1 Re H (Minors) (Sexual abuse: Standard of Proof) [1996] 1 All ER 1 at 22, per Lord Nicholls.

2 Ibid, at p 4, per Lord Browne-Wilkinson.

3 Children Act 1989s, s 33(3). Where the mother and father are unmarried, the mother only has parental responsibility unless the father has obtained it either by formal agreement with the mother, or through a court order, Children Act 1989, s 2(2) and s 4.

4 Lord Mackay in his Joseph Jackson Memorial Lecture: (1989) 139 NLJ 505 at 506.

5 I am particularly concerned about those cases where the court has rejected a diagnosis of non-accidental harm by experts who have considerable experience of diagnosing and dealing with abused children in the course of their clinical practice.

6 [1996] 1 All ER 1.

7 For ease of writing, the feminine personal pronoun will be used throughout this article to describe the child, unless the context otherwise demands.

8 For a fuller explanation, see Working Together Under the Children Act 1989 (London: HMSO, 1991). The view may be taken that a court order authorising a child's removal from home may cause her as much harm as the harm from which she is being rescued. For a reported example of where a judge amved at such a conclusion, see Re P (Minors: Wardship) (Access: Contempt) [1991] 1 FLR 280. The judge had to balance the injury already done to the child from a sexual assault by her step-father against the harm which would be done to her by removing her from home, or by keeping the step-father away from the home. The judge was plainly impressed by the evidence of the child psychiatrist, who took the view that the child and step-father should not be separated irrespective of whether or not the step-father admitted abusing the child. A similar view was taken by the judge in Re FS (Minors) (Care Proceedings) [1996] 1 FCR 666.

9 In Re H (Minors) (Sexual abuse: Standard of Proof) [1996] 1 All ER 1, the eldest daughter was being accommodated with foster parents with the agreement of her mother. The disadvantage of the accommodation provisions in the Act, for child protection purposes, is that any person with parental responsibility is entitled to recover an accommodated child at any time: Children Act 1989, s 20(8), as modified by s 20(9).

10 Registration occurs where a decision has been made at a case conference to implement an inter-agency child protection plan, see Working Together Under the Children Act 1989, Part 6.

11 Under s 8 a court can make residence, contact, specific issue and prohibited steps orders. Such orders all have an impact on the parents' parental responsibility.

12 Evidence is initially presented in documentary form, and practitioners have been instructed on the efficient preparation of court bundles: Practice Note [19941 2 FLR 323. This note makes salutary reading: it indicates how badly some cases are prepared, for example it states that illegible or truncated documents are frequently found in court bundles. These, and other failings, may not be discovered until the day of the hearing, which creates a real risk that material evidence supporting, or weakening, the applicant's case, but which is not subsequently adduced orally, may not have been read by the judge or magistrates.

13 See, for example, the different reasons given for the possible causes of the bruising and harm to the child in Re M (A Minor) (No 2) (Appeal) [1994] 1 FLR 59.

14 Physical Signs of Sexual Abuse in Children, Royal College of Physicians (London: Royal College of Surgeons (1991) para 1.9.

15 Examples of non-symptomatic sexual abuse include touching the child's genitals, or masturbation of the perpetrator by the child. Chronic child sexual abuse often commences in this way, extending later to oral, anal and vaginal, attempted or actual, penetration: see D Glaser ‘Evaluating the Evidence of Children’ [1989] Fam Law 487.

16 Muram, D ‘Child Sexual Abuse: Relationship between Sexual Acts and Genital Findings’ (1989) 13 Child Abuse and Neglect 211 CrossRefGoogle ScholarPubMed; Bays, J and Chadwick, D ‘Medical Diagnosis of the Sexually Abused Child’ (1993) 17 Child Abuse and Neglect 91.CrossRefGoogle ScholarPubMed

17 See, for example, the medical evidence concerning ‘Peter’ in Re G [1987] 1 FLR 310 at p 317 G; and concerning D in Re M and R (Expert Opinion Evidence) [1996] 2 FCR 617.

18 See Re E [19871 1 FLR 269 for an example of where medical evidence could not be obtained because the 10 year old child refused to allow the doctor appointed by the Official Solicitor to examine her.

19 In practice this is the position even in those cases where the child is clearly competent to give evidence. In this regard Re H (Minors) (Sexual abuse: Standard of Proof) [1996] 1 All ER 1 was unusual.

20 Children (Admissibility of Hearsay Evidence) Order 1993, SI 1993/621.

21 [1990] 1 FLR 203.

22 The recording is admitted as a form of hearsay evidence.

23 The dangers inherent in the latter are well illustrated in Re E [1987] 1 FLR 269.

24 Butler-Sloss LJ provided guidelines for the interviewing of children in the Report into Child Abuse in Cleveland, Cm 412 (1988). In Re E (A Minor) (Child Abuse: Evidence) [1991] 1 FLR 421, Scott Baker J emphasised the importance of following these guidelines. See too the Memorandum of Good Practice (1992) HMSO.

25 An extreme example of flawed interviews resulting in much of the information received from the children being rendered unreliable, and therefore valueless, arose in Rochdale Borough Council v A [1991] 2 FLR 192. Crucial interviews were not taped, other recordings were of poor quality, techniques were used which were completely out of line with good practice, leading questions were asked, anatomically correct dolls were used improperly, and interviews were repeated and were contaminated by one child being told what another child had said. See too, Re N (Child Abuse: Evidence) [1996] 2 FLR 214, where a father's appeal against a finding that he had sexually abused his daughter was allowed mainly on the ground that the video recorded interview showed that the child's answers were so tainted by pressure and the use of leading questions as to be totally unreliable.

26 Re C (Expert Evidence: Disclosure: Practice) [1995 11 FLR 204 at 205.

27 See the comments by Bracewell, J in Munchester City Council v B [1996] 1 FLR 324, at 329–30.Google Scholar These criticisms of expert witnesses are not, of course, unique to children cases, see Lord Woolf's interim report to the Lord Chancellor, Access to Justice (1995) chapter 23.

28 [1991] 2FLR 192 at 208–10.

29 [1995] 1 FLR 181.

30 Ibid, at 199.

31 Until recently the courts followed obiter dicta in the Court of Appeal in Re S and B (Child Abuse: Evidence) [1990] 2 FLR 489 which stated that it is not admissible for the expert to give a direct expression of opinion about whether a witness is telling the court the truth. In Re M and R (Minors) (Expert Opinion Evidence) [1996] 2 FCR 617 these remarks were found to have been made per incuriarn because no reference was made to s 3 of the Civil Evidence Act 1972. The Court of Appeal held that s 3 allows the reception of expert opinion evidence on an issue which could be the ultimate issue in a case, for example whether the child was telling the truth. However, the expert must be qualified to give such an opinion otherwise his opinion is irrelevant. Furthermore, the ultimate issue is for the judge to decide and all questions of weight and relevance are for him.

32 Supra.

33 By their mother, her cohabitee and another man. The psychiatric evidence was supported to some extent by medical evidence which was considered by the paediatric experts to be noteworthy, and to raise concern, but not to be diagnostic of abuse.

34 In fact the judge's reasons are hardly referred to in the report of the case.

35 [1996] 2 FCR 617 at 623.

36 Ibid at 624; see too, Re N (minors) (Residence Orders: Sexual Abuse) [1996] 1 FCR 244.

37 [1994] 1 FLR 59. For critical commentary, see J R Spencer (1994) 6 JCL 160, and the editorial by M Hayes in the same issue.

38 D Glaser ‘Evaluating the Evidence of Children’ [1989] Fam Law 487 at 489.

39 On the ‘rule of optimism’, which researchers observed prevailed as a determinant in decision-making by child protection teams, see Eekelaar, J, Dingwall, R and Murray, T The Protection of Children: State Intervention and Family Life (Oxford: Blackwell, 1983).Google Scholar

40 It may be that one of the reasons why the Court of Appeal is so reluctant to intervene with a judge's findings of fact or exercise of discretion is because it is required to find that the judge has been ‘plainly wrong’. This is an offensive finding to make against a fellow judge whom the court respects, and one solution might be for the language to be modified in relation to appeals made on these grounds.

41 Gv G [1985] 1 WLR 647 at 652, per Lord Fraser of Tulleybelton.

42 Hart, H L A The Concept of Law (Oxford University Press 1961) p 139.Google Scholar

43 Ironically, this ‘hands off’ approach by the Court of Appeal will not be followed where the judge accepts the expert evidence, finds that the child has been abused, but fails to make his judgment appeal proof because he slightly misapplies the law. Here he will be at risk of a successful appeal, as in Re N (Child Abuse: Evidence) [19961 2FLR 214. One improvement would be for the appellate courts more readily to treat the judge's weighing of the facts and of the opinion evidence as a matter of law.

44 [1996] 1 All ER 1.

45 Sir Stephen Brown P and Millett LJ, Kennedy LJ dissenting.

46 [1996] 1 All ER 1 at 3.

47 At 17.

48 Re Dellow's Will Trusts, Lloyds Bank Ltd. v Institute of Cancer Research [1964] 1 All ER 771 at 773. All three counsel had agreed that this was the appropriate test. The manner in which Lord Nicholls elaborated on this approach in the context of an allegation of sexual abuse is disturbing. He said, at 16, ‘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…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.’ Of course this is the case where the sample is the whole population of stepfathers and stepdaughters; but stepdaughters do not normally make such an allegation against their stepfathers. Once the allegation has been made the court is dealing with an entirely different sample, to which entirely different considerations apply. The trap which Lord Nicholls fell into was to equate the seriousness of an allegation with its likelihood. There is evidence that children do not often lie about sexual abuse, see J R Spencer and R Flin The Evidence of Children (Blackstone Press, 2nd edn, 1993) ch 11, and especially pp 318–333.

49 [1996] 1 All ER 1 at 8–9.

50 Ibid at 8.

51 In fact there was material to suggest that the judge had misunderstood an earlier Court of Appeal ruling on the standard of proof, and that he had applied a higher than ordinary standard of proof. Lord Lloyd was certainly of this view, see ibid at 9; however, Lord Nicholls was satisfied that the judge had applied the right test, see ibid at 22.

52 [1996] 1 All ER 1 at 15.

53 See the quotation which opens this article.

54 Ibid at 21. However, in so far as the examples he gave related to facts rather than to family dynamics, it is still essential that each fact is shown to have occurred on the balance of probabilities. A piece of evidence which is dismissed as unproven cannot form part of the local authority's cumulative case.

55 Part III of the Act imposes duties and powers on local authorities to provide services for children in need, and to take reasonable steps to reduce the need to bring care proceedings.

56 Though see the judgment in the Court of Appeal [1995] 1 FLR 643 at 652 about the nature of these concerns, particularly in relation to one of the younger daughters.

57 See, for example, Re P (A Minor) (Care Order: Evidence) [1994] 2 FLR 751 where a young baby was taken to hospital with subdural bleeding commonly associated with shaking or blunt trauma, from which he died. The medical evidence was conflicting: the doctors who attended the child were of the opinion that the injury was caused by a deliberate act, a pathologist and a consultant neuro-radiologist formed the view that the child's death was from natural causes. There was no other evidence of neglect or ill-treatment. Douglas Brown J held that the local authority had failed to prove to the standard commensurate with the gravity of the allegation that the baby's injuries had been non-accidentally caused. Therefore he had no jurisdiction to make a protective order in relation to the baby's older brother.

58 Per Lord Lloyd, at 9.

59 Ibid at 3. He developed his reasoning by drawing a telling war time analogy concerning alleged sightings of approaching enemy aircraft.

60 At 4.

61 [1990] Fam 86 at 121; see too, Butler-Sloss LJ at 101.

62 Stuart-Smith LJ's emphasis. See too, Butler-Sloss LJ and Neill LJ in Re W (Minors) (Wardship: Evidence) [1990] 1 FLR 203 at 215 and 228 respectively. Lord Nicholls dismissed these authorities as unhelpful: ‘I do not consider they assist in arriving at the proper meaning of the relevant provisions of the 1989 Act. In the material respects the Act set up a new code. It is to be approached and interpreted accordingly.’

63 At 10. He reinforced his argument by pointing out that the same principle applies in a criminal trial.

64 As he observed, at 11,′ the two halves of the subsection are not interlinked, logically or linguistically'.

65 At 11.

66 At 11.

67 [1996] 2 FCR 617.

68 Children Act 1989, s 1(1): ‘When a court determines any question with respect to-(a) the upbringing of a child;…the child's welfare shall be the court's paramount consideration.’

69 Section 1(3)(e).

70 [1996] 2 FCR 617 at 625, per Lady Justice Butler-Sloss.

71 Ibid at 626, her Ladyship's emphasis.

72 A similar exercise should also be carried out in relation to likely significant harm.

73 Mistaken findings of child abuse are also likely to lead to a loss of public confidence in the child protection system, see Report into Child Abuse in Cleveland, Cm 412 (1988).

74 Children Act 1989, s 34, though he is at risk of the court authorising denial of contact.

75 It is recognised that some local authorities will not contemplate rehabilitation to a parent who refuses to admit to harming the child, and that this presents the parent with a major difficulty.

76 [1996] 1 All ER 1 at 8.

77 bid, at 4, quoted at the outset of this article.

78 Ibid. In so far as the reasoning of the majority in Re H (Minors) (Sexual abuse: Standard of Proofl was extended to the welfare stage of child protection proceedings in Re Mand R (Minors) (Expert Opinion Evidence) [1996] 2 FCR 617 it seems that Lord Browne-Wilkinson's fears are already starting to be realised.

79 In this regard he echoed Sir Stephen Brown P in Newham London BC v AG [1993] 1 FLR 281 at 289 where he said ‘I very much hope that in approaching cases under the Children Act 1989 the courts will not be invited to perform in every case a strict legalistic analysis of the statutory meaning of s 31’. The problem with statutory criteria is that it can lead courts to be dominated by the ‘tyranny of language’ and to lose sight of the law's purpose, see the opening words of Lord Templeman's speech in Re M (A Minor) (Care Order: Threshold Conditions) [1994] 3 All ER 298 at 309, which concerned a different aspect of the proper interpretation of the threshold test.

80 [1996] 1 All ER 1 at 12.

81 [1996] 1 All ER 1 at 21.

82 See the report of the decision of the Court of Appeal [1995] 1 FLR 643 at 646.

83 This is one reason why a child victim often retracts what she has said, but where she does, this makes the evidential burden on the local authority even harder to discharge.

84 The guardian ad litern, whose duty it is to safeguard the child's interests, is not the applicant for the order. However, he or she will often support the local authority's application, and will instruct a solicitor accordingly.

85 [1965] AC 201. The House of Lords quoted with approval the dictum of the trial judge that the wardship jurisdiction' is not based on the rights of parents, and its primary concern is not to ensure their rights but to ensure the welfare of children.'

86 Re B (Minors) (Termination of Contact: Paramount Consideration) [1993] 3 All ER 524, per Butler-Sloss LJ at 531.

87 [1996] 2 All ER 78.

88 This enables the court to make a child assessment order, s 43(1).

89 This enables the court to make an emergency protection order, s 44(1), or an interim care order, s 38(2). 90.

90 section 31(2).

91 This approach was rejected in The Review of child Care Law, an Interdepartmental Working Party which produced consultation papers and recommendations during 1984 and 1985.

92 Children Act 1989, Sch 3 details the scope of a supervision order, for a fuller description, see Hayes, M and Williams, C Family Law: Principles, Policy and Practice (Buttenvorths, 1995) pp 174–7.Google Scholar Under the present law the court must obtain the consent of the parents before giving the supervisor powers to give directions of this kind, Sch 3, para 3. It is suggested that this requirement should be removed under any reformed system.

93 Such loss of trust and confidence may well result in the parents avoiding any further contact with the helping agencies, and failing to secure medical treatment for their child for fear of further accusations of child abuse.

94 European Convention on Human Rights and Fundamental Freedoms, Art 8.

95 [1965] AC 201.

96 At 241. This statement was quoted with approval by Lord Jauncey in Re L (A Minor) (Police Investigation: Privilege) [1996] 2 All ER 78, at 84 when he was justifying departing in child protection cases from the normal rules relating to privileged communications.