 FLR 158 (with dicta as to
'usurping the function of the judge'), and Re N (Child Abuse: Evidence) [1996] 2 FLR 214. Unfortunately, in neither of these cases was the court referred to the Civil Evidence Act 1972, and we do not believe that those courts would have expressed themselves in the terms they did had they been aware of that Act. Accordingly we regard those obiter remarks also as having been made per incuriam.
Wall J in Re K (Minors) (unreported) 4 March 1996 rejected the per incuriam submission that we have accepted above.
The submission rejected by him (made by Mr Cryan for the Official Solicitor) was that the 'issue' in s 3(3) can be the ultimate issue, and can include an issue of credibility. As a matter of construction, both of those submissions seem to us to be plainly right. But that is not the end of the story. The legal limitation imposed by the section is that the expert's opinion must be on a matter on which he is qualified to give expert evidence. Thus a witness's evidence as to the right answer on the ultimate issue will often be inadmissible because he has no expertise on the final question, eg whether adult A's evidence should be preferred to adult B's. It would not (because of the Act) be inadmissible because it went to the ultimate issue or usurped the judge's function. But it would be inadmissible as not being relevant. As we shall seek to demonstrate, the practical limitations on the Act lie not in its wording, but first, in the over-arching requirement of relevance, and secondly (more questionably) on the court's discretion under s 5(3).
Wall J did not reach his decision by construing the 1972 Act himself. He relied primarily on the Court of Appeal case of Liddell v Middleton (unreported) 7 July 1995 and in particular Stuart-Smith LJ's statement that:
'But [s 3 of the Civil Evidence Act 1972] in no way extends the principle upon which expert evidence is admissible.'
When that sentence is read in context it is clear that it does not bear the construction Wall J seeks to impose on it. The court was there dealing with a claim for personal injuries arising from a traffic accident. In some traffic accidents there is scope for expert evidence to assist the court. But this was not one of those cases: expert evidence was 'entirely irrelevant and inadmissible'. The reason for that lay in the fact that the primary evidence did not involve technical matters (such as length of skid marks) that required expert interpretation, but simply the evaluation of eye-witness accounts, on which the so-called expert had nothing to contribute that was outside the competence and experience of a layman. His evidence was inadmissible because it was not relevant. Had the evidence been relevant (ie going to a matter on which a layman would require instruction on the essentials of the necessary field of expertise to make a properly informed decision) then s 3 makes clear that such evidence is admissible whether or not it goes to an issue (or even in appropriate circumstances the ultimate issue) in the litigation.
But while Wall J was wrong in his construction of s 3, we have no reason to believe that he was wrong in holding the doctor's evidence on the credibility of two women giving evidence of abuse of them when they were children dealt with an issue that did not require his expertise. The evidence was inadmissible because irrelevant, and not because it went to the ultimate issue in the case. Thus the requirement of relevance will usually lead to the same result as the old ultimate issue rule, which as Wigmore suggested, is at once 'too narrow and too broad' (see above).
So the passing of the Act should not operate to force the court to, in Wigmore's words, 'waste its time in listening to superfluous and cumbersome testimony' provided that the judge never loses sight of the central truths: namely that the ultimate decision is for him, and that all questions of relevance and weight are for him. If the expert's opinion is clearly irrelevant, he will say so. But if arguably relevant but in his view ultimately unhelpful, he can generally prevent its reception by indicating that the expert's answer to the question would carry little weight with him. The modern view is to regulate such matters by way of weight, rather than admissibility.
But when the judge is of the opinion that the witness's expertise is still required to assist him to answer the ultimate questions (including, where appropriate, credibility) then the judge can safely and gratefully rely on such evidence, while never losing sight of the fact that the final decision is for him.
In summary, there were four problems arising from the court's decision in Re S and B:
(i) The fact that the Civil Evidence Act 1972 was clearly relevant but not referred to.
(ii) The question under the ultimate issue rule was both too wide and too narrow, for the reasons given by Wigmore.
(iii) That the test there put forward led to impossibly fine distinctions. Ward LJ (in Re N) recognised that:
'One cannot ... expect the subtleties of the law of evidence to be understood by the child psychiatrist and the child psychologist. Experience shows that the subtleties are not always understood by the legal practitioners.'
The law of evidence should not be subtle and difficult to understand. And fine distinctions should be only tolerated if both unavoidable and uer-friendly - ie easy to make.
(iv) The state of the authorities meant that the finding that the expert's opinion on an issue that was ultimately for the court was inadmissible provided a fertile ground for appeal on the basis that the evidence was in law admissible under the 1972 Act and consequently that in not admitting it the court had not given it any weight while it deserved some.
The result of those four problems is that what should be a simple matter of assessment of the weight of evidence for the trial judge has become a legal minefield. By way of illustration from this case, Connell J received evidence from three experts that in their opinion sexual abuse of the children had occurred. He disagreed with their conclusion, as he was entitled to once he had taken their evidence into account (as he had). He said:
'In my judgment, however, it is a proper function of the expert to draw attention to the particular passages in the course of interviews which they
believe are significant and relevant to the issues which fall for decision by the court.'
To that he need only have added that, having taken account of those matters, he derived little or no additional assistance from the experts' expressed conclusion that abuse probably had occurred, for the reasons he gave. But instead he was faced with a complicated task. First, he had to draw the fine line distinguishing this case from Re S and B. Secondly, he had to acknowledge the Civil Evidence Act 1972, saying that in the light of that he paid 'careful attention to those passages to which they referred'. But he was still appealed on the basis that (and we quote from the guardian's skeleton argument):
'... the judge erred in failing to regard as admissible evidence the conclusions of the expert witnesses which it is submitted were admissible by virtue of the Civil Evidence Act 1972, s 3(1) and (3) [Rayden and Jackson Divorce and Family Matters (Butterworths), vol 2, p 2426].
Whilst it must be accepted that the ultimate decision on the issue remained a matter for the judge, if he had regarded the expert's conclusions as admissible, given the even balance of evidence found by the judge on the other aspects of the case, the judge must have inevitably found that the sexual abuse allegations were proved.'
While that ground of appeal was not pressed before us, we regard the current state of the authorities as unsatisfactory, distracting, wasteful of court time at first instance and unnecessarily productive of appeals. For those reasons, and as it seems that there was no authority from this court dealing with the Civil Evidence Act 1972 in this context, we felt that it required our attention despite the fact that it was not argued before us.
Lastly we consider s 5 of the Civil Evidence Act 1972:
'Interpretation, application to arbitrations etc and savings
...
(3) Nothing in this Act shall prejudice -
(a) any power of a court, in any civil proceedings, to exclude evidence (whether by preventing questions from being put or otherwise) at its discretion; ...'
We take that subsection to assume that the court has a discretionary power to exclude admissible (ie relevant) evidence. But the statute does not define what that power is. Phipson on Evidence (Sweet & Maxwell, 14th edn, 190), p 705 states that:
'The courts have on occasions disclaimed any general discretion in civil cases to exclude evidence.'
The editors then go on to deal with two limited exceptions not relevant to this appeal. While this is not the occasion to find that the court has such a power, still less to define it, in our judgment there plainly should be some such power in the court, particularly in the modern era of the interventionist judge, and a fortiori in non-adversarial proceedings such as these.
We would draw attention to rr 102 and 403 of the American Federal Rules of Evidence. Rule 102 requires the trial judge, while securing fairness:
'... to eliminate unjustifiable expense and delay to the end that the truth may be ascertained and the proceedings justly determined.'
Rule 403 provides:
'Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issue, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.'
The introduction of such a rule into criminal law was recommended by the Royal Commission on Criminal Justice (Cmnd 2263 (1993)) chaired by Lord Runciman. We are clearly of opinion that the judge in proceedings such as these should have such a power. We express no opinion on whether he presently has it or not.
We dismiss the appeal.
Appeal dismissed. Leave to appeal to the House of Lords (local authority's application) refused.
PATRICIA HARGROVE
Barrister
