Tag Archives: balance of probabilities

What happens when a child gets hurt and we don’t know who did it?

In the light of concerns about the Ben Butler case in June 2016, this post by Sarah Phillimore attempts to explain the law that will apply in the family courts when a child has been hurt and there are a number of adults who could have done it – the so called ‘pool of perpetrators’.

If you want to know more about the practicalities of the court process from a parent’s perspective, please see this guest post by Suesspiciousminds  ‘The Social Worker tells me my child has been hurt’. 

There is often confusion expressed about why both criminal AND family cases can run together, based on the same concerns that a child has been hurt. In some cases, the criminal proceedings will stop or not even start and only the family case continues. This is because of the different roles and responsibilities of the criminal and family courts. Criminal courts, in essence, exist to identify criminals and punish them. As punishment can involve a deprivation of liberty by sending someone to prison, the standard of proof is high – ‘beyond reasonable doubt’.

Family cases however are about protecting children so the focus is different and the standard of proof is lower. There are many parents however who argue that it is simply wrong to make findings about children being injured and remove them from their families on the basis of that lower standard of proof. However, it will probably take an Act of Parliament to change this as Judges are now very clearly bound by decisions of the Supreme Court. 

 

The relevant law – general principles about establishing facts

The court should consider the following issues when it needs to make a finding about what happened in any particular case:

  • Articles 6 and 8 of the European Convention on Human Rights [ECHR] which means the court must respect the right to family life and the right to a fair trial.
  • A finding of fact by a Judge that someone hurt a child is a serious thing; therefore anyone at risk of such a finding being made against them must have a chance to be part of the court proceedings and be able to make their case. If someone is a vulnerable adult and needs help from, for e.g. an intermediary, this should be considered by everyone at an early stage
  • The ‘burden of proof’ lies on the person who makes the allegation, in this case the local authority. This means that it is not the adult’s responsibility to prove they did not hurt the child; the local authority must prove they did.

Burden and standard of proof in ‘binary’ system

  • The standard of proof is the ‘balance of probabilities’ – it must be more than 50% likely that something happened: see Re B (Care Proceedings: Standard of proof) [2008] UKHL 35. In the words of Baroness Hale at paragraph 70: “I…would announce loud and clear that that the standard of proof in finding the facts necessary to establish the threshold at s31 (2) or the welfare considerations at s1 of the 1989 Act is the simple balance of probabilities, neither more not less. Neither the seriousness of the allegations nor the seriousness of the consequences should make any difference to the standard of proof to be applied in determining the facts. The inherent probabilities are simply something to be taken into account, where relevant, in deciding where the truth lies”.
  • If a fact is to be proved the law operates a ‘binary system’ which means it is either true or it is not.
  • Findings of fact must be based on evidence not speculation. As Munby LJ (as he then was) observed in Re A (Fact Finding: Disputed findings) [2011] 1 FLR 1817 “it is an elementary position that findings of fact must be based on evidence, including inferences that can be properly drawn from evidence and not suspicion or speculation”.
  • The court’s task is to make findings based on an overall assessment of all the available evidence. In the words of Butler-Sloss P in Re T [2004] 2 FLR 838: “Evidence cannot be evaluated and assessed separately in separate compartments. A judge in these difficult cases must 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”.
  • If it is suggested that something is ‘very unlikely’ to have happened, that does not have an impact on the standard of proof. See BR (Proof of Facts) [2015] EWFC 41 (11 May 2015) where Jackson J commented at paras 3 and 4:
    The court takes account of any inherent probability or improbability of an event having occurred as part of a natural process of reasoning. But the fact that an event is a very common one does not lower the standard of probability to which it must be proved. Nor does the fact that an event is very uncommon raise the standard of proof that must be satisfied before it can be said to have occurred.
    Similarly, the frequency or infrequency with which an event generally occurs cannot divert attention from the question of whether it actually occurred. As Mr Rowley QC and Ms Bannon felicitously observed:
    “Improbable events occur all the time. Probability itself is a weak prognosticator of occurrence in any given case. Unlikely, even highly unlikely things, do happen. Somebody wins the lottery most weeks; children are struck by lightning. The individual probability of any given person enjoying or suffering either fate is extremely low.”
    I agree. It is exceptionally unusual for a baby to sustain so many fractures, but this baby did. The inherent improbability of a devoted parent inflicting such widespread, serious injuries is high, but then so is the inherent improbability of this being the first example of an as yet undiscovered medical condition. Clearly, in this and every case, the answer is not to be found in the inherent probabilities but in the evidence, and it is when analysing the evidence that the court takes account of the probabilities.

What happens if a witness lies about something?

  • An important part of the assessment is what the court thinks about the reliability of the adult’s evidence. The court will be worried if someone is found to have lied about something, but that does not necessarily mean that person has lied about everything. The court will keep in mind the warning in R v Lucas [1981] QB 720 that “if a court concludes that a witness has lied about a matter, it does not follow that he has lied about everything. A witness may lie for many reasons, for example out of shame, humiliation, misplaced loyalty, panic, fear, distress, confusion and emotional pressure”.

Expert witnesses

  • With regard to evidence provided by expert witnesses, the court should consider the following:
    • First, whilst it may be appropriate to attach great weight to clear and persuasive expert evidence it is important to remember that the roles of the court and expert are distinct and that it is the court that is in the position to weigh the expert evidence against the other evidence: see, for example, Baker J in Re J-S (A Minor) [2012] EWHC 1370.
    • Secondly, the court should always remember that today’s medical certainty may be disregarded by the next generation of experts. As Hedley J observed in Re R (Care Proceedings Causation) [2011] EWHC 1715 “there has to be factored into every case…a consideration as to whether the cause is unknown”.

Particular considerations in a case when a child has suffered injury

The court will consider the decision of the Supreme Court in in Re S-B (children) (non-accidental injury) [2009] UKSC 17.

Was the injury an accident?

  • If the court is satisfied that the child sustained injuries, the first question is whether they were caused ‘non accidentally’.
  • The court is reminded of the comments of Ryder LJ about the expression “non-accidental injury” in S (A Child) [2014] EWCA Civ 25:-I make no criticism of its use but it is a ‘catch-all’ for everything that is not an accident. It is also a tautology: the true distinction is between an accident which is unexpected and unintentional and an injury which involves an element of wrong. That element of wrong may involve a lack of care and/or an intent of a greater or lesser degree that may amount to negligence, recklessness or deliberate infliction. While an analysis of that kind may be helpful to distinguish deliberate infliction from say negligence, it is unnecessary in any consideration of whether the threshold criteria are satisfied because what the statute requires is something different namely, findings of fact that at least satisfy the significant harm, attributability and objective standard of care elements of section 31(2).
  • For an example of an injury deemed accidental, see EF (a child), Re [2016] EWFC B107 (15 September 2016) the court accepted the parents’ account and thus the LA had not made out its case.

If it wasn’t an accident – who did it?

  • Having established the injury was not an accident, attention turns to whether or not the court can say who caused the injury. The ‘threshold criteria’ (what the court needs to find proved in order to make a care order) can be established by findings that a child has suffered harm whilst in the care of his parents, or other carers, without the need to establish precisely who caused the injuries. Nevertheless, where possible, it is clearly a good idea to identify who has caused the injuries:
    • to be as clear as possible about future risks to the child and how to deal with those risks.
    • The child has a right to know what happened to him, if it is possible to find out.

How hard should the court try to find out who did it?

  • However, the court should not ‘strain unnecessarily’ to identify who hurt the child. If the evidence does not support a specific finding against an individual(s) the court should attempt to identify the ‘pool’ of possible perpetrators. See Lancashire CC v B [2000] 2 AC 147 and North Yorkshire CC v SA [2003] 2 FLR 849.
    • The identification of a pool of possible perpetrators is sometimes necessary in order to determine if the child’s parents or carers are to blame for the harm suffered by the child. If the child was hurt by someone outside the home or family – for example by someone at school or at hospital – then it would usually be unfair to say that this is the parent’s/carer’s fault.
    • In considering whether a particular individual should be within the pool of possible perpetrators the test is whether there is a real possibility that he or she was involved.
    • If the court identifies a pool of possible perpetrators the court should be wary about expressing any view as to the percentage likelihood of each or any of those persons being the actual perpetrator. (In the words of Thorpe LJ: “Better to leave it thus”).

What happens in the future if a parent is found to be in the ‘pool of perpetrators?’

As a parent, this could have a serious impact on your current or future family life. You may find that you need to submit to a risk assessment from the local authority if you want to care for your children.

However, if you become involved in care proceedings in the future, the court is clear that a previous finding that you were ‘in the pool’ can NOT be treated as simply ‘proof’ that you hurt a child and it cannot be used in this way as part of any threshold document to assert that your current children are at risk.

However, the fact that a parent was part of a household where a child suffered injury, cannot just be ignored and will need to form part of a careful assessment of current circumstances.

See In the matter of J (Children) [2013] SC 9 – the judgment of Lady Hale at para 52:

52. It is, of course, a fact that a previous child has been injured or even killed while in the same household as this parent. No-one has ever suggested that that fact should be ignored. Such a fact normally comes associated with innumerable other facts which may be relevant to the prediction of future harm to another child. How many injuries were there? When and how were they caused? On how many occasions were they inflicted? How obvious will they have been? Was the child in pain or unable to use his limbs? Would any ordinary parent have noticed this? Was there a delay in seeking medical attention? Was there concealment from or active deception of the authorities? What do those facts tell us about the child care capacities of the parent with whom we are concerned?

53. Then, of course, those facts must be set alongside other facts. What were the household circumstances at the time? Did drink and/or drugs feature? Was there violence between the adults? How have things changed since? Has this parent left the old relationship? Has she entered a new one? Is it different? What does this combination of facts tell us about the likelihood of harm to any of the individual children with whom the court is now concerned? Does what happened several years ago to a tiny baby in very different circumstances enable us to predict the likelihood of significant harm to much older children in a completely new household?

54. Hence I agree entirely with McFarlane LJ when he said that In re S-B is not authority for the proposition that “if you cannot identify the past perpetrator, you cannot establish future likelihood” (para 111). There may, or may not, be a multitude of established facts from which such a likelihood can be established. There is no substitute for a careful, individualised assessment of where those facts take one. But In re S-B is authority for the proposition that a real possibility that this parent has harmed a child in the past is not, by itself, sufficient to establish the likelihood that she will cause harm to another child in the future.

Fact Finding in Care Proceedings

What is meant by a ‘fact finding hearing’ ? What does the Judge have to do? What needs to be proved? This post appears at the Children In Law website, curated by barrister Jacqui Gilliat. This summary of the law relating to fact finding hearings was written DJ Simmonds at the Central Family Court in London, in collaboration with HHJ Hess. 

 

The law relevant to fact finding hearings in care proceedings can be summarised as follows.

I should have in the forefront of my mind the provisions of Articles 6 and 8 of the ECHR. In particular it is important that I ensure that any person who might be affected adversely by my judgment, for example by being in the pool of possible perpetrators, has had the opportunity to be represented within the proceedings and been able to put their case.

The fact finding decisions need to be made in the context of the provisions of Section 31(2) Children Act 1989, the “threshold criteria”. This section reads:-

A court may only make a care order or supervision order if it is satisfied –

that the child concerned is suffering, or is likely to suffer, significant harm; and that the harm, or likelihood of harm, is attributable to …the care given to the child, or likely to be given to him if the order were not made, not being what it would be reasonable to expect a parent to give to him.

 Harm” is defined in Section 31(9) as meaning “ill-treatment or the impairment of health or development”.

The relevant date for assessing whether the child “is suffering” harm is the date of the care order application or, if temporary protective arrangements have been continuously in place from an earlier date, the date when the arrangements were initiated. In cases where the “is suffering” limb of the test is engaged (as in the present case) it is not enough that the court suspects that a child may have suffered significant harm or that there was a real possibility that he did, the court must be satisfied that the child was actually harmed: Re M (A Minor) (Care Order: Threshold Conditions) [1994] 2 FLR 577.

Burden and Standard of Proof

The burden of proof lies on the party who makes the allegation, in this case the local authority.

The standard of proof is the balance of probabilities: see Re B (Care Proceedings: Standard of proof) [2008] UKHL 35. In the words of Baroness Hale at paragraph 70: “I…would announce loud and clear that that the standard of proof in finding the facts necessary to establish the threshold at s31 (2) or the welfare considerations at s1 of the 1989 Act is the simple balance of probabilities, neither more not less. Neither the seriousness of the allegations nor the seriousness of the consequences should make any difference to the standard of proof to be applied in determining the facts. The inherent probabilities are simply something to be taken into account, where relevant, in deciding where the truth lies”.

Binary system – it either happened or it did not happen

If a fact is to be proved the law operates a binary system. It is open to the Court to find on the balance of probabilities either that an allegation is true or that an allegation is false. As Lord Hoffman observed in Re B (supra) : “if a legal rule requires the facts to be proved a judge must decide whether or not it happened. There is no room for a finding that it might have happened; the law operates a binary system in which the only values are nought and one”.

 

Evidence not speculation

Findings of fact must be based on evidence not speculation. As Munby LJ (as he then was) observed in Re A (Fact Finding: Disputed findings) [2011] 1 FLR 1817 “it is an elementary position that findings of fact must be based on evidence, including inferences that can be properly drawn from evidence and not suspicion or speculation”. The court’s task is to make findings based on an overall assessment of all the available evidence. In the words of Butler-Sloss P in Re T [2004] 2 FLR 838: “Evidence cannot be evaluated and assessed separately in separate compartments. A judge in these difficult cases must 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”.

One part of the assessment is an analysis of the credibility and reliability of the witnesses and potential perpetrators. I need to remind myself, though, of the important warning to be derived from R v Lucas [1981] QB 720 that “if a court concludes that a witness has lied about a matter, it does not follow that he has lied about everything. A witness may lie for many reasons, for example out of shame, humiliation, misplaced loyalty, panic, fear, distress, confusion and emotional pressure”.

Expert Evidence

Where, as here, an important part of the evidence is provided by expert witnesses I need to remind myself of two propositions in weighing the importance of that evidence. First, whilst it may be appropriate to attach great weight to clear and persuasive expert evidence it is important to remember that the roles of the court and expert are distinct and that it is ultimately the court that is in the position to weigh the expert evidence against the other evidence: see, for example, Baker J in Re J-S (A Minor) [2012] EWHC 1370. Secondly, the court should always remember that today’s medical certainty may be disregarded by the next generation of experts and that scientific research may one day throw light into corners that are at present dark. There may be cases where criticism of even a clear expert opinion is more than fanciful. The case of LB of Islington v Al Alas and Wray [2012] EWHC 865 (Fam) is a useful cautionary tale in this respect. As Hedley J observed in Re R (Care Proceedings Causation) [2011] EWHC 1715 “there has to be factored into every case…a consideration as to whether the cause is unknown”.

 

When a child has suffered injury

In structuring my analysis in this fact finding hearing I remind myself of the Supreme Court decision in Re S-B (children) (non-accidental injury) [2009] UKSC 17. This decision informs the structure of the analysis, broadly encouraging the route set out below.

 If I am satisfied that the child sustained injuries I must first consider whether they were caused non-accidentally. In this context I remind myself of the comments of Ryder LJ about the expression “non-accidental injury” in S (A Child) [2014] EWCA Civ 25:-

 I make no criticism of its use but it is a ‘catch-all’ for everything that is not an accident. It is also a tautology: the true distinction is between an accident which is unexpected and unintentional and an injury which involves an element of wrong. That element of wrong may involve a lack of care and/or an intent of a greater or lesser degree that may amount to negligence, recklessness or deliberate infliction. While an analysis of that kind may be helpful to distinguish deliberate infliction from say negligence, it is unnecessary in any consideration of whether the threshold criteria are satisfied because what the statute requires is something different namely, findings of fact that at least satisfy the significant harm, attributability and objective standard of care elements of section 31(2).

Secondly, I must next consider whether I can identify the perpetrator of the injuries. A Court should not strain to identify the perpetrator, but to do so should promote clarity in identifying future risks to the child and the strategies necessary to protect the child from them and there should be long-term benefits for the child in knowing the truth if it can be ascertained. Plainly, the threshold criteria can be established by findings that a child has suffered harm whilst in the care of his parents, or other carers, without the need to establish precisely who caused the injuries. Nevertheless, where possible, and for the consideration of a child’s welfare, it is desirable to identify who has and who has not caused the injuries.

Thirdly, if I cannot identify a perpetrator or perpetrators, I should attempt to identify the pool of possible perpetrators. In this context I remind myself of the decisions in Lancashire CC v B [2000] 2 AC 147 and North Yorkshire CC v SA [2003] 2 FLR 849. The identification of a pool of possible perpetrators is sometimes necessary in order to fulfil the ‘attributability’ criterion – for example if the harm has been caused by someone outside the home or family, for example at school or in hospital or by a stranger, then it is not attributable to the parental care unless it would have been reasonable to expect a parent to have prevented it. It is also generally desirable to identify a pool of perpetrators because it will help to identify the real risks to the child and the steps needed to protect him, it will help the professionals in working with the family and it will be of value to the child in the long run. In considering whether a particular individual should be within the pool of possible perpetrators the test is not whether that individual can be excluded as a perpetrator, but whether there is a real possibility that he or she was involved. An individual should not be expected to prove his or her innocence beyond reasonable doubt.

Fourthly, if I identify a pool of possible perpetrators which, ex hypothesi, will include more than one person, I should be cautious about expressing a view as to the percentage likelihood of each or any of those persons being the actual perpetrator. In the words of Thorpe LJ: “Better to leave it thus”.

 

Achieving best evidence and use in Children Act cases

This post began life as a paper delivered by Sarah Phillimore at the St John’s Chambers conference on 4th December 2014: ‘Family Justice: universal access and fair process’. It has been updated to take into account more recent case law; most particularly the case of A (A Child) [2015] and Re BR (Proof of Facts) [2015]. No doubt the updating process will continue in light of our continued and collective inability to get to grips with this most essential issue. 

With thanks to Dr Harrington for the introduction to Sapir/Whorf

 

‘We have a system that places the proof of facts at the centre of care proceedings’

Baker J November 2013

Overview

  • The importance of good evidence
  • The consequences if we get it wrong
  • How can we do it better?

 

Why is evidence so important?

Mr Justice Baker addressed a family law conference in 2013 asking the question – how can we improve decision making in the family courts? He identified the twin evils of delay and cost which impact on the quality of decisions made. He commented on the alternatives to litigation, such as mediation or arbitration that might work to mitigate those evils. But he was also clear that alternatives to litigation could never be complete substitutes for litigation. There will always be a proportion of cases that will require the court to intervene.

He said this:

But there will always be a substantial number of disputes in which a forensic process is unavoidable, a process that involves consideration of allegations and cross-allegations made by the parties, a judicial analysis of the evidence, the makings of findings and an assessment of the consequences of those findings. There are some people who genuinely believe this can be done by some sort of committee without involving lawyers at all. Such views are profoundly mistaken.

Children cases are not fully adversarial because the court retains ultimate control of what is and is not litigated. The level of this control will vary. But fundamentally we have a system which puts proof of facts at its heart.

 

What do we mean by proof of facts in a court?

See Re BR (proof of facts) [2015]

Mr Justice Jackson commented:

It is exceptionally unusual for a baby to sustain so many fractures, but this baby did. The inherent improbability of a devoted parent inflicting such widespread, serious injuries is high, but then so is the inherent improbability of this being the first example of an as yet undiscovered medical condition. Clearly, in this and every case, the answer is not to be found in the inherent probabilities but in the evidence…

He set out some general principles:

  • The court acts on evidence, not speculation or assumption. It acts on facts, not worries or concerns. Evidence comes in many forms. It can be live, written, direct, hearsay, electronic, photographic, circumstantial, factual, or by way of expert opinion. It can concern major topics and small details, things that are important and things that are trivial.
  • The burden of proving a fact rests on the person who asserts it.
  • The standard of proof is the balance of probabilities: Is it more likely than not that the event occurred?
  • Neither the seriousness of the allegation, nor the seriousness of the consequences, nor the inherent probabilities alters the standard of proof required. Where an allegation is a serious one, there is no requirement that the evidence must be of a special quality. The court will consider grave allegations with proper care, but evidence is evidence and the approach to analysing it remains the same in every case.
  • Nor does the seriousness of the consequences of a finding of fact affect the standard to which it must be proved. The court takes account of any inherent probability or improbability of an event having occurred as part of a natural process of reasoning. But the fact that an event is a very common one does not lower the standard of probability to which it must be proved. Nor does the fact that an event is very uncommon raise the standard of proof that must be satisfied before it can be said to have occurred. Similarly, the frequency or infrequency with which an event generally occurs cannot divert attention from the question of whether it actually occurred. “Improbable events occur all the time. Probability itself is a weak prognosticator of occurrence in any given case. Unlikely, even highly unlikely things, do happen. Somebody wins the lottery most weeks; children are struck by lightning. The individual probability of any given person enjoying or suffering either fate is extremely low.”
  • Each piece of evidence must be considered in the context of the whole. The medical evidence is important, and the court must assess it carefully, but it is not the only evidence. The evidence of the parents is of the utmost importance and the court must form a clear view of their reliability and credibility.

What happens when we get it wrong?

A tottering edifice built on inadequate foundations…

Baker J said further:

It goes without saying that this process depends crucially on the skill and experience of a range of professionals – social workers, police, guardians, doctors, psychologists, lawyers and advocates. The judge is dependent on those professionals in coming to the right decision. In the end, judges can only decide the cases that are put before them.

 That last sentence is the crucial one and explains the court’s rage when they are faced with poor quality evidence and asked to make such serious decisions as whether or not a child should be adopted. No doubt the words of the President of the Family Division continue to ring in our ears from Re B-S (Children) [2013] EWCA 1146 at paras 39 and 40:

Most experienced family judges will unhappily have had too much exposure to material as anodyne and inadequate as that described here by Ryder LJ.

This sloppy practice must stop. It is simply unacceptable in a forensic context where the issues are so grave and the stakes, for both child and parent, so high.

When evidence is poor the risks are not simply just a stern dressing down from a senior judge but that the court is deprived of the evidence it needs to make the best decision for the child.

And it’s not just a burden on the lawyers who gather and present the evidence; the burden is also upon the Judge to carefully analyse the evidence, particularly in a finely balanced case.

See for example Re B (Children: Long Term Foster Care) [2014] when the Court of Appeal found that the Judge had not sufficiently analysed the evidence before him and in such a finely balanced case, he should have carried out “a detailed and critical review of the evidence, old and new, with each step of the way meticulously charted in the judgment.”  

 

Worst of all – lying in court by professionals

Or worse than all of this – when professionals lie on oath in court. The Judge commented that this case was ‘exceptional’, and I hope he is right about that. See this post by Suesspiciousminds for consideration of the case involving Hampshire CC.

 

So how can we do it better?

Active thought at the outset of a case about its evidential basis

I will examine some general propositions which hopefully will apply to any case. Particular groups of vulnerable witnesses, such as children, may have other quite specific needs and the interviewing/evidence gathering process will need further adjustment to make sure that these needs are taken into account and unfairness avoided.

There are three useful sources that highlight issues for us to consider:

  • Achieving Best Evidence guidance
  • Case law
  • Linguistic theory

From these sources we can derive the following general principles:

  • Watch out for the language you use;
  • Allegations which are denied or not proven are NOT ‘facts’
  • Test your hypothesis, don’t seek to confirm it
  • Distinguish ‘fact’ from the ‘processing of facts’
  • Be clear about what ‘facts’ are being challenged.

 

Watch out for the language you use

Allegations which are denied or not proven are NOT facts

I will examine these two principles together because they are closely inter-related. The language you chose to discuss the evidence can have a very powerful effect on how you think about that evidence and how you go on to treat it. You may also have a different understanding of the words you use than others do and can end up talking at cross purposes.

For example:

  •  if a child makes an allegation of sexual abuse there is a tendency to call this a ‘disclosure’. Disclosure means what it says – a secret fact that is made known. So you have assumed the truth of what is said at the outset. This can be very dangerous.
  • If you say you have ‘refuted’ an allegation, I understand that to mean that you have provided proof that the allegation is wrong. But many others would simply hear that you ‘disagree’ with an allegation
  • Use of the word ‘paedophile’ to describe a man who is attracted to girls aged 14-16 and the emotional reactions that word triggers.

Theories about linguistics can shine more light upon this.

The Sapir Whorf Hypothesis

Edward Sapir was an American anthropologist-linguist, who was born in Poland in 1884 and is widely-considered to be one of the most important figures in the early development of the discipline of linguistics. Benjamin Whorf was his student. To refer to a ‘hypothesis’ is a misnomer because the two never co-authored anything, and never stated their ideas in terms of a hypothesis. But their work has continued to intrigue many.

What people have taken from their work is the two concepts of linguistic relativity and linguistic determinism. i.e.:

  • that meaningful and distinct concepts in one language system are not necessary encoded in the same way or even at all when compared to another language system; and
  • speakers of a language are acculturated into particular ways of seeing the world and manipulated into it by the systems that are in place.

As Dr Kate Harrington of Exeter University says:

The words used to describe a reality can have a significant effect on how others perceive and categorise that reality. When this happens in a legal context then such language can have a serious impact on legal outcome.

There is also some very interesting research from a Yale Law School professor, Dan Kahan who wrote a research papers called Motivated Numeracy and Enlightened Self Government’ in 2013. This examined the impact of political passion on people’s ability to think clearly.

I haven’t read the paper in full, but an article by Marty Kaplan of Alternet provides an interesting window into its conclusions:

partisanship “can even undermine our very basic reasoning skills…. [People] who are otherwise very good at math may totally flunk a problem that they would otherwise probably be able to solve, simply because giving the right answer goes against their political beliefs.”

In other words, say goodnight to the dream that education, journalism, scientific evidence, media literacy or reason can provide the tools and information that people need in order to make good decisions.

It turns out that in the public realm, a lack of information isn’t the real problem. The hurdle is how our minds work, no matter how smart we think we are. We want to believe we’re rational, but reason turns out to be the ex post facto way we rationalize what our emotions already want to believe

Therefore, it appears that given the influences that may be operating upon us without our full awareness, the best approach to any allegation from any source, is to treat it seriously and with respect BUT to try to avoid making firm assumptions about its strength or weakness – until of course you have had an opportunity to look at a wide range of evidence that both goes to support or challenge any particularly theory of the case.

Examples where this goes wrong in practice

I have unfortunately had experience of a great number of cases where achieving the best decision for the children was significantly delayed – or even utterly thwarted – by a failure to abide by these principles.

A particularly horrible example is D v B and others (flawed sexual abuse enquiry) [2006] EWHC 2987 (Fam). It is worth reading in full. For further useful commentary on the use of ‘veracity experts’, see this post by suespcioussminds.

The Judge in D v B commented on the development of the case in this way:

Thereafter, the therapist formed the view that the allegations that the father had abused EB were true and fed that belief into the social care system in Surrey. A social worker in Surrey was influenced by the therapist and accepted her view. Groups of professionals met in Surrey and debated wide issues about their beliefs about the allegations, some believing them, some not. There was discussion about a number of issues, which were simply floated without resolution… Information was kept from the father lest it should interfere with EB’s therapy…

The County court judge dealing with the matter in the beginning…however found ‘mother’s account of events truly extraordinary, well exceeding his comprehensive fifteen years experience’. The Judge hence directed further investigations and advises the father to upgrade his contact application to a fully-fledged residence application…The former social worker applied censorship and imposed non-disclosure of minutes of some professionals meeting by means of solicitor instructions. The reasoning given was that it ‘could compromise working relationship with mother’.

There then developed two systems running in opposition. The court in Taunton made orders requiring the mother to make TD available for contact. Orders were backed with penal notices directed at the mother. The NSPCC and the social worker in Surrey gave support to the mother on the basis that the allegations were true. The case was not returned to the court for a fact finding hearing. The opposing systems continued to run in counter-measure.

The Judge further commented:

I have read (and re-read) the relevant passages from the Cleveland report (pages 204 to 214) and the Orkney reports (pages 272, para 15.21 to 275, para 15.32) during the currency of my involvement in these proceedings. I am very well acquainted with the document called ‘Achieving Best Evidence’, which is an everyday working tool for those who practice within the family justice system…I find it very difficult to understand how the history that has emerged reflects that acquired learning.

 

 A (A Child) v Darlington Borough Council [2015]

Another horrible example of failure to get to grips with what are or are not ‘facts’ can be found in the case of A (A Child) in 2015 where the President of the Family Division did not hold back on fierce criticism of the LA handling of care proceedings. See for example paragraph 28 but the entire judgment should be read in full:

First, there was very little analysis, let alone any very rigorous analysis, of the factual underpinning of the local authority’s case. The truth is that the local authority’s case was a tottering edifice built on inadequate foundations.

The President identified 3 fundamental principles at paragraph 8 onwards of his judgment.  Failure to abide by these will have serious implications for the successful pursuit of an application in court

    • Facts must be drawn from evidence, not suspicion or speculation; LA must provide proper evidence, direct whenever possible and LA must not confuse the distinction between asserting a fact and the evidence needed to prove it
    • Facts must be linked to the case on threshold; WHY do these facts go to prove significant harm or risk of it?
    • Society must be willing to tolerate diverse standards of parenting… it is not the provenance of the state to spare children all the consequences of defective parenting… (Hedley J re L [2007] 1 FLR 2050 para 50)

An interesting aside: Sir Mark Hedley addressed the conference ‘Is the Child Protection System Fit for Purpose’  on 1st June 2015 and opined that whenever judges saw counsel citing this famous dictum ‘it was because they knew they were going to lose’ – I am not so sure he is right about this with the President’s continued endorsement.

It is depressing, to say the least that 9 years divides the two authorities cited above – yet it appears no ‘lessons have been learned’ about how NOT to conduct care proceedings.

See further the case of Re J (a Child) [2015] EWCA 222 where the Court of Appeal endorsed the President’s judgment in A (A Child).  It was held that it was ‘impossible’ to detect the process of analysis by the Judge, the threshold criteria contained very little by way of ‘fact’ but made very general observations which no one analysed to show the link between these generalities and the risk of significant harm.

 At the beginning – test your hypothesis, don’t seek to confirm it

This is useful guidance from Achieving Best Evidence. Good interviews don’t seek to ask questions to confirm an existing hypothesis but rather test it. Good interviews also encourage free narrative so that there is less risk of the interviewer imposing his or her own assumptions – which can be particularly dangerous when you are interviewing a child.

If you start to gather evidence operating from one perspective, its inevitably going to impact on the course of that process. Its probably inevitable that we will form a theory of a case at an early stage but be wary of allowing your theory to harden into fact without proper investigation and analysis.

For example, the police appear to now recognise the danger of proceeding with investigations on the basis that they ‘believe’ the complainant after many high profile investigations into historic child sex abuse allegations hit the buffers.

 

We need to distinguish between fact and the processing of facts.

We can also get some useful guidance from the courts. One such helpful overview is the case of P (A Child) [2013] EWCA Civ 963. This was a case that went wrong. A father appealed against the making of care and placement orders and the refusal to further assess him. The LA’s concerns were not about either parents ability to provide physical care for their child but rather the impact of issues around violence and conflict in the relationship.

The father complained that:

  • The LA assessment was so flawed to be unreliable
  • The nature of the father’s aggression was not reliably established
  • The judge had overstated the nature of the aggression

 

The Court of Appeal unanimously allowed the appeal and gave general comments about the need for active though at the outset of a case about its factual and evidential basis. These are set out from paragraph 112 of the judgment. The court stresses that these are not rules, but they are certainly useful guidance.

As the court considered:

Care cases involve “professional evaluation, assessment, analysis and opinion” brought to bear on facts. As the President said we need to distinguish clearly between what is fact and what falls into the other category…the processing of facts. The assessment and opinions of …professionals will only hold water if the facts upon which they proceed are properly identified and turn out actually to be facts’.

 

Be clear about what ‘facts’ are being challenged

This is another way the waters can get muddied quite quickly. If a parent says ‘I don’t accept that assessment’ we need to be clear exactly what they are objecting to. Are there mistakes about dates and times? Or is this a fundamental disagreement with the assessment’s conclusions? If so, what is the basis for this disagreement?

The PLO aims to assist with this process in care proceedings by creating different categories of LA material:

  • Evidential documents which are served with the application form; and
  • Decision making records which are only disclosed on request

Further, the early case management hearing should identify key issues and the evidence required to resolve those key issues. Its obviously essential that proper consideration is given to what alleged facts are actually relevant to a decision and which of those alleged facts are in dispute.

 

Further Cases

 

Further reading

What do we mean by proving something ‘on the balance of probabilities’ ?

‘The balance of probabilities’ is the standard of proof used in all civil court proceedings, so includes care proceedings.

The other standard of proof we use in criminal cases is ‘beyond a reasonable doubt’ which is a higher standard due to the very serious consequences that can follow a criminal conviction. Some people are unhappy that the lower civil standard of proof is used to make findings about parents who may have their children taken into care, particularly if the court is worried about significant harm happening in the future.

We agree that if the State takes your child away, that is a very serious and significant interference in the family life of both parent and child. However, the consequences for children of being left in situations that harm them are also very serious and we need to consider that if we used ‘beyond reasonable doubt’ as the standard of proof in family proceedings, this could lead to many children being left in dangerous or abusive situations because we could not always prove they were at risk using such a high standard of proof, or it may take much longer to find and gather together the evidence to have a court hearing.

So, in care proceedings, the Judge has to be satisfied that the evidence to show that your child is suffering or is at risk of suffering significant harm has been proved on the balance of probabilities. This phrase has been explained to mean ‘more likely than not, or ‘ ‘more than 50/50’.

For a while, the courts did approach the standard of proof for serious allegations in  family cases as being similar to the standard in criminal cases, as it was felt that such serious allegations with such serious consequences required a high level of proof.

The courts however from 2004 onwards decided to move away from this approach and confirmed it by a decision in the House of Lords in 2008  (The House of Lords is now called the Supreme Court).

Baronness Hale said at paragraph 69 of her judgment:

There are some proceedings, though civil in form, whose nature is such that it is appropriate to apply the criminal standard of proof. Divorce proceedings in the olden days of the matrimonial “offence” may have been another example (see Bater v Bater [1951] P 35). But care proceedings are not of that nature. They are not there to punish or to deter anyone. The consequences of breaking a care order are not penal. Care proceedings are there to protect a child from harm. The consequences for the child of getting it wrong are equally serious either way.

Baronness Hale stated ‘loud and clear’ that the standard of proof in care proceedings is the simple balance of probabilities, neither more nor less.

Neither the seriousness of the allegation nor the seriousness of the consequences should make any difference to the standard of proof to be applied in determining the facts. The inherent probabilities are simply something to be taken into account, where relevant, in deciding where the truth lies. […] It may be unlikely that any person looking after a baby would take him by the wrist and swing him against the wall, causing multiple fractures and other injuries. But once the evidence is clear that that is indeed what has happened to the child, it ceases to be improbable. Some-one looking after the child at the relevant time must have done it. The inherent improbability of the event has no relevance to deciding who that was. The simple balance of probabilities test should be applied.

Baker J discussed the issue of the burden and standard of proof in 2013:

In English law, the House of Lords has now concluded definitively that in order to determine whether an event has happened it has to be proved by the person making the allegation on the simple balance of probabilities. Where the law establishes a threshold based on likelihood, for example that a child is likely to suffer significant harm as a result of the care he or she would be likely to receive not being what it would be reasonable for a parent to give, the House of Lords has also concluded that such a likelihood, meaning a real possibility, can only be established on the basis of established facts proved on a balance of probabilities.

There are those who considered that to require the proof of past harm was a misreading of the intention of Parliament, and that a system devoted to child protection should not imposed such a high hurdle. It was argued, and in some quarters is still argued, that since we would not insist on proof before protecting our own children from risk, we should adopt the same cautious approach when protecting other, more vulnerable children. The House of Lords has of course firmly rejected that approach, which of course would at one extreme involve removing children from their parents on the basis of mere suspicion.

Further Reading

  • There is an interesting article about the importance of ‘beyond reasonable doubt’ by BarristerBlogger;
  • Here is a useful  article by Simon Goddard which discusses in more detail the standard of proof generally, and with particular reference to cases involving suspected non – accidental injury.
  • We discuss how to get the best evidence to make the right decisions for children in our post ‘Achieving Best Evidence in Children Act cases’.
  • There is concern that the ‘balance of probabilities’ standard is structurally unfair – can a ‘fact’ really be found on 51% certainty? See this article from The Justice Gap, commenting on the tragic case of Poppi Worthington.