T (Children), Re

The standard of proof in children proceedings is the balance of probabilities. The seriousness and inherent improbability of an allegation inform the assessment of the evidence but do not raise that standard to the criminal standard. Authorities concerning sex offender and antisocial behaviour orders do not alter that approach.

The judge must distinguish the medical expert’s advisory function from the judicial determination of the statutory threshold. Medical certainty or near-certainty is not required. The court must assess the medical and non-medical evidence together, examine explanations for the injuries, and consider each item’s relationship to the evidence as a whole. Changes in expert opinion must be assessed in light of the information available to the expert.

A local authority brought care proceedings concerning two children after the younger child, a little girl, was found to have a recent perineal tear and anal fissures. The children lived with their parents and, before the proceedings, their paternal uncle. The mother suggested that the perineal injury might have resulted from the child falling on a potty. No explanation was provided for the anal injuries.

Three consultant paediatricians gave evidence. One expert changed his opinion after receiving clearer and more complete photographs of the injuries. Judge Wade, sitting in Swindon County Court, found that the threshold under section 31 of the Children Act 1989 had not been established and dismissed the proceedings.

The local authority, supported by the children’s guardian, sought permission to appeal. The principal issues were whether the judge had applied the correct standard of proof, understood the final medical evidence, and assessed that evidence together with the family’s accounts and explanations.

1. Permission to appeal was granted and the appeal was allowed. The judgment of Dame Elizabeth Butler-Sloss P, with which Potter and Mummery LJJ agreed, identified three grounds requiring a rehearing. The Court of Appeal made no finding about whether sexual abuse had occurred or the weight ultimately to be attached to the evidence.

2. The applicable standard in proceedings under the Children Act 1989 was the balance of probabilities, as explained in Re H (Minors) (Sexual Abuse: Standard of Proof) [1996] AC 563. The seriousness and inherent improbability of an allegation affected the cogency of the evidence required to establish it, rather than raising the standard of proof. The subsequent authorities concerning sex offender and antisocial behaviour orders addressed a different statutory context. Their reasoning did not justify treating the civil and criminal standards as effectively interchangeable in public or private law children cases. Bodey J had applied an incorrect standard in Re ET (Serious Injuries: Standard of Proof) [2003] 2 FLR 1203 (paras 21–28).

3. Although the trial judge had correctly directed himself initially, he subsequently relied on a perceived requirement of certainty or near-certainty in the medical evidence. That confused the experts’ function of providing medical and scientific guidance with the judge’s function of determining the section 31 threshold. The distinction explained in Re B (Non-Accidental Injury) [2002] EWCA Civ 752 applied. The use of the wrong test was sufficient by itself to invalidate the decision (paras 29–30).

4. The judge had also misunderstood the final medical evidence. The changed opinion of one expert had to be assessed against the important additional photographic information he received. The evidence required re-evaluation with all experts having access to the relevant documents and photographs. The court also expressed doubt about discounting an experienced expert’s answer merely because it responded to a leading question (para 32).

   Further, the judge had failed adequately to examine the suggested explanation for the perineal tear and the absence of an explanation for the anal fissures. Evidence could not be evaluated in separate compartments. Each item had to be considered in relation to the others and within an assessment of the totality of the evidence (para 33).

5. As practical guidance, suitable local protocols should ensure that all clinical photographs reach every relevant expert when instructions to report are received. Failures of disclosure had prolonged the proceedings and prejudiced the children’s welfare, consistently with the concern about delay in section 1(2) of the Children Act 1989 (paras 35–37).

   The case was transferred to the High Court for rehearing, and interim care orders were made.

• Court of Appeal (Civil Division): In [2004] EWCA Civ 558 , granted permission to appeal, allowed the appeal, transferred the case to the High Court for rehearing and made interim care orders.
• Swindon County Court: On 24 November 2003, Judge Wade found that the section 31 threshold under the Children Act 1989 had not been met and dismissed the care proceedings concerning both children.