R (A Child) v Devon County Council & Ors

In family fact-finding proceedings, the standard of proof remains the ordinary balance of probabilities, even where the allegation and its possible consequences are grave. Seriousness does not create a heightened standard or any logical presumption about probability. The inherent probabilities are relevant only insofar as they assist the court in deciding where the truth lies.

An appellate court may uphold findings despite an imperfectly detailed judgment where the judge plainly considered the material issues, the evidence supporting the finding was compelling, and the conclusion was properly open on the evidence. A finding of sexual abuse may be made in a form falling short of full penetration where that possibility was encompassed by the allegation and the respondent denied any sexual misconduct at all.

This was an appeal by C, aged 16, from Judge Tyzack QC’s decision in the Exeter County Court on 28 February 2008 at a fact-finding hearing arising from care proceedings concerning his younger siblings, K and A. Devon County Council alleged that C had sexually abused K. C denied any sexual misconduct.

The judge accepted K’s evidence, supported by semen attributable to C on her pyjama bottoms, and found that abuse had occurred on several occasions, usually in the vicinity of the vagina, sometimes in the vicinity of the anus, with possible partial but no full penetration. C challenged the adequacy of the reasoning, the treatment of contrary evidence, and the fairness of making findings of less than full penetration without specific notice.

1. Appeal dismissed. The Court of Appeal held that the findings against C could safely stand.
2. The judge had correctly used the civil standard, namely the balance of probabilities. Although he had said that the seriousness of the allegation required cogent evidence, this was no more stringent than the approach clarified in In re B (Children) F C [2008] UK HL 35: neither the seriousness of the allegation nor the seriousness of the consequences changes the standard of proof. The inherent probabilities are relevant only in deciding where the truth lies. This applied to the threshold under section 31(2) and welfare considerations under section 1 of the Children Act 1989.
3. The finding that the abuse involved conduct short of full penetration was open to the judge. K’s evidence did not specify the depth of penetration; the medical evidence was inconclusive; and the forensic evidence strongly supported a sexual act. C had denied both anal and vaginal penetration and any other sexual misconduct, so he had suffered no procedural injustice from the lesser finding. The court distinguished the circumstances addressed in In Re B (Children) [2006] EWCA Civ 1186.
4. The judge should ideally have analysed the similarities between K’s and M’s written allegations, and other evidence said to undermine K’s credibility, more fully. Nevertheless, those matters had been forcefully put in submissions, the judge plainly had them in mind, and he was entitled to regard K’s properly conducted and persuasive interview, repeated allegations, and the semen evidence as compelling. The appeal was therefore dismissed.

• Court of Appeal (Civil Division): In R (A Child) v Devon County Council & Ors [2008] EWCA Civ 817, C’s appeal was dismissed and the fact-finding decision was upheld.
• Exeter County Court: On 28 February 2008, His Honour Judge Tyzack QC made findings at a fact-finding hearing arising from care proceedings. No citation for that decision was stated in the judgment.