A-S (Children), Re

In care proceedings, allegations of sexual abuse are determined on the civil standard of proof, not the criminal standard. A trial judge who sees and hears the witnesses is best placed to assess credibility. An appellate court will not interfere with such findings unless the judge has plainly gone wrong. Evidence that is immaterial to whether past abuse occurred may nevertheless be highly relevant at the separate stage of assessing the risk posed to children. Civil proceedings may also involve a broader assessment of similarities between accounts than is appropriate in a criminal jury trial.

The father applied for permission to appeal against findings made by Mrs Justice Bracewell in care proceedings. The judge had found that he sexually abused two step-daughters and had not found a further allegation proved because the relevant evidence had not been tested. He complained that the judge had failed to consider transcripts, an NSPCC risk assessment, a video, medical and educational reports, and alleged deficiencies in his representation. He also relied on article 6 of the European Convention on Human Rights and on the acquittals in the earlier criminal proceedings. The central issues were whether the hearing had been fair, whether the evidence had been properly assessed, and whether the factual findings could be challenged on appeal.

1. Application dismissed. There was no realistic prospect of successfully challenging the findings, and the application was also substantially out of time.
2. The proceedings concerned civil rights and obligations. Article 6(1) of the European Convention on Human Rights governed the fairness of the hearing, and its requirements had been satisfied. Article 6(3), which was directed to criminal charges, did not govern the care proceedings.
3. The criminal acquittals did not determine the civil proceedings. The civil court applied the civil burden of proof, correctly identified by reference to Re H and R [1996] AC 563. The judge was entitled to assess the witnesses, weigh inconsistencies and retractions, and reach findings on the evidence.
4. The NSPCC report was not material to deciding whether the historical allegations were true or false, because it could not determine that issue. It was, however, highly material to the subsequent assessment of the risk posed to the three younger children. The video fell into the same category: it could assist in assessing the father’s relationship with those children, but did not prove whether the alleged abuse had occurred.
5. The civil judge was entitled to take a broader view of the evidence and consider similarities between the accounts. The criminal judge’s direction that each complaint be considered separately was appropriate to the criminal trial but did not restrict the civil fact-finding exercise.
6. Findings based substantially on the trial judge’s assessment of witnesses are not ordinarily disturbed on appeal. Intervention requires a clear showing that the judge abused the advantage of seeing and hearing the witnesses, or went plainly and wildly wrong. That threshold was not met.

• Court of Appeal (Civil Division): the father sought permission to appeal from findings made by Mrs Justice Bracewell on 9 October 2001 in the High Court, Family Division. The applications were dismissed.
• Crown Court: the father had earlier been acquitted of the criminal charges, but that outcome did not govern the civil care proceedings.