T (Children), Re

The local authority supported by the guardian of a little girl, ET, now aged three, sought permission to appeal the decision of His Honour Judge Wade given on the 24^th November 2003 in which he found that the threshold criteria under section 31 of the Children Act 1989 had not been met and dismissed the care proceedings brought by the local authority, in respect of ET and her elder brother LT. Mr Jonathan Baker QC, Mr Jonathan Sampson and Mr Ian Robertson appeared for the local authority and for the guardian. Miss Pamela Scriven QC and Mr Richard Hadley appeared for the mother and Mr Stephen Wildblood QC and Mr Andrew Grime appeared for the father. The father’s brother NT was not represented on the appeal. This Court granted permission to appeal; allowed the appeal and transferred the case to the High Court for a rehearing. We made interim care orders. We reserved our reasons for our decision, which we have set out below.

The mother is 29 and the father is 28. The father has a younger brother NT who is 23 or 24. He has learning difficulties. The mother and father met and commenced a relationship in 1997. Their first child LT was born on the 16^th October 1998. Their second child and the subject of the medical concerns, ET, was born on the 19^th January 2001. NT moved to live with the family in August 2002 in order that the father might help him to find a job. ET was a large and heavy child and in September 2002 her weight was on the 97^th percentile and was approximately that of a child of over four years old. ET shared a room with her brother LT. On the 4^th September in the early morning NT went to work before 6.00 am. The mother was sleeping with E in her bunk bed and the family got up about 6.15 am. The father went to work at about 7.00 am and the mother changed ET’s nappy which was wet. She saw nothing of concern. A little later she changed ET’s nappy again because it was dirty. Again there was nothing of concern. ET went to sit on the potty in the living room. The mother’s account was that, as she went into the kitchen, she heard a hysterical scream and she ran back into the living room and found ET bent down on the potty. The mother picked her up and saw lots of blood coming from between her legs. The mother went as soon as possible to her local surgery with both children. The general practitioner, Dr F, examined her superficially. The mother did not tell him about the child screaming hysterically nor that she had fallen on the potty. In the absence of any evidence of trauma, Dr F was not unduly worried. After discussions with her mother, the mother took the child to the accident and emergency department of the local hospital. A triage nurse first saw the mother and ET. Her note of the discussion recorded ‘no evidence or memory of trauma.’ The child was then seen by the duty doctor, Dr B, and the mother told him that she had heard ET scream but had seen no evidence that ET had hurt herself. The child was then referred to a paediatrician, Dr A, who identified a perineal tear and referred the child to a paediatric consultant, Dr G who saw her on the following day, the 5^th September. She saw the perineal tear and arranged an examination under general anaesthetic which was conducted by a police surgeon, a gynaecologist and Dr G. This disclosed a perineal tear, one centimetre deep and two centimetres long extending from the posterior fourchette to the perineal body near to the anal margin. The perineal body was partly disrupted. The tear was very recent. The hymen was intact and no injury was found in the upper vagina. The tear required two stitches. Examination of the anus revealed fissures at 10 o‘clock, 12 o’clock, 2 o’ clock and an anal tag at 4 o’clock. There was no bruising round the injuries. Drawings were made and photographs taken of the injuries. LT was examined and nothing of significance was found.

As a result of these findings in relation to ET, Social Services became involved and the children were voluntarily accommodated with the maternal grandparents with whom they have remained throughout the proceedings. Interim care orders were made in respect of both children on the 13^th January 2003. The case was transferred to the county court.

Dr G, the consultant paediatrician who examined E and two other consultant paediatricians instructed as experts, Dr P and Dr W, gave evidence at the hearing before the judge. All three produced reports and discussed their findings with each other. Neither Dr P nor Dr W was able to examine ET. Most unfortunately, for reasons which I shall explore later in this judgment, Dr W was unable to have proper access to the photographs and then only to see some of them before the hearing. This had several most unhappy results; Dr W gave his first opinion without seeing any photographs and there were months of delay before the photographs were made available to him; he eventually saw some of them, but when Dr W and Dr P discussed the case, they did not know that they had not seen the same set of photographs and their differing conclusions were at the time difficult to reconcile. It was not until Dr W came to court on the 19^th May 2003 that he was shown another set of photographs for the first time. Not surprisingly Dr W had changed his opinion about the injuries by the time the case was eventually heard in October 2003.

After Dr W saw the first set of photographs he formed the view that the anal injuries were not as serious as described by Dr G. The new set of photographs were clearer and he came to the conclusion that the anal fissures were serious and he was able to see the depth of the vulval injury which in his oral evidence he said had impressed him. By the time the medical evidence came to be considered by the judge, he had to deal with the changing opinion of Dr W and to disentangle the stages of the medical evidence in line with the degree of information available at each stage. I have considerable sympathy with the task which the judge faced and his failure to come to grips with it was another sad result of the non-disclosure of the crucial photographic evidence.

The judge gave a most careful and detailed judgment in which he set out a summary of the evidence of the three paediatric experts. He found that Dr P concluded that the probability of sexual abuse was higher than a straddle injury. Dr W originally considered that the evidence for either was fairly scant, but straddle injury was more probable. The judge said that

“Significantly at that stage, both experts were concerned ‘as to whether the probability of either cause can be determined to the level required for the court.’”

The judge then considered Dr W’s change of mind. The judge recognised that the photographs seen by DR W for the first time at court had a very significant part to play. The judge concluded

“Dr W said this in his letter to Mr Robertson: ‘Given the photographs that I examined, I came to the view that I could not equate Dr [G’s] descriptions with the photographic evidence.’ Although he does not go so far as to say it, that, it seems to me, is really saying that Dr W did not accept the accuracy of Dr [G’s] findings in their entirety. It was not until he saw the ‘new’ photographs that he had to acknowledge that she was right after all as to the depth of the vulval injury. It is right to say that the way that is has happened is unsatisfactory, and I am urged on behalf of the father to consider the quality of Dr [W’s] evidence. Taking all the circumstances into consideration, whilst I am satisfied that he has had a genuine change of mind, and that the reasons he gives for that are understandable, I do consider that it highlights the medical difficulty in this case. That difficulty, in my view, is that there is a considerable lack of certainty in the opinions of the experts, and it does not take much of a change in emphasis in the way a particular piece of evidence is looked at, to result in a move from one side of the ‘fence’ to the other. I think Dr [W] – and he has not been alone in this – has found this to be a particularly difficult case. In my view, his change of mind has the effect of emphasising the difficulty the experts have had in reaching conclusions with any real degree of certainty.”

The judge said that at the experts’ meeting they were tending to the view that the injuries were caused as a result of sexual abuse. He added

“….there was in my view a significantly more cautious approach by both Dr [W] and Dr [P] when they came to give evidence, again emphasising the difficult task of reaching firm conclusions in this case.”

…..I have reached the conclusion that the expert and other medical evidence, by itself, is insufficient to establish that [ET] has been sexually abused. Support for that conclusion comes from the differences of opinion seen in the evidence of Dr [W] and Dr [P], to which I have referred in more detail elsewhere, and the view I have taken as to Dr [W’s} change of mind.”

He referred to the answer given by Dr [P] at the end of her evidence that she was more than 50% certain and that in her professional view this was sexual abuse, but he discounted the answer since it was in response to a leading question. He found it difficult to reconcile her answer with her other comments as to the diagnosis and said

“…Ultimately, both these experts have accepted that what has been found cannot be said to be diagnostic of sexual abuse…….

I have looked at it all in the context of re B [Non-Accidental Injury: Compelling Medical Evidence [2002] 2 FLR 599]referred to above, but in my view the evidence here does not approach the degree of certainty present in that case.”

In relation to the evidence given by the family the judge said that in the absence of any or any adequate explanation by the mother as to what might have caused the injuries, it was easy to see why the doctors had ‘heightened suspicions’ and concerns. The absence of any explanation as to what might have occurred was worrying but it would be wrong to speculate. He formed the view that those suspicions and concerns did not provide evidence strong enough to discharge the burden of proof. He considered that each of the parents and NT gave a consistent account of the events prior to the discovery of the injuries. They did not attempt to inculpate one another and the mother acted responsibly in seeking medical assistance. ET showed no sexualised behaviour .He also pointed to the absence of any evidence of abuse of the elder child. He found that there was no strong evidence to support the case of the local authority and that the threshold had not been crossed.

On appeal, the appellants’ main submissions were directed to the standard of proof actually applied by the judge, what was submitted to be his misinterpretation of the medical evidence at the hearing, his conclusion that the medical evidence alone was insufficient to establish sexual abuse, and his failure to analyse the evidence of the parents and to make findings about the explanations and lack of explanations about the injuries.

The appellants submitted that, despite a correct self-direction on the standard of proof and the test to be applied in accordance with re H [1996] 1 FLR 80, the way in which the judge approached the case was fundamentally flawed. After quoting from the Royal College of Physicians booklet, entitled ‘Physical Signs of Sexual Abuse in Children’, he asked himself the question

“ I have had to consider very carefully indeed therefore whether this is one of those rare cases where a diagnosis of sexual abuse would be justified on physical signs alone.”

He answered that question at the end of his judgment in the negative. The appellants submitted that he did not ask himself the question whether he was satisfied on the balance of probabilities to the sufficient degree of cogency that the injuries of the child were due to sexual abuse. His approach to the medical evidence fell into the error of requiring a standard equal to the criminal standard of proof. At different stages of the judgment he referred to ‘it is difficult to be dogmatic and absolutely certain’; ‘degrees of certainty’ or ‘degree of certainty’ and ‘lack of certainty’. He said

“I accept…Mr Wildblood’s submission that the court must look with care at the way in which the experts have used words and expressions concerning degrees of certainty, such as ‘sure’, ‘probable’, ‘serious possibility’, ‘near as possible to being sure.’”

The appellants submitted that by the time the medical experts gave their evidence in court and Dr W had had an opportunity to look for the first time at the photographs, their joint evidence clearly established that it was more likely than not that the perineal injuries were attributable to sexual abuse rather than the possible fall on the potty, the only explanation given by the family. It was more likely than not that the anal injuries were caused by sexual abuse and there was no explanation for them. Taking all the injuries together, this was a case of sexual abuse.

The change of mind of Dr W was treated by the judge as an example of the difficulties the doctors were having in reaching a conclusion. This was a fundamental error since it did not take into account that the reason for the change of mind was the opportunity Dr W then had to study the photographs. The judge misunderstood the medical evidence and the conclusions of the medical experts. He fell into the trap of requiring confident medical diagnosis instead of assessing the strength of the medical evidence on the balance of probabilities and looking at it in the context of the totality of the evidence.

The judge did not scrutinise the evidence of the parents, the explanation for the perineal tear, whether it was likely to have been caused by the potty and the failure to give any explanation for the anal injuries. He did not make any findings as to the credibility of the evidence of the family.

In a supplemental skeleton argument the appellant submitted that the judge fell into the trap identified by the Court of Appeal in re B (Non-Accidental Injury) [2002] EWCA Civ 752; [2002] 2 FLR 1133 by confusing the differing functions of the judge and the medical experts.

Mr Wildblood submitted that the judge did not apply the criminal standard of proof. In care cases at the first stage of reaching the section 31 threshold, the evidence had to be proved to a high standard. If the judge did apply the criminal standard, he was right to do so, since in reality, the distinction between the civil and criminal standard of proof in such cases was, as Lord Bingham of Cornhill said in B v Chief Constable of Avon an Somerset Constabulary [2002] 1 WLR 340 at paragraph 31 ‘largely illusory’. This standard of proof was applied by Bodey J in re ET(Serious Injury: Standard of Proof) [2003] 2 FLR 1203. The judge was therefore right to use words such as ‘near certainty’ in his approach to the medical evidence. The judge did not consider the medical evidence to be sufficiently cogent to be able to rely upon it. He was entitled to come to that conclusion.

He accepted that the judge did not deal with the lack of any explanation for the cause of the anal fissures.

Neither Mr Wildblood nor Miss Scriven advanced any arguments as to the relevance R v. Cannings [2004] EWCA Crim.1 since they accepted that there was by the time of the hearing before the judge no serious disagreement between the medical experts.

The test to be applied in care cases was set out in the speech of Lord Nicholls of Birkenhead in re H(Minors) (Sexual Abuse:Standard of Proof) ) [1996] AC 563. At page 586 of his speech he said

“Where the matters in issue are facts the standard of proof required in non-criminal proceedings is the preponderance of probability, usually referred to as the balance of probability. This is the established general principle. There are exceptions such as contempt of court applications, but I can see no reason for thinking that family proceedings are, or should be, an exception. By family proceedings I mean proceedings so described in the Act of 1989, sections 105 and 8(3). Despite their special features, family proceedings remain essentially a form of civil proceedings. Family proceedings often raise very serious issues, but so do other forms of civil proceedings.

The balance of probability standard means that a court is satisfied an event occurred if the court considers that, on the evidence, the occurrence of the event was more likely than not. When assessing the probabilities the court will have in mind as a factor, to whatever extent is appropriate in the particular case, that the more serious the allegation the less likely it is that the event occurred and, hence, the stronger should be the evidence before the court concludes that the allegation is established on the balance of probability. Fraud is usually less likely than negligence. Deliberate physical injury is usually less likely than accidental physical injury. A stepfather is usually less likely to have repeatedly raped and had non-consensual oral sex with his under age stepdaughter than on some occasion to have lost his temper and slapped her. Built into the preponderance of probability standard is a generous degree of flexibility in respect of the seriousness of the allegation.

Although the result is much the same, this does not mean that where a serious allegation is in issue the standard of proof required is higher. It means only that the inherent probability or improbability of an event is itself a matter to be taken into account when weighing the probabilities and deciding whether, on balance, the event occurred. The more improbable the event, the stronger must be the evidence that it did occur before, on the balance of probability, its occurrence will be established. Ungoed-Thomas J. expressed this neatly in In re Dellow’s Will Trusts (1964) 1 W.L.R. 451, 455: “The more serious the allegation the more cogent is the evidence required to overcome the unlikelihood of what is alleged and thus to prove it.”

This substantially accords with the approach adopted in authorities such as the well known judgment of Morris L.J. in Hornal v. Neuberger Products Ltd. (1957) 1 Q.B. 247, 266: This approach also provides a means by which the balance of probability standard can accommodate one’s instinctive feeling that even in civil proceedings a court should be more sure before finding serious allegations proved than when deciding less serious or trivial matters.”

More recent cases have raised the possibility that the principles set out in re H have been refined. In the first case, the Divisional Court heard an appeal, B v Chief Constable of Avon and Somerset Constabulary (see above), against the making of a sex offender order under section 2 of the Crime and Disorder Act 1998(the 1998 Act). The justices had found that the defendant was a sex offender within the meaning of section 2(1)(a) of the Act and that he had acted on a number of occasions in a way which brought him within section 2(1)(b). Section 2(1) states that, if it appears to a chief officer of police that the following conditions are fulfilled …. in subsection (1)(a)

“that the person is a sex offender; and”

in (1)(b)

“that the person has acted, since the relevant date, in such a way as to give

reasonable cause to believe that an order under this section is necessary to protect the public from serious harm from him,”

Lord Bingham of Cornhill, CJ in his judgment considered the standard of proof to be applied in that appeal and said at paragraph 31

“In a serious case such as the present the difference between the two standards is, in truth, largely illusory. I have no doubt that, in deciding whether the condition in section 2(1)(a) is fulfilled, a magistrates’ court should apply a civil standard of proof which will for all practical purposes be indistinguishable from the criminal standard. In deciding whether the condition in section 2(1)(b) is fulfilled the magistrates’ court should apply the civil standard with the strictness appropriate to the seriousness of the matters to be proved and the implications of proving them.”

I understand from that passage that Lord Bingham was drawing a distinction between the standard of proof necessary to establish each of the two subsections and that the standard of proof set out in the speech of Lord Nicholls in re H (above) was appropriate to proving the facts required for subsection 2(1)(b).

In the second case, R (McCann and Others) v Crown Court at Manchester; Clingham v Kensington Royal London Borough [2002] UKHL 39; [2002] 3 WLR 1313, the House of Lords in two appeals was concerned with section 1 of the 1998 Act in relation to the antisocial behaviour of three teenage defendants in the first case and one defendant in the second case. The House of Lords held that applications under section 1 were initiated by the civil process of complaint and were not criminal proceedings. At paragraph 37 Lord Steyn considered the standard of proof to be applied in such cases. He referred to re H (above) and 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) [1996] AC 563, 586D-H per Lord Nicholls of Birkenhead. For essentially practical reasons, the Recorder of Manchester decided to apply the criminal standard. The Court of Appeal said that would usually be the right course to adopt. Lord Bingham of Cornhill has observed that the heightened civil standard and the criminal standard are virtually indistinguishable. I do not disagree with any of these views. But, in my view pragmatism dictates that the task of magistrates should be made more straightforward by ruling that they must in all cases under section 1 apply the criminal standard.”

Lord Steyn accepted the principles set out in Lord Nicholls’ speech above; referred to, presumably, the passage in Lord Bingham’s speech in the Chief Constable of Avon and Somerset, but gave pragmatic advice to magistrates as how to apply the standard of proof in applications for antisocial behaviour orders.

In re ET (Serious Injuries: Standard of Proof) [2003] 2 FLR 1203, an application for a care order under section 31 of the Children Act 1989, Bodey J heard an application in which the baby had sustained skull, brain and other injuries alleged to be at the hands of her parents. The judge said at paragraph 2 of his judgment that the standard of proof was the civil standard of the balance of probabilities and directed himself according to the principles in re H. He then referred to Chief Constable of Avon and Somerset Constabulary and to McCann (above) and said at paragraphs 5 and 6, citing the passage in re H at page 586 adding his emphasis

“…Although the result is much the same, this [the cogency requirement] does not mean that where a serious allegation is in issue the standard of proof required is higher. It means only that the inherent probability or improbability of an event is itself a matter to be taken into account when weighing the probabilities and deciding whether, on balance, the event occurred.”

“So it may very well be that, in looking at these more recent dicta, one is (as Miss Ball put it) somewhat ‘dancing on the head of a pin’; and no counsel has gone so far as to submit to me that, in a serious case such as this, it is now the criminal standard which should in terms be directly applied.

I therefore propose, in applying the civil standard and the re H(Minors)(Sexual Abuse:Standard of Proof) [1996] AC 563……cogency test here, to have well in mind the dicta in the latter two cases just cited. So, whenever in this judgment I ‘find’ something occurred, or expressed myself ‘satisfied’ or ‘persuaded’ of some fact or other, it is in the light of the authorities which I have just been discussing and on the basis that, in this very serious case, the difference between the civil and the criminal standards of proof is ‘largely illusory’.”

I understand that in many applications for care orders counsel are now submitting that the correct approach to the standard of proof is to treat the distinction between criminal and civil standards as ‘largely illusory’. In my judgment this approach is mistaken. The standard of proof to be applied in Children Act cases is the balance of probabilities and the approach to these difficult cases was set out by Lord Nicholls in his speech in re H. That test has not been varied nor adjusted by the dicta of Lord Bingham nor Lord Steyn who were considering applications made under a different statute. There would appear to be no good reason to leap across a division between crime and preventative measures taken to restrain defendants for the benefit of the community and wholly different considerations of child protection and child welfare, nor to apply the reasoning in McCann to public, or indeed to private, law cases concerning children. The strict rules of evidence applicable in a criminal trial, which is adversarial in nature, is to be contrasted with the partly inquisitorial approach of the court dealing with children cases in which the rules of evidence are considerably relaxed. In my judgment therefore Bodey J applied the incorrect standard of proof in the case of re ET.

In the present appeal, the judge correctly directed himself in accordance with the test laid down in re H, but he then allowed himself to elide the distinction between care proceedings and criminal proceedings in considering the allegations of sexual abuse. I agree with the appellants that he failed to distinguish between the different functions of the judge and the medical experts and was relying on a perceived requirement of certainty or near-certainty of their conclusions in their evidence. Thorpe LJ in re B (above) referred at paragraph 16 of his judgment to the importance of focussing upon and not confusing the functions in a judicial investigation of this sort and said at paragraph 17

“The expert of ultimate referral was there to guide the judge as to the relevant medical and scientific knowledge, inevitably expressing himself in medical language. The judge’s function was a very different one. He had to consider the question posed by s31 of the Children Act 1989 as to whether L was a child suffering or likely to suffer significant harm and whether that harm or likelihood of harm was attributable to the care given to the child, or likely to be given to him, if the order was not made.”

I agree with the submission of Mr Baker that the judge applied the wrong test to the medical evidence and on that ground alone, his decision cannot stand.

All Counsel invited us, if we allowed the appeal, to order a new trial before a High Court judge. Since we have allowed the appeal, it would be wrong for this court to express a conclusion as to the weight to be attached to any or all of the medical evidence or to the evidence generally. I shall try to exercise forbearance, but Mr Baker made two other submissions upon which I feel I should express some comments, since each is an additional ground upon which to set aside the decision of the judge.

Dr W was placed in a most difficult and unsatisfactory position for a medical expert. He did not have an opportunity to see and examine the child and was dependent entirely upon the information provided by others. It is clear from reading the transcript of his evidence at the trial that the photographs he examined on the day of the hearing gave him a new perspective of the case and was an important, if not the important, reason for the change in his evidence. The judge became confused by the changing views of Dr W and possibly those of other experts and, I am satisfied, misunderstood the final evidence which was presented to him. I also somewhat doubt the necessity, in the case of an expert like Dr P, to discount an answer given in reply to a leading question. It is clear that the medical evidence must be re-evaluated in circumstances in which the medical experts have access to all the relevant documents and photographs and can give fully informed evidence to the next judge upon which he or she can assess the cogency of the medical evidence.

The final point upon which I agree with Mr Baker is the failure of the judge to tackle the likely cause of the two separate groups of ‘injuries’ to the child. There was an explanation of the perineal tear, the straddling of the potty. The judge only dealt peripherally with that explanation without comment. He did not comment other than in general terms about the second set of ‘injuries’ the anal fissuring. It seems to me that the judge, having rejected the medical evidence in isolation from the non-medical evidence found himself in the difficulty that evidence cannot be evaluated and assessed in separate compartments. A judge in these difficult cases has to have regard to the relevance of each piece of evidence to other evidence and to exercise an overview of the totality of the evidence in order to come to the conclusion whether the case put forward by the local authority has been made out to the appropriate standard of proof. This, in my view, the judge in this case failed to do.

For the above reasons, in my judgment, the decision of the judge cannot stand and the case requires to be reheard.

I should like to add a final comment. Mr Robertson, on behalf of the guardian, provided us with a helpful note of the problems which arose over the photographs. Dr W asked for the clinical photographs of the injuries in March 2003. It appears that the photographs were held by the police who initially refused to release them to Dr W. The police eventually agreed, on certain conditions, and sent them to the doctor. Most unfortunately there were two sets of photographs taken at the examination in September 2002 and one set was sent to Dr W and another set to Dr P. It appears that Dr G had a complete set of photographs from the hospital which she brought to court on the 24^th November 2003.

I do not wish to cast blame on any particular person or organisation but the failure of the system whereby the relevant photographs were not seen by all the experts before their reports were written for the court and not seen at all by Dr W before he went to court, has had a number of serious consequences. There were and continue to be serious delays in the hearing of the case. It was necessary for an appeal to be heard and a retrial of the whole case before a High Court judge. This has had an extremely serious effect on limited resources. It has required several additional hearings before the original trial in addition to the appeal hearing. It has caused the cost of the additional hearings, in judge time and in the time and cost to the local authority which is always short of social workers and other resources. A guardian has been tied up for an unnecessarily long time, up to an additional year at a time when CAFCASS is under extreme pressure from shortage of guardians. The additional cost to the public purse from public funding of all parties including the local authority, albeit from a different budget, for the additional hearings will have been considerable. Most important of all, the child and those around her, her brother and the family have all suffered from the unnecessary prolongation of the stress of these proceedings. Both ET and her brother LT are entitled to have their lives sorted within a reasonable period. In looking at the welfare of the child section 1(2) of the Children Act states

“…any delay in determining the question [of the upbringing of the child] is likely to prejudice the welfare of the child.”

Photographs have become an increasingly important part of medical evidence. When they are taken, suitable local protocols should be devised as soon as possible to enable all the photographs to be released to all the relevant experts when they receive instructions to report in care proceedings. I do not know if this is a widespread problem but it certainly requires consideration at a national level for discussion between the judiciary and all the relevant disciplines.