Judgments - In Re B (Children) (Fc) Appellate Committee Lord Hoffmann Lord Scott of Foscote Lord R

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29.  On 19 October 2007, Charles J handed down a judgment comprising 347 substantive paragraphs and 8 schedules, totalling 159 pages in all. He made detailed findings of physical and emotional abuse supporting his overall conclusion that:

“The combination of the physical and verbal violence, abuse and relationships within the household and the antagonism both between members of the household, and them and persons outside it, had the result that the children were being brought up in a fraught household in which they had no realistic prospect of being able to develop as young children, and then as teenagers, into adults against a background of emotional and physical stability or in which balanced and reasonable approaches were taken to the events of every day life.” (para 48)

Important components in that conclusion were his findings about Mrs B’s aggressive and bullying behaviour in her dealings with the children’s schools and others and the existence of an “allegation culture” within the family for which Mrs B was primarily responsible:

“ . . . the family have an allegation culture in which all four of Mrs B, Mr B, S and R have made and supported allegations that are simply untrue, or allegations that are so exaggerated and misrepresented that they become untrue, to promote a campaign against others or to get back at them.” (para 133)

30.  However, despite an elaborate and meticulous analysis of all the evidence, the learned judge was unable to make a finding about the alleged sexual abuse of R by Mr B. Instead he concluded that:

“(i) I cannot make a properly founded and reasoned conclusion that it is more likely than not that R was sexually abused by Mr B as she alleges or substantially as she alleges, and thus that she is telling the truth,

(ii) I cannot make a properly founded and reasoned conclusion that it is more likely than not that R was not sexually abused by Mr B, and thus that Mr B is telling the truth,

(iii) my answer to the question which of the above two possibilities (and thus which of Mr B and R is telling the truth) is more likely, would be a guess because I cannot even answer that question by attributing and giving weight to the competing arguments on a properly founded and reasoned basis, and

(iv) on an approach founded on evidence and reasoning, and not on suspicion and/or concern, I am unable to conclude that there is no real possibility that Mr B sexually abused R as she asserts or substantially as she asserts and I have therefore concluded that there is a real possibility that he did.” (para 339)

31.  My Lords, if the judiciary in this country regularly found themselves in this state of mind, our civil and family justice systems would rapidly grind to a halt. In this country we do not require documentary proof. We rely heavily on oral evidence, especially from those who were present when the alleged events took place. Day after day, up and down the country, on issues large and small, judges are making up their minds whom to believe. They are guided by many things, including the inherent probabilities, any contemporaneous documentation or records, any circumstantial evidence tending to support one account rather than the other, and their overall impression of the characters and motivations of the witnesses. The task is a difficult one. It must be performed without prejudice and preconceived ideas. But it is the task which we are paid to perform to the best of our ability.

32.   In our legal system, if a judge finds it more likely than not that something did take place, then it is treated as having taken place. If he finds it more likely than not that it did not take place, then it is treated as not having taken place. He is not allowed to sit on the fence. He has to find for one side or the other. Sometimes the burden of proof will come to his rescue: the party with the burden of showing that something took place will not have satisfied him that it did. But generally speaking a judge is able to make up his mind where the truth lies without needing to rely upon the burden of proof.

33.  The judge’s findings in this case were expressed in such a way as squarely to raise the issue of principle. Is it possible to be satisfied that a child is likely to suffer a particular kind of harm in the future when the basis for suggesting this is that there is a “real possibility” that another child has suffered the same kind of harm in the past? There are, of course, many degrees of possibility - from a fifty/fifty chance that it happened down to an infinitesimal chance that it did. In this case, the judge seems to have concluded that there was a “real possibility” because he could not conclude that there was none.

34.  Having set the case up in such a way as to raise the issue of principle, the judge further elaborated upon the problem as he saw it in Schedule A to his principal judgment, which was handed down with a further judgment containing a draft letter of instruction to the experts who were to conduct assessments of the parents and the family for the next stage in the proceedings on 11 December 2007. He had indicated that he considered the case suitable for a “leapfrog” appeal to this House but Mr B did not agree to this. Accordingly Charles J gave leave to appeal to the Court of Appeal. The Court of Appeal, being bound on the authorities to dismiss the guardian’s appeal, gave leave to appeal to this House.

The authorities

35.  In In re H and others (Minors) (Sexual Abuse: Standard of Proof) [1996] AC 563, the facts were unusually simple. The mother had four daughters, two by her husband and two by R, the man with whom she was now living. The eldest daughter alleged that R had been sexually abusing her for some years. The local authority brought care proceedings in respect of the three younger children, relying solely on these allegations as proof of the likelihood of similar harm to them. The judge was not satisfied that the allegations were true, although there was a real possibility that they were. He dismissed the local authority’s applications.

36.  The local authority’s appeal to this House established three quite separate propositions. The first, on which all five of their lordships were agreed, was that the words “is likely to suffer significant harm” did not mean that such harm had to be more likely than not to happen in the future: it was enough if its happening was a real possibility, a “possibility that cannot sensibly be ignored having regard to the nature and gravity of the feared harm in the particular case” (Lord Nicholls of Birkenhead at p 585).

37.  The second, on which all were also agreed, was that the standard of proof of facts in issue was the balance of probabilities; but there was a difference between the ways in which that standard was expressed, on the one hand by Lord Nicholls with the majority, and on the other hand by Lord Lloyd of Berwick. That issue has not only led to considerable confusion in the past but is also the source of some of the perceived difficulties with the present law. Miss Jo Delahunty QC, on behalf of Cafcass, has made an eloquent plea to us to clarify it for the future.

38.  The third issue, on which Lord Nicholls, with whom Lord Goff and Lord Mustill agreed, took one view and Lord Browne Wilkinson and Lord Lloyd took another, was the issue which is raised in this case. Lord Nicholls’ conclusion was that a conclusion as to future risk had to be based on facts:

“In my view these unresolved judicial doubts and suspicions can no more form the basis of a conclusion that the second threshold condition in section 31(2)(a) has been established than they can form the basis that the first has been established.” (p 589E)

He gave several reasons for arriving at that conclusion. He pointed to the distinction between interlocutory relief, which can be granted on the basis of a good arguable case without resolving disputed questions of fact, and a trial, in which “the court normally has to resolve disputed issues of relevant fact before it can reach its conclusion on the issue it has to decide". (p 589G) “A decision by a court on the likelihood of a future happening must be founded on a basis of present facts and the inferences fairly to be drawn therefrom.” (p 590A) For the first limb of section 31(2)(a), “There must be facts, proved to the court’s satisfaction if disputed, on which the court can properly conclude that the child is suffering harm". (p 590C) “Similarly, with the second limb: there must be facts from which the court can properly conclude there is a real possibility that the child will suffer harm in the future.” (p 590C)

39.  He found several indications in the Act that this, the ordinary approach, was to be applied. First, when dealing with investigations and child assessment orders, the Act uses the term “reasonable cause to suspect” (ss 47(1)(b) and 43(1)(a)), and when dealing with emergency protection orders, police protection and interim care orders, it uses the term “reasonable cause to believe” (ss 44(1)(a), 46(1) and 38(2)), that the child is suffering or likely to suffer significant harm. This is the sensible approach to child protection before the stage of a final order is reached. But the language of section 31(2) is different: the court must be “satisfied . . . that the child . . . is suffering, or is likely to suffer, significant harm; . . .” “This is the language of proof, not suspicion, however reasonably based.” (p 590H)

40.  Second, the second threshold condition, likelihood of harm, is “cheek by jowl” with the first, that the child is suffering harm. If the evidence of maltreatment is not sufficient to establish that the child is suffering harm, “It would be odd if, in respect of the selfsame non-proven allegations, the self-same insufficient evidence could nonetheless be regarded as a sufficient factual basis for satisfying the court there is a real possibility of harm to the child in the future". (p 591B)

41.  Third, if this were the case, it “would effectively reverse the burden of proof in an important respect". Once apparently credible evidence of misconduct had been given, those against whom the allegations were made would have to disprove them. “Otherwise it would be open to a court to hold that, although the misconduct has not been proved, it has not been disproved and there is a real possibility that the misconduct did occur. . . . I do not believe Parliament intended that section 31(2) should work in this way.” (p591D)

42.  This is, of course, exactly what the judge found in our case and exactly what the children’s guardian says should be enough to cross the threshold. One reason for this is the alleged inconsistency between the approach taken in Re H and the approach taken by the House in the two later cases. In each of them, it was clear that the children involved had suffered significant harm but it was not clear who had been the perpetrator. The point arose in particularly striking circumstances in Lancashire County Council v B [2000] 2 AC 147. A seven month old baby, A, lived with her parents but was cared for by a child minder during working hours. She suffered very significant harm as a result of violent shaking on at least two occasions. The local authority brought care proceedings, not only in respect of child A, but also in respect of the childminder’s son, B, who was a month older than the injured child. The possible perpetrators, as found by the judge, were A’s mother and father or the childminder, B’s mother (he was able to exonerate B’s father). But the injuries could have happened in either household; he could not say in which or who was the likely perpetrator.

43.  The judge dismissed the applications relating to each child. He could not be satisfied that harm suffered by child A was attributable to a lack of reasonable care on the part of the parent against whom the order was sought, nor could he be satisfied of the likelihood of future harm to child B attributable to a lack of reasonable care by his mother. The Court of Appeal held that the judge was plainly right in relation to child B. There was no evidence that he had been harmed in any way. It had not been proved that his mother was responsible for A’s injuries and that was the only basis for suggesting that there was any risk of harm to B in the future. In re H applied. Child A, on the other hand, had undoubtedly been harmed. This was not an accident. It was attributable to a lack of proper care. It was not necessary, in order to establish the criterion in section 31(2)(b)(i) (see para 22 above), to show who was responsible for that lack. The local authority’s appeal was allowed in relation to her. The parents’ appeal to the House of Lords was dismissed.

44.   The question was whether the “care given to the child", which had been found to be deficient, meant the care given to the child by her parents or other primary carers, as argued on behalf of the parents, or whether it meant the care given by anyone who plays a part in the care arrangements for the child, as argued by the local authority and the child’s guardian. Lord Nicholls found both extremes produced unacceptable results. He favoured a middle course:

“The phrase ‘care given to the child’ refers primarily to the care given to the child by a parent or parents or other primary carers. That is the norm. . . Different considerations from the norm apply in a case of shared caring where the care given by one or other of the carers is proved to have been deficient, with the child suffering harm in consequence, but the court is unable to identify which of the carers provided the deficient care. In such a case the phrase ‘care given to the child’ is apt to embrace not merely the care given by the parents or other primary carers; it is apt to embrace the care given by any of the carers.” (p 166 C-D)

45.  He recognised that this construction meant that the conditions might be satisfied when there was no more than a possibility that the parents were responsible and that parents who might be wholly innocent would face the possibility of losing their child. But to hold otherwise

“would mean that the child’s future health, or even her life, would have to be hazarded on the chance that, after all, the non-parental carer rather than one of the parents inflicted the injuries. Self-evidently, to proceed in such a way when a child is proved to have suffered serious injury on more than one occasion could be dangerously irresponsible.” (p 165G)

46.  The more common version of this dilemma, however, is not where a child’s care is shared between two households, but where it is shared between two parents. If the child suffers harm, and the judge cannot decide which parent was responsible, the threshold criteria are met. But how is the court to approach the next stage in the proceedings, the stage of deciding what order, if any, will be in the best interests of the child? In In re O (Minors)(Care: Preliminary Hearing); In re B (A Minor) [2003] UKHL 18, [2004] 1 AC 523, the Court of Appeal in one case had held that the judge had to proceed on the basis that the child had not been harmed by the mother and that she did not present a risk of harm to that or another child; in the other, a differently constituted Court of Appeal had held that as the mother had not been exonerated, the judge could not disregard the risk that she might present.

47.  Lord Nicholls (with whom Lord Hoffmann, Lord Millett, Lord Scott and Lord Walker simply agreed) preferred the latter view:

“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. This would be grotesque because it would mean the court would proceed on the footing that neither parent represents a risk even though one or other of them was the perpetrator of the harm in question. . . .

. . . 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.” (paras 27, 28)

48.  However, no doubt was cast on the conclusions reached in In re H. Lord Nicholls went on to consider how unproven allegations of harm should be treated at the “welfare stage” in care proceedings. Once the threshold in section 31(2) has been crossed, the court is required to apply the welfare principle in section 1(1) of the 1989 Act:

“When a court determines any question with respect to -

(a) the upbringing of a child; or

(b) the administration of a child’s property or the application of any income arising from it,

the child’s welfare shall be the court’s paramount consideration.”

The court is also required to have regard, in particular, to the “checklist” of factors set out in section 1(3) of the Act. These include, along with such obvious matters as the wishes and feelings of the child, and the capacities of the adults around her to meet her needs, in section 1(3)(e), “any harm which he has suffered or is at risk of suffering".

49.  Is section 1(3)(e) to be interpreted and applied differently from section 31(2)(a)? Can a court conclude that there is a risk of the child suffering a particular kind of harm even though the allegations said to give rise to such a risk cannot be proved? The question did not arise directly in In re O, but Lord Nicholls said this:

“On balance, I consider that to have regard at the welfare stage to allegations of harm rejected at the threshold stage would have the effect of depriving the child and the family of the protection intended to be afforded by the threshold criteria. Accordingly, at the welfare stage in this type of case the court should proceed on the footing that the unproven allegations are no more than that.” (para 38).

50.  This accorded with the approach of the Court of Appeal in In re M and R (Minors) (Abuse: Expert Evidence) [1996] 4 All ER 239. There, the judge was satisfied that the threshold was crossed on the basis that the children had suffered emotional abuse and were likely to do so in future. He was not, however, satisfied that sexual abuse had also occurred, although there was a real possibility that it had. The local authority contended that he should have taken this into account under section 1(3)(e) when assessing the welfare of the children. Butler-Sloss LJ, giving the judgment of the court, rejected their submissions at p246H to 247D:

“They amount to the assertion that under section 1 the welfare of the child dictates that the court should act on suspicion or doubts, rather than facts. To our mind the welfare of the child dictates the exact opposite. . .

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 section 31 or a section 8 order (residence, contact and other orders with respect to children), must be to resolve that dispute. . . 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 given by the majority in In re H. The court must reach a conclusion based on facts, not on suspicion or mere doubts. ...

[Counsel’s] 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 the harm or the risk of harm”               

51.  In re M and R was a care case but, in a private law dispute between mother and father over contact, the Court of Appeal had a month earlier (and in the knowledge the judgment in In re M and R was pending) pointed to the judge’s “fundamental error” in exercising his discretion as to the future on the basis of a finding that there was “a substantial risk” that abuse had occurred in the past. In Re P (Sexual Abuse: Standard of Proof) [1996] 2 FLR 333, 343 Wall J commented that:

“It has also had the effect, in the instant case, of producing the worst of all worlds. The father remains under a cloud. Abuse is not proved on the balance of probabilities, but he remains effectively branded an abuser: as the judge himself said, ‘at the very lowest he will remain under suspicion until his daughters are old enough to be able to cope with any risk of abuse themselves’. Furthermore, the mother’s beliefs are reinforced. It thus becomes impossible for the parties and the children to put the issue of sexual abuse behind them. The end result is highly unsatisfactory.”

52.  The children’s guardian also invites us to overrule the Court of Appeal’s decision in In re M and R, so that, the threshold having been crossed on other grounds, the judge will be able to take into account at the welfare stage the unproven allegations of sexual abuse against Mr B.

This appeal

53.  Mr Stephen Cobb QC, on behalf of the children’s guardian who represents N and A, invites us to depart from In re H and to overrule In re M and R principally on the ground that, in combination with Lancashire County Council v B and In re O, they produce illogical results. If a parent can be deprived of her child, or a child deprived of her mother, on the basis of a real possibility that she may have been the perpetrator of the harm suffered by the child, why should not such a real possibility that harm has been suffered in the past be the basis of a finding that it is likely that such harm will be suffered in the future? The artificiality of proceeding on the basis that such harm did not happen at all, when there is a real possibility that it did, is just as irresponsible and dangerous as proceeding on the basis that neither parent was the perpetrator, rejected by this House in In re O.

54.  My Lords, I would unhesitatingly decline that invitation. The reasons given by Lord Nicholls for adopting the approach which he did in Re H remain thoroughly convincing. The threshold is there to protect both the children and their parents from unjustified intervention in their lives. It would provide no protection at all if it could be established on the basis of unsubstantiated suspicions: that is, where a judge cannot say that there is no real possibility that abuse took place, so concludes that there is a real possibility that it did. In other words, the alleged perpetrator would have to prove that it did not. Mr Cobb accepts that it must be proved on the balance of probabilities that a child “is suffering” significant harm. But nevertheless he argues that those same allegations, which could not be proved for that purpose, could be the basis of a finding of likelihood of future harm. If that were so, there would have been no need for the first limb of section 31(2)(a) at all. Parliament must be presumed to have inserted it for a purpose. Furthermore, the Act draws a clear distinction between the threshold to be crossed before the court may make a final care or supervision order and the threshold for making preliminary and interim orders. If Parliament had intended that a mere suspicion that a child had suffered harm could form the basis for making a final order, it would have used the same terminology of “reasonable grounds to suspect” or “reasonable grounds to believe” as it uses elsewhere in the Act. Instead, as Butler-Sloss LJ pointed out in In re M and R, it speaks of what the child is suffering or is likely to suffer.

55.  My Lords, it is rare for the facts to be as stark as they were in In re H. There are usually many facts from which an inference that a child is likely to suffer harm in the future can be drawn. In In re H it appears that there was nothing, other than the allegations of sexual abuse made by the oldest child, from which it would have been possible to draw the inference that the other children were likely to suffer such harm. In the air-raid example used by Lord Browne Wilkinson in In re H, it would have been difficult to conclude that an air raid was likely from nothing more than that five unidentified planes had been seen in the skies overhead. But the country was at war. Air raids were frequent. The fact that there had been raids in the past would make it possible to draw the inference that there would be raids in the future. The only question was when.

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