D v B & Ors

In fact-finding proceedings concerning alleged sexual abuse, the civil balance of probabilities applies. The seriousness of an allegation affects the inherent probabilities and the strength of evidence required, but does not create a heightened standard of proof. Evidence must be assessed cumulatively and not compartmentalised. The court should determine only facts necessary to resolve the substantive issues. Therapeutic sessions may have forensic value, but their weight depends on the circumstances. Particular caution is required where sessions were conducted on an assumed premise of abuse, were not investigative interviews, and followed prior suggestion or reinforcement. Expert evidence must remain within proper limits; assessment of credibility and the ultimate factual issue remains for the judge.

The proceedings concerned applications under section 8 of the Children Act 1989 relating to TD, including the father’s application for contact. The mother alleged that the father had sexually abused TD and EB, and that the paternal grandmother had witnessed, concealed or failed to prevent abuse. The paternal grandmother was joined after the court identified that findings were being sought against her. Surrey County Council later applied under section 31 of the Act for supervision orders concerning both children.

The fact-finding hearing was substantially delayed and involved extensive evidence, including therapeutic material, hearsay accounts and evidence from a purported veracity expert. The central issues were whether the allegations were true, whether the mother genuinely believed them, and how the evidence should be evaluated.

1. The court applied the civil standard of proof. The burden rested on the person making the allegations. Seriousness was relevant to assessing inherent probability and evidential cogency, but did not impose a higher standard.

2. Evidence had to be considered in the context of the whole case. It was wrong to compartmentalise individual items or to determine collateral historical matters unless they were necessary to resolve the substantive issues.

3. In assessing the children’s accounts, the court placed particular weight on what was said, the circumstances in which it was said, and the circumstances in which the alleged abuse could have occurred. The absence of properly conducted and recorded investigative interviews materially limited the evidential value of the material available.

4. Therapeutic sessions were not automatically excluded from forensic consideration. Their weight depended on the facts. Here, the sessions were therapeutic rather than investigative, proceeded on the premise that abuse had occurred, followed earlier suggestion and reinforcement, and lacked open-ended questioning. They therefore had little or no forensic value in the circumstances.

5. The court rejected the expert’s initial absolutist opinion. Expert evidence could assist with relevant features of interviewing and children’s accounts, but the assessment of credibility and the ultimate factual issue remained for the judge. The court also rejected the suggestion that a young child could not absorb a primary carer’s hostile beliefs about another person.

6. The court found the allegations against the paternal grandmother wholly untrue and made a positive finding of her innocence. It found, to a high degree of probability, that the allegations against the father were untrue and that he was innocent. The mother genuinely believed the allegations, but her belief had been reinforced by an inadequate professional process. The judgment was referred to the Family Division liaison judge.

First-instance fact-finding judgment. No appellate history was stated in the judgment.