The Law Commission

PART III

THE CIVIL LAW OF CHILD PROTECTION

3.1      Where there is a suspicion that a child has been a victim of non-accidental injury, civil proceedings may be initiated by a local authority (or the NSPCC) under Part IV of the Children Act 1989. If the child has survived the injury, these proceedings may be brought to protect the child from a risk of further injury. Where the child has died as a result of abuse, civil proceedings may be used to protect other children in the household, or other children who are being cared for by a person who is suspected of causing the child's death. As a result, family courts, as well as criminal courts, will often deal with cases in which it is clear that the child has suffered a non-accidental injury, but it is unclear who inflicted the injury.

Views of respondents to the informal consultation paper

3.2      At the outset it must be recognised that the family and criminal courts fulfil very different roles. Concern was expressed by a number of respondents to our informal consultation paper that reform of criminal proceedings in the context of non-accidental injury to children should not hamper the work which is done in the family courts.
3.3      Dame Elizabeth Butler-Sloss, President of the Family Division, expressed strong concern about this type of case. She noted that the family courts are often faced with the type of situation in which a child has been killed or injured whilst in the care of one or more adults and it is unclear which carer is responsible. On occasion it may be that the family court finds that the adult has injured the child, despite an acquittal in the Crown Court. She highlighted the difficulty which the family courts face in establishing the best means of protecting other children in the family who may be thought to be at risk from the adult suspected of having committed the offence.
3.4      Hughes J, drawing on his experience as a judge in the family jurisdiction, highlighted in his response to the informal consultation paper the differing aims of the family and criminal jurisdictions. However, he went on to add:

[T]he family experience does teach one thing. Even with very wide inclusionary rules of evidence, including (a) the ability to draw whatever conclusions appear justified from an absence of explanation or account of movements, and (b) the power (if safe) to take into account the out-of-court statements of others, and even with a different standard of proof, there are some cases in which it is impossible to say which of two or more possible culprits was responsible. It follows that there will inevitably be such cases, and no alteration of the rules of law or evidence will change that fact.

It must therefore be acknowledged that even if all the material evidence can be admitted before the jury, the nature of these cases is such that in some cases the jury, even with all the information, could not be sure which defendant is guilty. In these circumstances the prosecution would rightly fail as our judicial system requires that the jury be sure of a defendant's guilt before convicting him or her. Whilst recognising that point, it is, nonetheless, important to do all that can properly be done to ensure that the jury has all the relevant evidence to enable them to make a decision as to the defendant's guilt or innocence.

3.5      Some of our judicial respondents stressed the danger of seeking a scapegoat through criminal prosecution in order to remedy the wrong done to the child. In many of these cases emotions run high, often fuelled by their being reported in the media, and some of our respondents suggested that the effect of this may be that the jury will want to hold someone responsible for the death or serious injury of the child. A potential danger was highlighted that a carer may be treated by the jury as presumptively guilty, regardless of the contrary directions of the judge.
3.6      We are aware of this risk. The procedural reforms which we are minded to recommend and which we set out in detail in Part VI, impose a duty on the judge to withdraw the case from the jury at the end of the defence case if, in his judgment, a conviction would be unsafe or the trial would be unfair.
3.7      We would, nonetheless, point out that there have been many cases which have aroused public outrage and strong emotions, reflected by media coverage, but which have been successfully tried by juries. It would mark a serious departure from established principles of criminal procedure to contemplate that truly horrific cases should not be tried by juries.
3.8      One senior circuit judge acknowledged that there was much wisdom and good sense, as well as humanity, in the opinion of Professor Glanville Williams, cited in the informal consultation paper,^[1] that there are many cases in which "[t]he criminal process, as distinct from care proceedings, can do little good in these situations, and can do much harm".^[2] In making this point he drew attention to the current "unattractive tendency nowadays, encouraged by certain sections of the media, to try to make somebody pay (and pay in a painful and humiliating way) for any incident in which something has gone wrong and somebody has been killed or seriously injured". He stated, and we agree, that the instinct to use the criminal courts in order to give effect to this attitude should not be at the expense of compromising the important role which is fulfilled by the family courts.
3.9      Some respondents emphasised that caution should be exercised. For example, Crane J stated:

My preliminary comment is that one should be cautious about changing the criminal law in one area with the result that it is inconsistent with that in other areas. The greater scope for ascertaining the truth and protecting children in the family jurisdiction should be given great weight.

He went on to add that, in his opinion, there should be greater recognition of the powers of the family courts and, in particular, he suggested that there should be greater willingness on the part of the family courts to give judgment, even if anonymised, in public. He added "I suggest that judges in the Crown Court should when appropriate more often draw attention to the alternative remedies available".

3.10      Concern was also expressed by a number of respondents that a more appropriate means of dealing with this problem would be to improve the services which are available. For example one experienced High Court judge argued that:

… the only real way to improve the prospects of convicting the correct carer … is to improve the evidence that it was one rather than the other carer who was responsible … by ensuring that health visitors and other professionals who have regular contact with every child meet all carers, ask about any concerns in relation to the welfare of the baby and at the same time assess and note in writing family conditions.

3.11      This was echoed by Professor Ormerod who stated:

An ideal response to the problem must come in the shape of a multi-agency approach with the most careful legal investigation and prosecution supported by better monitoring of parenting, better education of parenting skills and broader public awareness of the frequency of these terrible crimes.

3.12      The Criminal Bar Association offered its perspective on the role of the Family Division in this type of case in its response. It suggested that the nature of civil proceedings makes the family courts a more appropriate forum for dealing with this type of case. Reference was made to the fact that the child's interests are paramount in the civil courts and that the perspective is forward looking, as opposed to the approach in the criminal courts, in which the emphasis is on "whether and, if so, to what extent, to mete out punishment".
3.13      We have a great deal of sympathy with the view expressed in these various comments. We would not wish any changes in criminal law and procedure to be such as would increase the prospect of a criminal conviction at the expense of cutting across the effectiveness of the civil system for protecting the interests of children at risk. Rather, we believe that the criminal law should support the civil law which protects children but that measures must be taken in order to improve the effectiveness of the criminal law in prosecuting those responsible for this type of crime. We believe that the measured and carefully considered package of recommendations which we are minded to make would preserve the balance of interests between the two jurisdictions. In the light of these comments, we now summarise the current operation of the civil law of child protection.

The legal framework for civil proceedings

3.14      Although this report is concerned with reform of the criminal law, it is important to recognise the wide-ranging powers which are available to the courts. The Children Act 1989 sets out both the 'public' and 'private' law remedies relating to children. A wide range of orders is available to the family court in order to safeguard and promote the interests of children. The family courts can control the exercise of parental responsibility through granting residence orders, contact orders, prohibited steps orders and specific issue orders.^[3] In the context of child protection, the family court has power to protect children using both short- and long-term orders. For example, emergency protection orders last for eight days, can be extended by seven days and are subject to review after 72 hours. These orders are available where the court is satisfied that there is reasonable cause to believe that the child is likely to suffer "significant harm".^[4] Other measures to ensure the immediate protection of children from threatened harm include police protection^[5] and child assessment orders.^[6] Where longer-term protection is required, the family court may make care or supervision orders and these orders are available on an interim basis.^[7] Where a court makes an interim care order, or an emergency protection order, an "exclusion requirement" may sometimes be included, which will allow the child to remain at home, provided that an unidentified person who is a threat to the child is kept away.^[8]
3.15      Section 31(2) of the Children Act 1989 establishes a 'significant harm' test:

A court may only make a care order or supervision order if it is satisfied-

(a) that the child concerned is suffering, or is likely to suffer, significant harm; and

(b) that the harm, or likelihood of harm, is attributable to-

(i) the care given to the child, or likely to be given to him if the order were not made, not being what it would be reasonable to expect a parent to give to him; or

(ii) the child's being beyond parental control.

3.16      This provision has been considered many times by the Court of Appeal and House of Lords.

The standard of proof

3.17      Criminal proceedings require proof 'beyond reasonable doubt'. The standard of proof required in care proceedings was considered by the House of Lords in Re H (Minors) (Sexual Abuse: Standard of Proof).^[9] A stepfather was accused by his 15-year-old stepdaughter of having raped her over a period of years from when she was seven or eight. He was charged with rape and was acquitted. The judge in the care proceedings was unable to say, with sufficient certainty, on the standard of proof which he applied, that this rape had occurred. Lord Nicholls considered the content of the standard of proof on the preponderance of probability, which is the standard of proof in such proceedings. He explained that a court will be satisfied that an event occurred if it considers that "on the evidence, the occurrence of the event was more likely than not".^[10] He went on, however, to explain that the court will take into account 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".^[11] He gave a number of examples to support this, such as that fraud is usually less likely than negligence, and deliberate physical injury is usually less likely than accidental physical injury. He went on to add:

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.^[12]

3.18      Lord Nicholls went on to discuss the possibility of the application of a third standard, higher than the civil standard of the balance of probability but lower than the criminal standard of proof beyond reasonable doubt. He stated:

The only alternative which suggests itself is that the standard should be commensurate with the gravity of the allegation and the seriousness of the consequences.^[13]

Although he recognised that such a standard may have certain advantages, he expressed doubt that it would add much of assistance to the civil test and expressed concern that it "would risk causing confusion and uncertainty". He concluded:

As at present advised I think it is better to stick to the existing, established law on this subject. I can see no compelling need for a change.^[14]

3.19      Although the House of Lords in Re H rejected a third standard of proof, in a recent decision, R (McCann and others) v Crown Court at Manchester and another; Clingham v Kensington and Chelsea Royal London Borough Council,^[15] Lord Steyn and Lord Hope referred to a "heightened civil standard".^[16] The case concerned whether applications for anti-social behaviour orders should be characterised as criminal or civil proceedings, in order to determine whether hearsay evidence should be admissible and the appropriate standard of proof. Lord Steyn said:

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).^[17] 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. … This approach should facilitate correct decision-making and should ensure consistency and predictability in this corner of the law.^[18]

3.20      Lord Hope of Craighead added that in certain contexts there is now a "substantial body of opinion"^[19] that the seriousness of the matters to be proved, and the implications of proving them, should be taken into account. He noted that "if this is done the civil standard of proof will for all practical purposes be indistinguishable from the criminal standard".^[20]
3.21      For present purposes, it is unnecessary to examine these developments in detail, as the roles fulfilled, respectively, by care orders and anti-social behaviour orders are quite different. Whatever the position may be in relation to imposing anti-social behaviour orders or sex offender orders upon a person, Lord Lloyd in his dissenting speech in Re H and R^[21] pointed out the dangers of applying a high standard of proof in child protection cases:

It would be a bizarre result if the more serious the anticipated injury, whether physical or sexual, the more difficult it became for the local authority to satisfy the initial burden of proof, and thereby ultimately, ... secure protection for the child.^[22]

3.22      Re H and R was a case in which there was a dispute as to whether a sibling had suffered any abuse at all. The conclusion was that the evidence was not sufficiently cogent to establish that she had been abused. The House of Lords decided that there was, therefore, insufficient evidence to find that the other children were likely to suffer significant harm in future. It is important to bear in mind that, as we emphasised in Part I of this report, we are only concerned with those cases in which the court is satisfied that the child has already suffered significant harm, but it cannot be proved who is responsible. We now consider that type of case.

Cases involving unexplained injuries

3.23      In Re B (Minors) (Care Proceedings: Practice),^[23] it was not clear which of the child's parents was responsible for the child's injury. Wall J summarised his conclusions as follows:

Question 3

Where: (a) parents have two children; (b) one child has been non-accidentally injured in the care of her parents and the other has not been injured; (c) there is no other possible perpetrator; but (d) the court is unable on the In Re H standard to decide which parent inflicted the injuries; can it be argued either (i) that the threshold criteria are not met in relation to the uninjured child, alternatively (ii) that where one parent is off the scene (as here, where the father is in prison) both children can properly be returned to the other parent, because there is no factual basis upon which it can be said that either child is at risk of harm in the future?

The answer to both parts of this question, in my judgment, is an emphatic "No". The argument to the contrary, in my judgment, is based on a misunderstanding of In Re H and R (minors) (sexual abuse: standard of proof)^[24] and Re M and R (minors) (expert opinion: evidence).^[25] Furthermore, it strikes at the whole philosophy of child protection embodied in the Children Act 1989 and seeks to import into care proceedings the unsatisfactory rule of criminal law that if a jury cannot decide which of two people is responsible for the death of a child, or serious injury to a child, each is entitled to an acquittal.^[26]

3.24      Wall J went on to express concern that the statutory provisions dealing with child protection must not be frustrated. He considered that to find that a child in the scenario outlined above has been non-accidentally injured by one or both of her parents whilst both parents were caring for her "is sufficient to satisfy the threshold criteria under section 31(2) of the Children Act 1989 in relation to both children".^[27] This remains the case even if the court cannot be satisfied on the balance of probabilities that one parent rather than the other inflicted the injuries. Further, he held that this applies even if one parent is removed from the scene (as in this case where the father was in prison), as "[t]he finding of fact is that the child was injured by either or both of her parents. The risk to the child from each parent must therefore be substantial".^[28]
3.25      He reiterated his concern that care proceedings should not become subject to the problems which are faced by criminal courts when dealing with a case of this type. He drew attention to the different aims of the criminal courts and care proceedings, highlighting that the criminal courts must be satisfied beyond reasonable doubt of a person's guilt before he or she can be punished, whereas the priority in care proceedings is the protection of the child. He concluded:

A finding of fact that a child has been injured by one of his two parents and that each is as likely to have done it as the other means that he is at risk from each. In these circumstances you clearly cannot protect a child from risk by leaving him with one parent.^[29]

3.26      In Lancashire CC and Another v B (A Minor); Same v W (A Minor)^[30] the House of Lords considered a case in which the child might have been injured by someone who was not a 'primary carer'. Lord Nicholls recognised that many children nowadays are cared for by a number of people, not solely their parents, a circumstance which presents difficulties if a child is non-accidentally injured. The number of potential perpetrators makes establishment of the facts particularly difficult and the judge's task becomes one of penetrating "the fog of denials, evasions, lies and half-truths which all too often descends in court at fact finding hearings".^[31] This change in the family unit necessitates, in his view, a change in the interpretation of section 31(2)(b)(i),^[32] as care is shared making it impossible for the court to "distinguish in a crucial respect between the care given by the parents or primary carers and the care given by other carers".^[33] For this reason the phrase "care given to the child" can be applied to the care given by any of the carers. In taking this approach Lord Nicholls considered that a balance was being struck between having regard to the changes in the way in which children are cared for and "encroaching to the minimum extent on the general principles underpinning s.31(2)".^[34] The change in the way in which many children are cared for is a situation which, in his opinion, Parliament had not foreseen, and thus:

The courts must therefore apply the statutory language to the unforeseen situation in the manner which best gives effect to the purposes the legislation was enacted to achieve.^[35]

3.27      He recognised that one effect of this approach is that the condition in the statute "may be satisfied when there is no more than a possibility that the parents were responsible for inflicting the injuries which the child has undoubtedly suffered".^[36] He also expressed his recognition that this may leave the judge who must decide whether to make a care order or supervision order in a particularly difficult position, as he will be unable to ascertain which individual perpetrated the injuries. He highlighted the possibility that "parents who may be wholly innocent, and whose care may not have fallen below that of a reasonable parent, will face the possibility of losing their child, with all the pain and distress this involves".^[37] He stressed, however, that although this is a possibility, it is not a certainty that a court will make a care order and "it goes without saying that when considering how to exercise their discretionary powers in this type of case judges will keep firmly in mind that the parents have not been shown to be responsible for the child's injuries".^[38]
3.28      Although he recognised these serious concerns, Lord Nicholls emphasised that the overwhelming factor "is the prospect that an unidentified, and unidentifiable, carer may inflict further injury on a child he or she has already severely damaged",^[39] and that this outweighs the distress which may be caused to all involved.
3.29      In Re G (A Child) (Care Order: Threshold Criteria)^[40] Hale LJ, discussing the situation in which a child has suffered non-accidental injury by one or both parents but it is impossible for a judge to decide which one, made reference to the guidance given by the House of Lords in Re H and R.^[41] In her view "the threshold of incredulity that such things can ever take place [is] much lower once it is clear that the thing has indeed taken place".^[42] The effect of the judge being unable to decide which carer is the perpetrator has the effect that a later hearing must proceed on the basis that each carer is a possible perpetrator, although this has not been proven. She stated:

That is an ironic result of the decision in Re H, because the main thrust of that case was to decide that children should not be subject to care orders on the basis that something may have happened rather than on the basis that it did happen.^[43]

3.30      This consequence of the approach highlighted by Hale LJ in Re G is exemplified by the judgement of Thorpe LJ in Re B (Children) (Non-Accidental Injury: Compelling Medical Evidence).^[44] The key passage in his judgment seems to indicate that once the fact of non-accidental injury has been proved or admitted then, in the face of mutual silence or denunciation, the evidential burden shifts. He referred to the type of case in which it could not be said with certainty that a defendant was the sole perpetrator of all the injuries to the child and compared the role of the family court judge in that situation to the position of the judge and jury in a criminal case, in which the defendants either offer no explanation or both blame the other.

The same sort of dilemma faces the judge in a situation such as this, where it is incumbent upon him to apply the elevated civil standard of proof. A degree of heightened cogency is necessary to enable the judge to say that it could not possibly have been the mother. It seems to me that that standard could not possibly have been met given the key factors identified by [counsel for the child] in his skeleton argument, particularly the fact that the mother's case was that really there had been no occasion when [the mother's ex-boyfriend] had been alone with this baby, other than the babysitting occasions and, obviously, the hours immediately preceding death when [the mother's ex-boyfriend] was up and about and she was deeply asleep.^[45]

3.31      A different approach was taken by the Court of Appeal in the case of Re O and N (children) (non-accidental injury: burden of proof).^[46] Ward LJ emphasised that "[i]t is not for the parent to exculpate himself or herself",^[47] although he did state that there is an evidential, though not a legal, burden on the parents to provide an explanation for the child's injuries which happened whilst in their care. He applied the test of whether the local authority had established on the balance of probabilities that the mother had inflicted the harm. He concluded:

Applied to this case which is different in the sense that harm has been established, nevertheless the finding of the court is that the case against the mother cannot be elevated beyond suspicion that she may have harmed her baby. As I have indicated that does not establish that she did. On the facts of this case the fact of her harming the child in the past could be the only basis for asserting a risk of her harming the child in the future. The suspicions and doubts do not establish a risk of future harm by her. In my judgment, this case must proceed henceforth upon the clear basis and understanding by all concerned, lawyers, social workers and experts, that L was not harmed by her mother and there is no risk that either L or C is at risk of suffering physical harm from her.^[48]

3.32      This decision has been subject to criticism by Hayes and Hayes,^[49] who reiterated that the role of care proceedings is not to attribute guilt or innocence to the defendant, but rather to protect the child. They argued that the Court of Appeal had been misguided in Re O and N, and that the "cogent evidence test" as proposed in Re B is correct. They stated:

The Court of Appeal directed that the court should ask itself the question 'is there cogent evidence that enables the court to identify who has caused the significant harm to the child?'. If the truth cannot be established, then it directed that the court should avoid making a positive finding that one party was the sole perpetrator. It should keep all carers in the frame.^[50]

3.33      The House of Lords has recently delivered its judgment in Re O and N.^[51] It considered the approaches taken in the Court of Appeal by both Thorpe LJ in Re B,^[52] and Ward LJ in Re O and N.^[53] Lord Nicholls, delivering the leading judgment with which the other Law Lords concurred, considered that in this type of case:

Quite simply, it would be grotesque if such a case had to proceed at the welfare stage on the footing that, because neither parent, considered individually, has been proved to be the perpetrator, therefore the child is not at risk from either of them.^[54]

3.34      He took the view that this would be a "self-defeating interpretation of the legislation",^[55] and stated that:

The preferable interpretation of the legislation is that in such cases the court is able to proceed at the welfare stage on the footing that each of the possible perpetrators is, indeed, just that: a possible perpetrator.^[56]

3.35      He went on to discuss the approach which the judge must take, having regard to the facts found at the preliminary hearing. He stated:

When the facts found at the preliminary hearing leave open the possibility that a parent or other carer was a perpetrator of proved harm, it would not be right for that conclusion to be excluded from consideration at the disposal hearing as one of the matters to be taken into account. … to exclude that possibility altogether from the matters the judge may consider would risk distorting the court's assessment of where, having regard to all the circumstances, the best interests of the child lie.^[57]

3.36      Therefore, the approach adopted by Ward LJ in the Court of Appeal was not followed. In the light of the factual conclusion that the evidence was not sufficient to exclude the mother and positively identify the father as perpetrator, "it would be quite wrong for the case to proceed on the false basis that the mother had been found not to be the perpetrator".^[58] The decision of Thorpe LJ in Re B was upheld.
3.37      Of course, the purpose of this paper is to consider the need for law reform in the context of criminal proceedings which are concerned with the attribution of guilt or innocence. It is pertinent to note, however, that family courts frequently deal with the same type of case which we are considering, where it can be proved that a child has suffered non-accidental injury, but it cannot be proved who inflicted the injury. We do not underestimate the difficulties which family courts face in dealing with these cases, which are illustrated by the cases referred to in this section. The family courts, however, have considerable advantages over criminal courts when dealing with these issues. Section 31 of the Children Act 1989 imposes a threshold of "significant harm" which the court must cross before it has jurisdiction to make a care order. Having crossed this threshold, the court can decide in exercise of its discretion not to make a care order on the basis of the welfare principle and the principle of non-intervention.

Admissibility of evidence in civil proceedings

3.38      Not only is there, at least nominally, a different standard of proof in the family and civil courts, but the rules of evidence operate differently. We now consider those rules of evidence.
3.39      The rules of evidence operate differently in civil and criminal proceedings. Furthermore, proceedings which are concerned with the protection of children have been recognised as a special category of civil proceedings (see Re L (A Minor) (Police Investigation: Privilege)).^[59] As a result, there are some types of evidence which will be admissible in civil proceedings under the Children Act 1989, but which are not admissible in criminal proceedings arising out of the same facts. For example, hearsay evidence is admissible in civil proceedings, but will often be inadmissible in criminal proceedings. The rules relating to the admissibility of expert evidence are also more restrictive in criminal proceedings.
3.40      In addition, it seems to be the case that a judge hearing civil proceedings can compel a person to give evidence to explain the circumstances in which a child has been injured. Section 98 of the Children Act 1989 provides:

(1) In any proceedings in which a court is hearing an application for an order under Part IV or V, no person shall be excused from –

(a) giving evidence on any matter; or

(b) answering any question put to him in the course of his giving evidence,

on the ground that doing so might incriminate him or his spouse of an offence.

(2) A statement or admission made in such proceedings shall not be admissible in evidence against the person making it or his spouse in proceedings for an offence other than perjury.

3.41      Although section 98 appears to make a person who is alleged to have injured the child a compellable witnesses in care proceedings, the judgment of Thorpe LJ in Re B (Non-Accidental Injury)^[60] suggests that parents have a right to choose not to give evidence. That case was distinctive in that the parents did not give any oral evidence and, although Thorpe LJ approved of the trial judge's approach in refusing to draw any inferences from that decision, he stated that "there were inevitably risks of consequences for them in having stood aside".^[61]
3.42      However, in Re M (Care Proceedings: Disclosure: Human Rights)^[62] Elizabeth Lawson QC (sitting as deputy judge in the high court) identified the case as one in which the child had suffered non-accidental injuries and if both parents remained silent the court might not be able to establish which parent was responsible. In that case the mother had provided a written statement. The mother's Counsel argued that, having done this, she should not have to give oral evidence. Elizabeth Lawson QC insisted that the mother should give oral evidence and treated her as a compellable witness under section 98 of the 1989 Act. One purpose in doing so was to clarify discrepancies between her statement and that of the father.
3.43      Re M concerned whether the mother's statement of responsibility should be disclosed to the police. This issue is considered in the next section.

Use of evidence obtained in civil proceedings

3.44      Where civil and criminal proceedings arise out of the same facts, it may be necessary to consider whether evidence obtained in one set of proceedings should be made available in the other. In particular, it may be important to decide whether evidence obtained in care proceedings can be disclosed to the police. This may occur where care and criminal proceedings are proceeding in parallel. For example, there are a number of cases in which a parent who is awaiting trial on criminal charges has attempted to postpone the resolution of care proceedings until after the conclusion of the criminal trial. In R v Inner London Juvenile Court ex parte G^[63] the father argued that his criminal trial would be prejudiced if he gave evidence in the care proceedings and his position in the care proceedings would be prejudiced if he were to remain silent in those proceedings in order to protect his defence at the criminal trial. The father's application to adjourn the care proceedings was dismissed by the magistrates,. That decision was upheld on application for judicial review by Bush J. In Re S (Care Order: Criminal Proceedings),^[64] however, the Court of Appeal decided that, in a case as serious as murder, it was preferable for the criminal trial to be concluded first and the care proceedings to follow unless there were exceptional circumstances requiring the child's long-term future to be decided without delay. On the other hand, in a case concerning neglect, the Court of Appeal decided in Re TB (Minors)(Care Proceedings: Criminal Trial)^[65] that each case had to be decided on its own merits and there was no automatic bar to the hearing of care proceedings when related criminal proceedings were pending. Finally in Re L (Care: Confidentiality)^[66] the parents were awaiting trial on murder charges. They argued that it would be unfair to require them to give evidence in care proceedings relating to a surviving child, since this would prejudice their position in the criminal proceedings. Johnson J stated that these submissions were lacking in substantial merit and hoped that the issue of confidentiality would not be used as a basis for seeking postponement of care proceedings until the conclusion of related criminal proceedings.
3.45      An eminent academic lawyer in his response to the informal consultation paper noted that it may prove an attractive option to complete civil proceedings before the criminal prosecution, as evidence given in civil proceedings, although not admissible, may provide valuable investigative leads for the police. He stated:

There would seem to me to be very substantial value in securing as much incriminating material as possible by conducting the civil hearings before the criminal prosecution, despite the reservations about the impact this might have on the candour of revelations in civil proceedings and that this might frustrate the more inquisitorial nature of those proceedings.

Confidentiality of evidence in civil proceedings

3.46      We have already referred to section 98 of the Children Act 1989, which prevents the use in criminal proceedings^[67] of a "statement or admission" made in care proceedings. The scope of the protection offered by section 98 has been considered in several cases: see for example, Oxfordshire County Council v P;^[68] Cleveland County Council v F;^[69] Re G (Minor) (Social Worker: Disclosure);^[70] Re W (Minors) (Social Worker: Disclosure).^[71]
3.47      In Re C (A Minor) (Care Proceedings: Disclosure)^[72] the father had confessed in care proceedings to harming a child. The Court of Appeal ordered, on the application of the police, disclosure of the judgment and the evidence in the form of reports, statements and transcribed oral evidence of the medical experts, of the parents and other family members, for the purpose of renewed police enquiries into the child's death. The statements and admissions of the parents could be used for the purpose of interviewing the parents although they were not admissible in criminal proceedings in respect of the alleged offence. The Court of Appeal set out the following criteria, to be applied by family courts when deciding whether evidence obtained in civil proceedings should be disclosed to the police:^[73]

(1) the welfare and interest of the child concerned and of other children generally;

(2) the maintenance of confidentiality in children's cases and the importance of encouraging frankness;

(3) the public interest in the administration of justice and the prosecution of serious crime;

(4) the gravity of the alleged offence and the relevance of the evidence to it;

(5) the desirability of co-operation between the various agencies concerned with the welfare of children;

(6) fairness to the person who had incriminated himself and any others affected by the incriminating statement;

(7) any other material disclosure which had taken place.

3.48      Swinton Thomas LJ drew attention to a matter which the judge should have considered when balancing whether or not the evidence should be disclosed – that is whether any benefit would accrue to the child concerned and other children as a result of the evidence not being disclosed, and whether any harm would be caused by disclosure. He continued:

Confidentiality and the importance of frankness militate against disclosure. In coming to his conclusion, the judge placed great emphasis on the importance of encouraging frankness. He was right to do so.

He emphasised the importance of the public interest in the administration of justice in ensuring that serious crimes are investigated and prosecuted, and went on to add:

The judge conducting a criminal trial will exercise his discretion as to whether to admit in evidence any further admissions to the police at interview resulting from the admissions made in the care proceedings and would obviously bear in mind when doing so in provisions of section 98 and the warning given to the accused person in the care proceedings.

3.49      In Re M (Care Proceedings: Disclosure: Human Rights)^[74] Elizabeth Lawson QC, sitting as a deputy judge in the High Court, whilst recognising that she may have a different perspective on this issue from that of permanent members of the judiciary, stated that she believed that the impact of cases in which disclosure is regularly ordered to the police "has greatly discouraged the frankness which is so necessary to the resolution of children's cases and which Parliament sought to protect".^[75] She highlighted the conflicting currents – on the one hand "full and frank disclosure" is mandatory in children's cases, whereas on the other the effect for a parent is a strong likelihood that information disclosed will be disclosed to the prosecution authorities. She noted that the police role in investigating this type of case has increased and pointed out that in practice the parents who make admissions as to how the child came about his or her injuries are prosecuted, whereas those who remain silent are not. Emphasis was placed on the detrimental effect which consequential delay in resolving this type of case can have on the child involved. She continued:

The reluctance to speak because confidentiality cannot be ensured or guaranteed is highlighted in cases such as Cleveland CC v F^[76] and Re G (Social Worker: Disclosure).^[77] In both of those cases the parents were expressing a reluctance to speak to those concerned with the child care proceedings unless they were guaranteed confidentiality because of the fear of the consequences. A fear that there would be criminal consequences was certainly a significant factor which influenced the parents' behaviour in this case.

3.50      The case of Re M itself demonstrated how important frank disclosure is. The mother had made an admission as to how the child's injuries were caused, and Elizabeth Lawson QC noted that, without this admission, she might have wrongly concluded that the father had inflicted the child's injuries. She stated "An inability to decide which of them was the perpetrator would have left him under a cloud of suspicion which would have had an impact on his being allowed to look after any other children in the future".^[78]
3.51      We recognise the difficulties faced by judges in the family courts when balancing the competing considerations for and against disclosure of evidence obtained in family proceedings for the purposes of a criminal investigation. It is not within our remit in this project to express any view on what rules or guidelines, beyond those already discussed, might improve the quality of decisions on such difficult issues nor would we wish to do so. It is of interest to us that the law already imposes a duty on all those who may have something to reveal in connection with care proceedings to give an account. Thus, a statement that those responsible for the welfare of a child have a responsibility to provide what explanation they can would not cut across what already exists in the family jurisdiction.

Conclusion

3.52      As noted at the outset of this Part, a number of respondents expressed concern that the proposals for reform of the criminal law should not adversely affect the civil protection available for children. Although some of them expressed concerns about certain of the proposals of the Team, none of them did so on the basis that they would operate to make the task of the civil courts more difficult.^[79]
3.53      Whilst we do not underestimate the difficulties faced by professionals within the family justice system dealing with cases of unexplained non-accidental injuries, it is the case that the current interpretation of the Children Act 1989 allows the family courts to make care orders or supervision orders to protect children from a risk of harm, even though the court may be unable to establish who is responsible for the child's injury. In civil proceedings, the risk of unfairness to an innocent parent whose child may be taken into local authority care is thought to be outweighed by the overriding importance of the child's welfare, and the need to protect children from further abuse.
3.54      On the other hand, in criminal proceedings, it would be unacceptable to convict a person of a serious criminal offence unless it can be proved that he or she is criminally responsible for a non-accidental death or injury. Concern that this distinction be recognised was expressed by a number of respondents to the informal consultation paper. Under the current law it appears that it will frequently be impossible to convict such a person. This remains a great concern, notwithstanding the knowledge that civil proceedings may be available to protect the child, or other children, who are at risk of similar abuse. In the remainder of this paper, therefore, we will consider whether the rules of criminal law, evidence and procedure should be reformed.

Note 1    Professor Glanville Williams, “Which of you did it” (1989) 52 MLR 179 at p 194.    [Back]

Note 2    Ibid, at p 194.    [Back]

Note 3    These orders are found in s 8 of the 1989 Act and are know collectively as 'section 8 orders'.    [Back]

Note 4    Children Act 1989, s 44.    [Back]

Note 5    Ibid, s 46.    [Back]

Note 6    Ibid, s 43.    [Back]

Note 7    Ibid, s 38.    [Back]

Note 8    Ibid, sections 38A and 44A.    [Back]

Note 9    [1996] AC 563.    [Back]

Note 10    Ibid, at p 586.    [Back]

Note 11    Ibid.    [Back]

Note 12    Ibid.    [Back]

Note 13    Ibid, at p 587.    [Back]

Note 14    Ibid.    [Back]

Note 15    [2002] 3 WLR 1313.    [Back]

Note 16    Ibid, at paras 37 and 83.    [Back]

Note 17    [1996] AC 563, at p 586D-H, per Lord Nicholls of Birkenhead.    [Back]

Note 18    [2002] 3 WLR 1313 at para 37.    [Back]

Note 19    Ibid, at para 83.    [Back]

Note 20    Ibid. He cited as having recognised this point: B v Chief Constable of Avon and Somerset Constabulary [2001] 1 WLR 340, 354 para 31 per Lord Bingham of Cornhill CJ; Gough v Chief Constable of the Derbyshire Constabulary [2002] 3 WLR 289, 313, para 90 per Lord Phillips of Worth Matravers MR.    [Back]

Note 21    [1996] AC 563.    [Back]

Note 22    Ibid, at p 577.    [Back]

Note 23    [1999] 1 WLR 238.    [Back]

Note 24    [1996] AC 563.    [Back]

Note 25    [1996] 4 All ER 239.    [Back]

Note 26    [1999] 1 WLR 238 at p 246–7.    [Back]

Note 27    Ibid, at p 248.    [Back]

Note 28    Ibid, at p 249.    [Back]

Note 29    Ibid, at p 250.    [Back]

Note 30    [2000] 2 WLR 590.    [Back]

Note 31    Ibid, at p 596.    [Back]

Note 32    See para 3.15 for the wording of this subsection.    [Back]

Note 33    [2000] 2 WLR 590 at p 596.    [Back]

Note 34    Ibid.    [Back]

Note 35    Ibid.    [Back]

Note 36    Ibid.    [Back]

Note 37    Ibid, at p 597.    [Back]

Note 38    Ibid.    [Back]

Note 39    Ibid.    [Back]

Note 40    [2001] 1 FLR 872.    [Back]

Note 41    [1996] AC 563.    [Back]

Note 42    [2001] 1 FLR 872, at p 822, para 44.    [Back]

Note 43    Ibid.    [Back]

Note 44    [2002] 2 FLR 599.    [Back]

Note 45    Ibid, at p 606 (emphasis added).    [Back]

Note 46    [2002] 2 FLR 1167.    [Back]

Note 47    Ibid, at p 1177 para 23.    [Back]

Note 48    Ibid, at p 1178 para 26.    [Back]

Note 49    Hayes and Hayes, “Child Protection in the Court of Appeal” [2002] Fam Law 817.    [Back]

Note 50    Ibid, at p 827.    [Back]

Note 51    In re O and N (Minors); In re B (Minors)(2002) [2003] UKHL 18.    [Back]

Note 52    [2002] 2 FLR 599.    [Back]

Note 53    [2002] 2 FLR 1167.    [Back]

Note 54    Ibid, at para 27.    [Back]

Note 55    Ibid, at para 28.    [Back]

Note 56    Ibid.    [Back]

Note 57    Ibid, at para 31.    [Back]

Note 58    Ibid, at para 33.    [Back]

Note 59    [1997] AC 16.    [Back]

Note 60    [2002] 2 FLR 1133.    [Back]

Note 61    Ibid, at p 1139 para 26.    [Back]

Note 62    [2001] 2 FLR 1316.    [Back]

Note 63    [1988] 2 FLR 58.    [Back]

Note 64    [1995] 1 FLR 151.    [Back]

Note 65    [1996] 1 FCR 101.    [Back]

Note 66    [1999] 1 FLR 165.    [Back]

Note 67    Other than in proceedings for perjury.    [Back]

Note 68    [1995] Fam 161.    [Back]

Note 69    [1995] 1 WLR 785.    [Back]

Note 70    [1996] 1 WLR 1407.    [Back]

Note 71    [1999] 1 WLR 205.    [Back]

Note 72    [1997] Fam 76.    [Back]

Note 73    Ibid, at p 85–6.    [Back]

Note 74    [2001] 2 FCR 1316.    [Back]

Note 75    Ibid, at p 1324.    [Back]

Note 76    [1995] 1 FLR 797.    [Back]

Note 77    [1996] 1 FLR 276.    [Back]

Note 78    [2001] 2 FCR 1316, at p 1325.    [Back]

Note 79    The arguments of all the respondents, including the Criminal Bar Association and Professor Ormerod, have been taken into account in later Parts.    [Back]