The Practical Lawyer


Children – standard of proof

The Court of Appeal refused F’s appeal against the judge’s findings in care proceedings under Part IV CA 1989 that he had sexually abused his daughter (Y).

Baker LJ acknowledged the difficulties in relation to the standard of proof, particularly in cases involving serious allegations of sexual abuse, and the immense challenges for judges dealing with these cases. However, he makes clear that the law is clear: ‘It is the unqualified civil standard of proof that must be applied. But many judges hearing these difficult cases find that the balance of probabilities is not always an easy standard to apply.’

He also highlighted the government guidance, Achieving Best Evidence in Criminal Proceedings: Guidance on interviewing victims and witnesses and guidance on using special measures (ABE) which assists courts in reaching decisions in such cases (the guidance applies to civil as well as criminal proceedings). But Baker LJ noted that it is extremely detailed and often very challenging for police officers and social workers to follow.

Y was born in 2007. Her parents married in 2008 and separated the following year. She lived with M and had regular contact with F. Allegations of sexual abuse against F were made when Y was not yet three years old, but Y did not repeat to the social worker any of what she had told M had happened. However, the social worker concluded that both parents were alleging abusive behaviour from each other and Y was made subject to a child protection plan under the category of emotional harm. Contact between Y and F had been suspended during investigations into the initial allegations, but then resumed, and the LA closed the file.

In 2016, Y made a further allegation against F but no formal report was made for some weeks. The police and the LA then became involved, and Y gave statements to the police that H had sexually abused her. No criminal charges were brought but Y was again made subject to a child protection plan under the category of emotional harm.

M started private law proceedings under the Children Act seeking an order restricting F’s contact. At a fact-finding hearing, the judge made a number of serious findings of sexual abuse against F. He appealed on grounds of procedural failures, for example, that the judge failed to direct himself correctly or adequately as to the applicable law. However, the principal focus of his argument was directed at the judge’s treatment of the ABE interviews.

Baker LJ considered the ABE guidance in detail and the transcripts of the ABE interviews in light of the guidance. He concluded that though there were, unquestionably, significant breaches of the ABE guidelines during the three interviews with Y (eg no record of any planning of the interview process), the first and second interviews contained a significant amount of free narrative in accordance with the guidance. He ruled that the deficiencies were not so serious as to render them of no evidential value and the interviews contained significant evidence on which the judge was entitled to rely.

Also, central to the judge’s decision was Y’s ‘veracity’ in her interviews, his impression of F’s evidence (which was evasive, self-serving and dishonest), and his positive assessments of M’s evidence. These assessments were fundamental to his ultimate conclusion and it was not for the appeal court to disagree with those assessments. The judge was entitled to make the findings on the evidence put before him, in particular the compelling account given by Y. Re Y and E (Children) (Sexual Abuse Allegations) [2019] EWCA Civ 206. Source:


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