Re M and R (Child Abuse: Evidence)

When determining under section 1(3)(e) of the Children Act 1989 whether a child has suffered, or risks suffering, harm, the court must decide disputed facts on the balance of probabilities. Suspicion that past abuse may have occurred cannot itself establish future risk. A real possibility of future harm may nevertheless be found from other proved, profoundly worrying features.

Under section 3 of the Civil Evidence Act 1972, relevant expert opinion within the witness’s expertise is not inadmissible merely because it addresses credibility or the ultimate issue. The judge retains responsibility for the decision and determines relevance and weight.

The local authority appealed against Connell J’s refusal, after a 15-day hearing, to make full care orders for four children. The judge found emotional abuse and neglect, made interim care orders and adjourned consideration of the children’s future placement. He was not satisfied on the balance of probabilities that allegations of sexual abuse had been proved.

The authority challenged that factual conclusion and argued that the judge should, at the welfare stage, have considered his finding that sexual abuse remained a real possibility. A further issue, concerning the admissibility of expert psychiatric opinion about abuse and credibility, was raised in writing but not pursued orally.

The central questions were whether the factual findings were plainly wrong, whether unproved past abuse could establish future risk under section 1(3)(e) of the Children Act 1989, and whether expert opinion on an ultimate issue was admissible under the Civil Evidence Act 1972.

Appeal dismissed unanimously. Butler-Sloss LJ delivered the judgment of the court, with Henry and Saville LJJ.

1. The trial judge’s finding that sexual abuse had not been proved was not plainly wrong. He had directed himself correctly, examined the evidence and alternative explanations, considered the expert evidence, and given reasons for his findings. An appellate court must not retry a child case on the papers or substitute its assessment of evidential weight. It intervenes where the judge misdirected himself, adopted an erroneous approach or principle, or reached a plainly wrong decision.

2. An application under section 31 of the Children Act 1989 involves a threshold stage followed, if the threshold is crossed, by a welfare stage governed by section 1. At the welfare stage, a dispute about whether a child has suffered, or risks suffering, harm under section 1(3)(e) must be resolved on the balance of probabilities. The court must act on proved facts rather than suspicion or doubt. The majority reasoning in Re H and R (Child Sexual Abuse: Standard of Proof) [1996] 1 FLR 80 applied equally to that inquiry.

3. Where past sexual abuse is unproved and is the only asserted foundation for future sexual risk, the mere possibility that it occurred cannot establish that risk. Risk means a real possibility of future harm, but the existence of that real possibility must itself be established on the balance of probabilities. A court may find future risk despite failure to prove past maltreatment where other proved, profoundly worrying features support that conclusion. Allowing suspicion to suffice would undermine parental protection, produce arbitrary differences between cases and create an unjustified distinction between public and private children proceedings.

4. Although the expert-evidence ground was not pursued, the court addressed the law because conflicting authorities were causing unnecessary litigation. Section 3 of the Civil Evidence Act 1972 abolished any exclusion founded solely on an expert’s opinion addressing an issue, including an ultimate issue or, where appropriate, credibility. The opinion must concern a relevant matter within the witness’s expertise. The ultimate decision remains exclusively for the judge, who assesses relevance and weight.

5. The contrary obiter remarks in Re S and B (Minors) (Child Abuse: Evidence) [1990] 2 FLR 489, Re FS (Child Abuse: Evidence) [1996] 2 FLR 158 and Re N (Child Abuse: Evidence) [1996] 2 FLR 214 had been made per incuriam. Relevant expert evidence is not inadmissible because it usurps the judge’s function. Evidence outside the expert’s expertise, or offering no assistance beyond ordinary evaluation, remains inadmissible as irrelevant. The modern approach generally regulates arguably relevant but unhelpful evidence through weight.

Leave to appeal to the House of Lords was refused.

1. Court of Appeal (Civil Division): The local authority’s appeal was dismissed. The refusal to make full care orders was left undisturbed, and leave to appeal to the House of Lords was refused.
2. High Court: Connell J refused full care orders after a 15-day hearing because sexual abuse was not proved. He found emotional abuse and neglect, made interim care orders, and adjourned consideration of whether the children should return to their mother and her partner.