A Council v B & Ors

In public-law child-protection proceedings, an unproved allegation cannot itself establish a risk founded on past inflicted harm. Where binding authority requires the court to proceed on the basis that the alleged harm was not proved, welfare decisions must be made on that basis. The allegation may nevertheless be considered as part of the relevant background, without treating either the accuser or the accused as necessarily truthful.

Exoneration requires a finding on the civil standard. In a case involving several possible perpetrators, the court first identifies the pool by asking whether there is a real possibility that each person inflicted the harm. It then asks whether it is more likely than not that a person within the pool did not do so. Failure to prove that harm occurred does not establish that it did not occur.

The court had previously found facts establishing the statutory threshold and requiring risk assessment, but had been unable to determine, on the balance of probabilities, whether the respondent father had sexually abused R. It had found a real possibility that the abuse occurred and had made related findings concerning the mother’s alleged complicity.

This further hearing considered the legal effect of those findings at the welfare and risk-assessment stage, the proper test for exonerating an alleged perpetrator, and the instructions to be given to experts. All counsel accepted that existing House of Lords and Court of Appeal authority bound the court.

1. Disposition. The court directed that the risk assessment, its management and the welfare decisions proceed on the basis that R was not sexually abused by Mr B. They were also to proceed on the basis that there was no relevant sexual-abuse risk posed by Mr B or by Mrs B’s alleged failure to protect R. The expert instructions were to include the guidance set out in the judgment.
2. Binding precedent. The court was bound by decisions of the House of Lords and the Court of Appeal. In particular, Re O and N; Re B [2004] 1 AC 523 and [2003] 1 FLR 1169, together with Re M and R [1996] 2 FLR 195, required the court to adopt the existing legal-policy approach. It could not devise a different approach at first instance by relying on policy arguments or private-law reasoning.
3. Unproved allegations. An allegation not proved on the balance of probabilities is to be treated as not having happened for the purpose of the risk assessment. In the limited context of considering the allegation as part of the relevant background, however, the court may recognise that it has not been established whether the accuser or accused is telling the truth. Experts must not determine or assess that credibility issue.
4. Exoneration. A positive finding of exoneration must be based on the civil standard. Where there is more than one possible perpetrator, the court first identifies the pool using the real possibility test and then asks whether it is more likely than not that a person within the pool did not inflict the harm. An inability to prove that harm occurred does not amount to proof that it did not occur.
5. Further guidance. The court considered that the interaction between the existing authorities and welfare-stage risk assessment raised issues meriting reconsideration by the appellate courts. Permission to appeal to the Court of Appeal was granted.

This was a first-instance decision. The judgment records that permission to appeal to the Court of Appeal was granted.