Children law update
Michael Jones KC analyses the latest public law children cases of interest to practitioners.
I will kick this update off with some really useful guidance provided by Arbuthnot J in A Health Board v AZ & Ors (Termination of Childhood Pregnancy: Guidance) (Rev3) [2023] EWHC 2517 (Fam). This case involved a 11 year old girl, AZ, who had become pregnant as a result of being raped by a 14-year-old whom she met on the internet. The Health Board issue an application for declarations that a termination of AZ’s pregnancy was in her best interests and that it was in her best interests for tissue to be taken from her placenta for the purposes of forensic testing in a criminal investigation. AZ was assessed by both the social worker and Guardian as being competent and after being allowed time to consider the risks and benefits to AZ of a termination, her parents agreed that a termination would be in AZ’s best interests.
In concluding that the making of both declarations sought was in AZ’s best interests, Arbuthnot J provided the following, invaluable, guidance in how to approach applications of this nature, which will often be urgent due to the timescales involved.
“Any applicant in such a case is reminded to consider Part 12 of the Family Procedure Rules concerning proceedings relating to children and Practice Direction 12E where the approach to urgent business is considered. PD12E 3.1 sets out guidance for children subject to medical treatment, nothing I say below is meant to contradict that practice direction.
Where a termination of a pregnancy is contemplated in respect of a child who lacks Gillick competence, an application to the Family Division ought to be made as soon as practicable first if there is any doubt first as to what is in her best interests or second as to her or her parents’ consent for her to undergo a termination: see An NHS Trust and D [2003] EWHC 2793 (Fam).
Where, as was initially the situation in the case of A, it appears that there is a divergence of views, consideration should be given to an application at an early stage, even if the application is subsequently withdrawn: Re AB [2019] EWCA Civ 1215.
Where a termination of pregnancy is contemplated in respect of a child, the applicant should make an early referral to the other relevant statutory bodies, including the relevant local authority, the relevant Integrated Care Board in England or the relevant Local Health Board in Wales, depending on the applicant, to consider whether the child meets the criteria to receive support.
Any application to the High Court should include the following:
a. Written evidence from two registered medical practitioners who are able to address the requirements of section 1 of the Abortion Act 1967, preferably from two obstetricians;
b. Written evidence from a child and adolescent psychologist or psychiatrist who has met with the child to provide evidence on her Gillick competence to consent to any decisions regarding termination. It would be preferable for this evidence to have been obtained in the absence of the child’s mother and father.
c. A full best interests analysis by one of the two obstetricians. The focus of this analysis ought to be on the subject child and not on the foetus, consistent with the case law in Vo v France (2005) 10 EHRR 12 at [81-82]; Paton v British Pregnancy Advisory Service [1979] QB 276; Paton v United Kingdom (1980) 3EHRR 408. The analysis ought to include:
i. all options available.
ii. a summary of the risks and benefits of each option;
iii. the preferred option and the reason why it is preferred;
iv. the applicant’s position on any other consequential orders sought such as:
1. sterilisation;
2. contraception; or
3. the retaining of any placenta tissue for the purposes of forensic investigation.
d. A care plan addressing the detailed logistics of the proposed treatment and the support that will be offered to the child prior to, during and following any sanctioned treatment. This support is to include mental health support where appropriate.
Should there be more than one agency involved with the child, a multi-agency meeting should take place to enable all relevant agencies to contribute to the care plan referred to at d. above. Where possible, this should take place within ten working days of any application first being contemplated.
The application ought to stress the urgency with which a directions appointment is sought, the nature of the application which gives rise to the urgency and the up-to-date gestation timetable.
The application should highlight the need for an urgent direction to join the child as a party, so the child is represented at the first directions hearing.
An application for a declaration which will permit an organ of the State to carry out a termination on a noncompetent child should be regarded as a medical treatment issue of the utmost urgency.
The urgency is likely to arise from a number of factors:
a. First, due to the requirements of the Abortion Act 1967, it would not be lawful for the court to sanction the termination after twenty-four weeks gestation in accordance with section 1(a), unless it was satisfied that the higher threshold of section 1(b) was met, namely that termination was “necessary to prevent grave permanent injury to the physical or mental health of the pregnant woman”.
b. Second, a more gestationally advanced foetus would be larger in size. If surgical termination is undertaken this becomes procedurally more complex to perform and can increase the risk of complications such as retained products of conception. If medical termination is undertaken advancing gestation would lead to increase in pain experienced and a greater likelihood of bleeding and psychological morbidity from witnessing the delivery of a more physically developed and recognisable foetus.
c. Thirdly, as time passes, the likelihood of finding a clinician with the relevant experience willing to perform the termination would decrease, which may result in further logistical difficulties in conveying the child to a different locality in order to affect the procedure.
Upon making the application, in accordance with the practice within care proceedings the applicant shall give notice to CAFCASS/CAFCASS Cymru that an application is pending and that a guardian may need to be allocated imminently.
The directions appointment should be listed within at least 48 hours of the application before a judge of the Family Division. At the time of the directions appointment, counsel instructed for the applicant would need to provide the court with the most ac-curate gestation timetable, including the date at which the child will be at 24 weeks gestation and her expected delivery date.
If the child remains unrepresented at the directions appointment, the court will consider a brief (1 hour) adjournment to enable the applicant to contact CAFCASS so that a duty guardian can represent the child at that hearing. Every attempt should be made to ensure that the child is represented at all hearings.
At the directions appointment, the court would be required to consider:
a. whether any of the evidence set out in the guidance above at paragraph 48 above is absent or requires clarification;
b. whether the joinder of any other statutory body is required, such as the relevant local authority, the relevant Integrated Care Board in England or the relevant Local Health Board in Wales (depending on the applicant);
c. the formal appointment of the Children’s Guardian and directions for their analysis to be prepared in advance of any final hearing; and
d. provision for the parents to prepare statements
The matter ought to be listed before a judge of the Family Division at the first available opportunity for a final hearing, no more than seven days later, with sufficient time to ensure that any outstanding evidence is obtained.
In circumstances where the court is satisfied that it is in the best interest of the child to undergo the proposed termination, it is advisable to make a declaration, instead of relying on any consent of the parents, to act as the substituted consent of the child, where the court has reasonable grounds to believe that either the parent’s past exercise of parental responsibility has been called into question or there has been a history of changed positions which would cast doubt on the ability of the procedure to take place in accordance with the envisaged time-table.”
H (Children: Placement Orders) [2023] EWCA Civ 1245 does not contain any new developments of law, but I have included this case because I found it interesting from a welfare perspective (n.b. I have not just included this because it is a Peter Jackson LJ judgment…. honest). The case involved 3 children, a 1 year old girl, G, and two elder boys. The boys had lived in foster care since 2021 and placements had been made at the end of that year. The local authority subsequently issued case proceedings in relation to G almost immediately after her birth. The risk issues identified related primarily to the mother’s relationships and her criminal activities. Ultimately, the local authority concluded that the progress made by the mother was just about sufficient in order to allow for G to remain in her care, whilst the mother herself had issued an application to revoke the placement order in relation to the boys. The Guardian however did not support G remaining in her mother’s care, whilst neither the local authority nor the guardian supported the rehabilitation of the boys to the mother’s care (the boys by this point had been in foster care for some time and were awaiting adoption). The Court at first in-stance revoked the placement orders in relation to the boys and permitted G to continue to reside with her mother under the auspices of a supervision order. The Guardian appealed. The Court of Appeal dismissed the appeal relating to G, so that she remained in the care of her mother under the supervision order, but allowed the appeal against the revocation of the placement orders relating to the boys.
This case was not straightforward and evidently required a very detailed and bespoke welfare analysis in relation to each of the children; the boys were a very separate issue to that of G. A point that Peter Jackson LJ identified was that the Judge had not fully considered the issue of safety planning and what would practically happen to the boys following revocation of the placement orders;
"At the same time, the boys, who urgently need a permanent family that can give them skilled parenting, have been kept waiting for what now amounts to 2½ years. They had said goodbye to their birth family and been prepared for adoption. That plan could only sensibly be sacrificed in favour of a plan for rehabilitation if the evidence showed that success could be predicted with a high degree of confidence.
This required a careful analysis of what might happen next if the mother's application succeeded. The Guardian advised (see paragraph 21 above) that any rehabilitation of the boys would need to be very carefully, gradually and comprehensively tested be-fore there could be real confidence in the likely success of rehabilitation and the sustainability of arrangements. The advice seems self-evident and the judge does not appear to have demurred. In practice, a revocation of the placement orders would set in train a sequence of events along these lines:
1. The local authority would have to accept that it should defer to the court and take steps to reverse its care plan. It would have to draw up a complex rehabilitation plan based on the circumstances of the boys, of G, of B, of the fathers, and pivotally of the mother, someone the judge had found will not be easy to work with under a supervision order, or even be honest.
2. The adopters who had been matched with the boys would probably be lost.
3. The boys would have to be supported to understand the changed plan, and the fact it could not happen straight away, and adapt to the reintroduction of contact.
4. The mother's care of G would have to be carefully monitored for a perceptible period.
5. The effect of B's return would have to be similarly monitored.
6. The position of the fathers would have to be monitored.
7. The local authority would at some point have to decide whether the boys could safely be returned, and if so how.
8. If the decision was negative, more litigation would be likely. The mother might seek to discharge the care orders. The local authority might apply for placement orders. The two sets of proceedings about the children have already lasted for over two years, and a third set is unlikely to be short.
9. If the decision was positive, reunification would hopefully succeed, but it might break down at some indeterminate point, in which case the boys would return to foster care and adoption may or may not be an option."
I really like the way that Peter Jackson LJ breaks this down in such a simple and logical way; his lordship makes clear that the Judge should have looked forward and considered the practical implications and impact upon the boys that revocation of the placement orders would have. If the Judge had done so, there could have only been one sensible conclusion, as his lordship identified;
"The amount of delay and uncertainty inherent in this programme is so obvious that the judge was bound to confront it squarely before preferring it to a plan for adoption that could be put into effect immediately. The boys' situation is a glaring example of the general principle, enshrined in section 1(2) of the Children Act 1989, that any delay in determining a question with respect to the upbringing of a child is likely to prejudice the welfare of the child. At paragraph 36, the judge pinned his decision on an assessment of the prospect of the mother as being able to care for the boys within a reasonable time frame. He found the prospect to be good, and he concluded that there was no reason why the boys should not return on three assumptions: that G continues to thrive, that the mother continues to function after B returns, and that there is no violence around the children. However, the judge was bound to question whether a care plan that was without professional support and was so dependent on delay and uncertainty for its success was a realistic final care plan at all. Had he done so, he would in my view have been driven to conclude that the prospect of a successful reunification of the boys was no more than speculative in the light of the evidence as a whole. As it was, a care plan along those lines would effectively delegate a final decision about rehabilitation to the local authority and contain the obvious possibility of further litigation and delay.
The second difference between G and the boys relates to the nature of the respective risk assessments. The judge made the point that, as the children would all be living in the same home, the risks would be similar. He reiterated that, although different considerations applied to the boys and G, he could not see that the long-term concerns in respect of G could permit her to remain at home but somehow rule out the mother as a carer for the boys. Even ignoring issues of overload and each child's special needs, I cannot uphold this line of reasoning. The risks within the home may have been similar, but the consequences for the children were not. In contrast to G, these boys have a fast-narrowing window for adoption. Delay would derail that long-standing plan for an indefinite period with uncertain consequences, while a failed attempt at rehabilitation might quite possibly deprive them of a family of their own altogether. The judge alluded to this at paragraph 9, but this critical element of the risk assessment did not find its place in his ultimate assessment. Instead, the decision appears to have been unduly influenced by a perception that it would be unusual for older children to be adopted while a younger child remains at home. Whether or not that is so, the risk assessment had to relate to the actual situations of these children and to address the consequences, here amounting to harm, that might come to them as a result of the abandonment of the plan for adoption. Again, had the judge approached matters in this way, he would in my view have been bound to conclude that the foreseeable consequences were so contrary to the boys' welfare that the plan could not to be embarked up-on and that the mother's application must be dismissed."
I think this judgment emphasises and reminds us of the imperative need to treat each subject child separately from a welfare perspective, to analyse the issue of risk to each individual child that is part of a sibling group, and also to look forward to the potential welfare impact upon each of the children should a certain course of action or care plan be followed.
Next up - EY (Fact-Finding Hearing) [2023] EWCA Civ 1241. This is an appeal from a judgment at first instance where threshold was found not to be crossed and the local authority’s application for a care order dismissed. The case concerned one child aged 14, E, who lived with her father and elder sister (who had turned 18 during the proceedings). The background history involved E making statements of a sexual nature to professionals, whilst the local authority asserted that in effect, she had been exposed to poor levels of parental supervision, neglect, and sexualised behaviours. A psychologist was instructed to assess E and her father, with that assessment concluding that the father displayed a limitation in thinking about and understanding the needs of the children and their own psychological and emotional experiences, and that E would remain at risk in the community should her underlying vulnerabilities not be addressed. The psychologist was not called to give oral evidence at the final hearing, however the local authority relied on the psychologist’s conclusions. The Judge ultimately criticised the psychological assessment and found threshold not to have been established.
A number of grounds of appeal were advanced, including that the Judge had fallen into error by misconstruing the unchallenged report of the psychologist and by failing to give it sufficient weight. The father opposed the appeal, in particular, in relation to the fact that the psychologist’s evidence was not challenged in cross examination, it was argued on behalf of the father that this was an approach counsel was entitled to take, citing Griffiths v TUI (UK) Ltd [2021] EWCA Civ 1442, [2022] 1 WLR. In that case, Asplin LJ (with whom Nugee LJ agreed) said (at paragraph 65):
“I can see nothing which is inherently unfair in seeking to challenge expert evidence in closing submissions. It may be a high risk strategy to choose neither to adduce contrary evidence nor to seek to cross-examine the expert but there is nothing im-permissible about it…. As long as the expert’s veracity is not challenged, a party may reserve its criticisms of a report until closing submissions if it chooses to do so.”
That case was however, subsequently appealed to the Supreme Court, with the judgment awaited at the time, albeit the point was not critical for the purposes of the appeal in this case, for the reasons articulated by Baker J;
‘Fortunately, the point which divided this Court in Griffiths v Tui does not seem to me to be central to the present appeal. Whatever may be the obligations on a party who seeks to challenge the conclusions of an expert, the judge is not obliged to accept those conclusions. As Nugee LJ observed in Griffiths v Tui (at paragraph 81:
"As a matter of basic principle, it is the function of trial judges to evaluate all the evidence before them in reaching their conclusions on the factual issues. That includes deciding what weight should be given to the evidence. I see nothing in the authorities that suggests that that obligation to assess the evidence falls away if it is "uncontroverted"; uncontroverted evidence still has to be assessed to see what assistance can be derived from it, viewed in the context of the circumstances of the case as a whole. Un-controverted evidence may be compelling, but it may not be: it may be inherently weak or unhelpful or of little weight for other reasons.”
As I read Bean LJ's dissenting judgment (in particular at paragraph 94), he was not disagreeing with that proposition.
This echoes the well-established principle in children’s cases in the family court emphasised by Charles J in County Council v K D & L at paragraph 39:
"It is important to remember (1) that the roles of the court and the expert are distinct and (2) it is the court that is in the position to weigh up the expert evidence against its findings on the other evidence."
This in turn is an aspect of the wider principle articulated by Dame Elizabeth Butler-Sloss P in Re T (Children) at paragraph 33:
"…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."
The judge was not obliged to accept Dr Timberlake's evidence simply on the basis that he had not been required to attend for cross-examination. On the contrary, he was obliged to evaluate Dr Timberlake's opinion in the context of the totality of the evidence. This aspect of the first ground of appeal therefore fails.’
This is why I found this case particularly interesting, because the Court of Appeal was satisfied and effectively confirmed that a Judge does not need to hear oral challenge to an expert in order to disregard their conclusions, albeit if they do depart from the views of the expert, there needs to be a proper justification for doing so, i.e. evaluating the expert evidence in the context of the entirety of the evidential canvas. The appeal was successful for other reasons, namely the fact that the Judge’s analysis of the psychologist’s report and the assertion that the expert had gone beyond the remit of his instruction (the Court of Appeal was not persuaded that the criticism of the psychologist in this respect was made out);
‘The judge's dismissal of this conclusion is troubling, partly because he did not really explain why he reached that decision but also because it seems to have been substantially influenced by his erroneous view that Dr Timberlake's analysis was tainted because it was based on matters which the local authority had failed to prove.’
The Court of Appeal also identified fatal flaws in the Judge’s evaluation of the evidence;
‘In short, there were substantial flaws in the judge's evaluation, in particular his disregard of some of the findings as "historic" and his failure to evaluate the findings in the context of Dr Timberlake's analysis and conclusions. In those circumstances, I conclude that this case falls within the category of ap-peals where this Court is compelled to interfere with a judge's evaluation of the evidence. For these rea-sons, I would also allow the appeal on ground two’
The matter was accordingly remitted for re-hearing before a different tribunal. Since this judgment was handed down, the Supreme Court has allowed the appeal in TUI UK Ltd v Griffiths [2023] UKSC 48, confirming that the general rule in civil proceedings is that a party is required to challenge by cross-examination the evidence of any witness of the opposing party on a material point which he or she wishes to submit to the Court should not be accepted. That rule extends to both witnesses as to fact and expert witnesses. This rule should however, not be applied rigidly and the Supreme Court identified some situations in which the rule may be relaxed.
Next up, what I consider to be a really important judgment on the issue of jurisdiction, London Borough of Hackney v P & Ors (Re Jurisdiction: 1996 Hague Child Protection Convention) [2023] EWCA Civ 1213. Moylan LJ summarised the issue in this appeal as follows;
‘The principal issue raised by this appeal is the date by reference to which the court determines whether it has jurisdiction based on a child's habitual residence, pursuant to the provisions of Article 5 of the 1996 Hague Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children ("the 1996 Convention"). Is it the date of the hearing or is it the date on which the proceedings were issued? This question has divided the judges of the Family Division, as outlined further below. A secondary issue is the extent of the court's jurisdiction to make orders under Part IV of the Children Act 1989 ("the CA 1989") if a child is present, but not habitually resident, in England and Wales nor any other Contracting State to the 1996 Convention.’
The background facts are fairly extensive, and the appeal follows the decision of MacDonald J when he determined that the relevant date was that of the hearing in question, not the date upon which proceedings were instigated. The full judgment really demands a careful reading but for those of you who are not as keen as me (or just too lazy to read a massive COA judgment), the headlines are as follows (helpfully provided by Moylan LJ at paragraph 125);
(i) the 1996 Convention applies to proceedings for an order under Part IV of the CA 1989;
(ii) the court must determine the issue of jurisdiction at the outset of proceedings by reference to the date on which the proceedings were commenced;
(iii) jurisdiction under the 1996 Convention can be lost during the course of proceedings, if it was based on habitual residence and the child has ceased to be habitually resident in England and Wales. Accordingly, the court must be satisfied that it retains jurisdiction at the final hearing;
(iv) jurisdiction is acquired under Article 5 from the date on which a child becomes habitually resident in England and Wales; the effect of this on existing proceedings will depend on the circumstances of the case;
(v) the court in England and Wales will likely have jurisdiction to make interim orders under Part IV under Article 11 when the child is habitually resident in a Contracting State;
(vi) the court in England and Wales will likely have jurisdiction to make interim orders under Part IV under Article 11 and will also have substantive jurisdiction based on a child's presence here when the child is habitually resident in a non-Contracting State.
So, in essence, we are back to the position we were in under BIIA where the relevant date to determine habitual residence is the date upon which the proceedings were instigated. It is also useful to note that in a situation where a child is habitually resident in a non-contracting state, the English court can still acquire jurisdiction on the basis of physical presence, pursuant to the provisions of the FLA 1986.
I am also going to give a mention Hayden J’s judgment in Lancashire County Council v M & Ors [2023] EWHC 3097 (Fam), firstly because it raises an interesting point in relation to propensity, secondly because I was in it and wish to engage in shameless self-promotion. The case involved an infant death, with the real issue of controversy being a previous posterior rib fracture, which the experts (and the Court) found had been inflicted; the potential ‘pool’ incorporated both parents. The cause of death had been conceded by the parents to be overlay, hence this issue of cause of death was not litigated. There was a history of domestic abuse between the parents, with the father having previously been convicted of offences perpetrated against the mother. One of the things I like about Hayden J is that he recognises how serious domestic abuse is; my own view (others may disagree) is that in society in general, there is a failure to realise just how significant a threat to life (as well as to a person’s physical safety and mental health) domestic abuse actually is. Hayden J made the following observations;
‘On 20th May 2021, F was convicted of an offence of Battery. He accepted in the witness box that the facts of that offence were primarily based on his 'strangulation' of M. He received a 12-week suspended prison sentence for this offence. F also accepted that the two further allegations of strangulation made by M in the Non-Molestation application are true. Explicitly, therefore, he has accepted three separate incidents of strangulation of M. The Criminal courts have come to understand the significance of this particular type of offending. The Stand Up to Domestic Abuse (SUTDA) survey into the effects of non-fatal strangulation (NFS) made the argument that it should be become a stand-alone offence.
Section 70 Domestic Abuse Act 2021 (DA Act 2021) introduced the offences of non-fatal strangulation and non-fatal suffocation. Schedule 2, paragraph 4 DA Act 2021 introduced the offence of racially or religiously aggravated non-fatal strangulation or non-fatal suffocation. The offences came into force on 7th June 2022 and are not retrospective. The summary report on data collected from SUTDA survey emphasised the following:
"Intimate Partner Homicide (IPH) has a strong relationship to domestic abuse and coercive control and international research has established that there are certain characteristics of domestic abuse or what are called 'high risk markers' that are especially strongly associated with future homicide and serious harm. Any kind of strangulation is one of the strongest markers. Research has shown that this increases the risk of homicide by eight times. This is not simply because NFS could 'accidentally' end as homicide, but because people who use strangulation are more dangerous."
The impact on victims also needs to be fully understood:
"NFS is also associated with severe trauma in its victims and is in fact experienced as a real threat to life. Victims of it report not only that it is incredibly painful, but it is also an experience of potential death. Perpetrators of NFS very often have this as their motivation. It is a particularly traumatic, and because of this an effective, way to exert the ultimate control and leave the victim in no doubt that their life has been threatened. It would be a mistake to think that NFS is a spontaneous and angry assault, it is more likely to be a controlled and determined threat."
These offences are triable either way. A person found guilty is liable on summary conviction to imprisonment for a term not exceeding 12 months, or a fine, or both and on conviction on indictment to imprisonment for a term not exceeding 5 years or to a fine, or both. In R. v Cook [2023] EWCA Crim 452, the Court of Appeal set out the approach to sentencing in strangulation cases.
This authority is clear that, in light of the conduct inherent in the offence, a custodial sentence will be appropriate, save for in exceptional circumstances. This should ordinarily be one of immediate custody, with a starting point of 18 months imprisonment. The Court identified the following, non-exhaustive, factors which will increase the starting point:
i. history of previous violence (the significance of the history will be greater when the previous violence has involved strangulation);
ii. presence of a child or children;
iii. attack carried out in the victim's home;
iv. sustained or repeated strangulation;
v. use of a ligature or equivalent;
vi. abuse of power;
vii. offender under influence of drink or drugs;
viii. offence on licence;
ix. vulnerable victim;
x. steps taken to prevent the victim reporting an incident; and
xi. steps taken to prevent the victim obtaining assistance.
I have made reference to these provisions because I consider that they require to be far more widely known and understood by family law practitioners. I am also signalling the extent to which I consider M to be vulnerable in this relationship. I regard her as being in danger."
Hayden J identified the father as being the perpetrator of the rib fracture, and in doing so considered the issue of the father’s general propensity for violent behaviours;
'For many years, the judgment of Wall J (as he then was) in CB and JB (Care Proceedings: Guide-lines) [1998] EWHC Fam 2000, has stood as a citadel, guiding the approach to the admission of evidence, likely to be relevant in establishing contested identified facts (i.e., 'fact finding hearings'). Some of that judgment's footings have crumbled, a little, over the years. The "ex hypothesis" assumption that "capacity to parent children" can only commence after a clear factual substratum has been identified in a 'split hearing', no longer carries with quite the same emphasis. Wall J also identified, as part of the "lessons to be learned", how the Court should approach evidence of 'propensity'. He stated:
"(v) Evidence of propensity or a psychiatric or psychological assessment of one of the parties is unlikely to be of any assistance in resolving a purely factual issue (my emphasis). There will in any event be before the court evidence from the local authority and the parents relating to the history of the case and the backgrounds of each of the parents. A psychologist or psychiatrist instructed to undertake an assessment of a parent for the first stage of a split hearing is unlikely to have a complete knowledge of the facts.
Wall J went on to say:
(vi) Furthermore, such a witness may, as here, express opinions as to propensity or as to responsibility for a child's injuries which are both prejudicial and wrong. The assessment of adult credibility as to the responsibility for a child's injuries (often the critical factual issue) remains the function of the judge. In my judgment, therefore, a psychiatric or psychological assessment of the parties should not be permitted at the first stage of a split trial unless the particular facts of the case demonstrate that such evidence is or is likely to be directly relevant to the factual issue to be tried.
It is important to emphasise that Wall J went no further than saying that propensity evidence was "unlikely" to be of any assistance in resolving a purely factual issue, he did not exclude it. Too frequently, the dicta in Re CB and JB (supra) have been interpreted as a complete prohibition on reliance on propensity evidence in fact-finding hearings. This is a misconstruction. Propensity evidence has a long-established place in the criminal law of England and Wales. Indeed, the criminal law has moved towards greater admissibility of propensity evidence in the years following Wall J's judgment. In R. v Hanson [2005] EWCA Crim 824, the Vice President, Rose LJ observed:
[7] Where propensity to commit the offence is relied upon there are thus essentially three questions to be considered:
1. Does the history of conviction(s) establish a propensity to commit offences of the kind charged?
2. Does that propensity make it more likely that the defendant committed the offence charged?
3. Is it unjust to rely on the conviction(s) of the same description or category; and, in any event, will the proceedings be unfair if they are admitted?
Rose LJ went on to analyse the scope of admissibility:
[8] In referring to offences of the same description or category, section 103(2) is not exhaustive of the types of conviction which might be relied upon to show evidence of propensity to commit offences of the kind charged. Nor, however, is it necessarily sufficient, in order to show such propensity, that a conviction should be of the same description or category as that charged.
[9] There is no minimum number of events necessary to demonstrate such a propensity. The fewer the number of convictions the weaker is likely to be the evidence of propensity. A single previous conviction for an offence of the same description or category will often not show propensity. But it may do so where, for example, it shows a tendency to unusual behaviour or where its circumstances demonstrate probative force in relation to the of-fence charged (compare DPP v P [1991] 2 AC 447 at 460E to 461A). Child sexual abuse or fire setting are comparatively clear examples of such unusual behaviour, but we attempt no exhaustive list. Circumstances demonstrating probative force are not confined to those sharing striking similarity. So, a single conviction for shoplifting, will not, without more, be admissible to show propensity to steal. But if the modus operandi has significant features shared by the offence charged it may show propensity.
The Supreme Court considered the circumstances in which propensity evidence might be established in R v Mitchell [2016] UKSC 55. Lord Kerr addressed the issue thus:
"Propensity - the correct question/what requires to be proved?
39. A distinction must be recognised between, on the one hand, proof of a propensity and, on the other, the individual underlying facts said to establish that a propensity exists. In a case where there are several incidents which are relied on by the prosecution to show a propensity on the part of the defendant, is it necessary to prove beyond reasonable doubt that each incident happened in precisely the way that it is alleged to have occurred? Must the facts of each individual incident be considered by the jury in isolation from each other? In my view, the answer to both these questions is "No".
43. The proper issue for the jury on the question of propensity… is whether they are sure that the propensity has been proved. … That does not mean that in cases where there are several instances of misconduct, all tending to show a propensity, the jury has to be convinced of the truth and accuracy of all aspects of each of those. The jury is entitled to - and should - consider the evidence about propensity in the round. There are two interrelated reasons for this. First the improbability of a number of similar incidents alleged against a defendant being false is a consideration which should naturally inform a jury's deliberations on whether propensity has been proved. Secondly, obvious similarities in various incidents may constitute mutual corroboration of those incidents. Each incident may thus inform an-other. The question … is whether, overall, propensity has been proved.
44. … the jury should be directed that, if they are to take propensity into account, they should be sure that it has been proved. This does not require that each individual item of evidence said to show propensity must be proved beyond reasonable doubt. It means that all the material touching on the issue should be considered with a view to reaching a conclusion as to whether they are sure that the existence of a propensity has been established."
I refer to the judgments above not to suggest that the approach set out in the criminal jurisdiction is to be imported, in an identical manner, into the fact-finding process in family proceedings in precisely the same way (plainly, they cannot be), but merely to demonstrate that which I consider to be an essentially self-obvious proposition i.e., that if propensity evidence is potentially admissible in criminal law proceedings, it would be entirely illogical to exclude it from consideration in investigative proceedings in the family court. Moreover, and with the greatest diffidence and respect for Wall J, the starting point for consideration of the relevance of such evidence should not be hampered or distorted by a presumption that such evidence is "unlikely" to be of assistance. It will depend on the facts of the individual case.
Propensity evidence is, primarily but not exclusively, a criminal law construct which, in simple terms, adopts the reasonable proposition that where an individual has been proved to have behaved in a particular way in the past, it is more likely that they might behave in that same way again. The evidential framework, governing admissibility of propensity evidence, in a criminal trial, predicated on the criminal standard of proof, is very different from that in an essentially investigative process in family proceedings. In the Family Court, the Judge will, invariably, be scrutinising a broad evidential landscape. Where the lodestar for the Court's approach is the paramountcy of the child's welfare, a very wide category of evidence will fall for consideration. This will include hearsay evidence, be it first or second hand, in documentary format or in oral evidence. It will also include expert opinion evidence. The standard of proof is, of course, the civil standard, requiring facts to be proved on the balance of probabilities. As Lord Brandon of Oakbrook said in The Popi M, Rhesa Shipping Co SA v Edmunds, Rhesa Shipping Co SA v Fenton Insurance Co Ltd [1985] 1 WLFR 948; 956, this is a test to "be applied with common sense". Lady Hale makes the same point in Re B (Children) (Care Proceedings: Standard of Proof) (CAFCASS intervening) [2008] UKHL 35;
"[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 sup-port 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."
All of this applies with equal rigour to the obligation upon the Judge to identify not only harm that may have been sustained by a child but the likely perpetrator of that harm. The exercise is a parallel one and, for the reasons that Lady Hale has identified in the passage above, the obligation on the Judge every bit as exacting. There will, inevitably, be cases where the identity of the perpetrator will be uncertain. Paradigmatically, injuries to a child occur in the hands of a parent or carer. Section 31(2) of the Children Act 1989 requires the court to focus not only on the significant harm sustained by the child but on its attributability. Inevitably, within the home environment, there are unlikely to be witnesses. The investigative process must track down ascertainable facts from the broadest canvas available and, where possible, draw such inferences as those facts will support. It is frequently a difficult task, but it is not one that can be shirked. The danger in failing to confront it is that an innocent individual may be tainted by a finding that has a direct impact, both on her and on the child. A finding which leaves a parent in a pool of potential perpetrators is likely to adversely influence the nature and extent of the contact arrangements or indeed, on where and with whom the child will live in the future. Of course, the imperative of child protection must not generate a reason to burden unsatisfactory evidence with a greater weight than it can legitimately support. That would create injustice to all, not least the subject children, but neither does it absolve the Judge of the responsibility to confront the findings that the evidence properly establishes. The same obligation for forensic rigour applies to the lawyers….
…. In CB and JB, Wall J was considering one facet of propensity evidence, namely, an identified pre-disposition to behave in a particular way, predicated on psychiatric or psychological assessment, as opposed to ascertainable facts or reasonable inferences. The danger inherent in such evidence is now entirely recognised. As Wall J made clear, this opinion evidence, might easily be both prejudicial and wrong. Moreover, it trespasses on the function of the Judge in the assessment of adult credibility as to the responsibility for a child's injuries. This is, of course, entirely different from evaluating propensity generated by evidence of established behaviour.’
I found this analysis fascinating and, I must say, I agree with his lordship; how can a Court ignore a parent’s propensity towards violence in the context of investigating how a child has been injured by one of their carers? His Lordship concluded that;
‘Paradigmatically, a squeezing injury to a baby's chest is an expression of parental frustration and loss of control. There is here an established pattern of F becoming violent and losing control. This is exacerbated with drug and alcohol consumption, which, as I have stated, the evidence establishes as being used in excess at the relevant time. Also, M and F were living in much more confined circumstances, arising from F's injury. Both, I note, had identified their respective needs for privacy and space. The changed situation compromised this. I have concluded that F was behaving, as M asserted in her application, violently and personally out of control. I emphasise that all these are ascertainable facts from which reasonable inferences can be drawn. They also establish a propensity for F to lose control, in an extreme way, and to become violent. By contrast, there is no such evidence relating to M's behaviour. Cumulatively, for the reasons that I have identified throughout this judgment, I consider the evidence points markedly towards F as most likely to have caused R's fractured fourth posterior rib. On the balance of probabilities, I find that he did.’
That brings to a close my seasonal update, obviously I hope this proves of some use to my readers, but if reading this was a complete waste of 20 minutes of your life, then…. sorry!
Wishing you all the very best for the new year.
Michael Jones KC is a barrister at Deans Court Chambers.
