Navigating unadmitted allegations: the cart before the horse
Kristine Lidgerwood provides a self-check for a situation which many practitioners will be familiar with and which applies equally to public law and private law proceedings. The unadmitted allegation.
The challenge of unadmitted allegations
Sometimes those allegations can be of really nasty and abusive behaviours. The very thought of them causes us naturally to want to invoke protective action for those within proceedings for whom a repeat of those behaviours would cause harm.
This instinct is most strongly embedded within the social work profession where protective measures are taken after section 47 investigations based on information which may in a large part be from third parties or which may be a circumstance which could have a number of explanations, some of which may be sinister.
The power of public and private law proceedings
We are all further encouraged to pursue those protective actions when public law proceedings are initiated and the court is empowered to make interim orders because “there are reasonable grounds to believe” or within private law proceedings when a CAFCASS safeguarding letter is received and the advice to court is that no interim contact should be permitted or short term orders are recommended.
The critical evaluation of unadmitted allegations
But there is a point where, even when it seems to be counter-intuitive, we can no longer include certain alleged happenings in the factual matrix for protective planning.
Allegations are events which either happened or did not.
It is a binary decision. There is no middle ground, and they only happened if admitted or proved to the relevant standard of proof for the tribunal in which they are heard.
Challenges in allegations of sexual abuse
An assessment of risk has to be based on fact (admissions or findings), otherwise it is entirely speculation.
For example, can a court evaluate a risk of sexual harm absent of the fact of the allegation being proven?
It is wrong to seek to weigh a risk that was not sought to be proved. Any discretion and evaluation undertaken by a court or an expert is flawed. The unproven allegation has to be treated as not having occurred. It cannot remain lingering in consciousness to taint or influence the potency or relevance of other unproven allegations or proven ones.
Approaching an allegation from the mindset of “there is no smoke without fire” or an “IF the allegations are true we need to safeguard” is flawed.
A strident examination of available evidence available to present to a court to prove the finding must be undertaken. If it is said allegations are relevant, then it follows to consider whether these allegations can be proved or should be proved.
Sometimes, and often where an allegation is of the most horrible nature, the evidence is just not there. Frequently we find ourselves in situations where there is an allegation of (what appears to be) sexual abuse, where the child is very young and could not be a witness or where the alleged victim alleges but is unwilling to go further and engage in a police investigation or provide a statement in family proceedings.
It can be very difficult to reach the position of conceding that such findings cannot be sought due to paucity of evidence.
The Binary Approach
And so…we must go back to the binary approach – if we cannot prove it then it is treated as not having occurred. You cannot sustain a halfway house. You cannot to seek to opine about the credibility of allegations where no finding is being sought.
Furthermore, absent of a proven factual matrix, the opinion of an expert who may provide a valuable insight in to risk – e.g. a psychologist, can not offer anything of value to the court.
Imagine the scenario:
The expert [X] is interviewing the alleged perpetrator [P]. X asks P “when the incident occurred what did you believe victim [V] understood of the situation?”
P says there was no incident. The X asks well how do you think V might have felt in that situation?
P answers that they cannot speculate on an event that did not occur.
I have seen risk assessments conclude that P is a high risk because they are denying events and that they lack empathy for a V!
Well of course they are denying– there are no findings. P has answered X in the only truthful way that anyone would.
Instructing an expert before there is a factual matrix is a very risky approach and has the potential to yield very inaccurate results. Including material containing allegations that are unproven without making it clear that the expert is to discount unproven allegations and work only on established findings is similarly problematic.
This situation still arises where there is no separate finding of fact hearing and a composite hearing is listed. Regrettably then the flawed view of the expert is then submitted as supporting the credibility of the unproven allegation.
The importance of evaluating the need for fact-finding hearings
And finally a brief reminder of how we need to evaluate whether a finding of fact hearing is the right approach.
The long established case of Oxfordshire CC v DP, RS, BS [2005] EWHC 1593 (Fam) para24. The authorities make it plain that, amongst other factors, the following are likely to be relevant and need to be borne in mind before deciding whether or not to conduct a particular fact finding exercise:
a) The interests of the child (which are relevant but not paramount)
b) The time that the investigation will take;
c) The likely cost to public funds;
d) The evidential result;
e) The necessity or otherwise of the investigation;
f) The relevance of the potential result of the investigation to the future care plans for the child;
g) The impact of any fact finding process upon the other parties;
h) The prospects of a fair trial on the issue;
i) The justice of the case.
Conclusion
The proven facts are your horse, the welfare and protection information and decisions is your cart. If you have no horse your cart is going nowhere or alternatively it is rolling off down the road out of control!
Kristine Lidgerwood is a Consultant Barrister at Unit Chambers.
