P (A Child), Re

In child fact-finding proceedings, the civil standard remains the balance of probabilities. The judge must weigh the alleged fact against other reasonably possible explanations, but need not eliminate every possibility. A reference to excluding other reasonable possibilities does not convert the test into the criminal standard where the judgment, read as a whole, applies the balance of probabilities. A child’s allegations may be assessed in the context of the evidence as a whole, including parental credibility, family dynamics, expert evidence and the circumstances in which the accounts were obtained. An appellate court will not interfere with findings open to the trial judge merely because another evaluation is possible.

The mother appealed against a fact-finding determination by HHJ Tyzack QC in the Exeter County Court. She alleged that the father had emotionally and physically abused their daughter during contact and sought suspension of contact. Following a three-day hearing, the judge accepted that the father had made some inappropriate comments but was not satisfied that he had made the serious alleged threats or had smacked the child. He attributed the allegations to the effects of prolonged parental conflict and the circumstances in which the child’s accounts had developed.

The mother argued that the judge had applied too high a standard of proof, failed properly to analyse the child’s allegations and should have called the CAFCASS officer whose report lacked verbatim records. The central issue was whether the judge had erred in law or reached findings that were not open to him.

1. Appeal dismissed. Bodey J delivered the judgment, and Longmore LJ agreed with it. The trial judge had expressly identified the applicable standard as the civil standard, namely the balance of probabilities.
2. The judge’s references to excluding other reasonable possibilities did not amount to a direction requiring the mother to satisfy the criminal standard. Read in context, they meant that the judge had to weigh the likelihood that the father had made the alleged statements against alternative explanations. The existence of other possibilities was relevant to that comparative assessment. The judge found that an alternative explanation was at least equally credible, and probably more likely, on the evidence.
3. The judge was entitled to assess the child’s accounts in the context of the totality of the evidence. That included the circumstances in which disclosures were made, the evidence and credibility of the parents, expert assessments of the child’s presentation, the DVD showing the parties’ interaction, and other evidence bearing on the family dynamics. The fact that the child appeared calm, coherent and truthful to professionals did not determine whether her accounts accurately described what the father had said or done.
4. The CAFCASS officer’s report contained no verbatim record of the interviews, but its evidential limitations were apparent. The parties had been allowed to comment on it, and the judge was entitled to make a proportionate case-management decision without requiring the officer to give oral evidence. The judge had not rejected the officer’s observations of the child’s demeanour without proper consideration.
5. The findings were plainly open to the trial judge after considering the evidence as a whole. The remaining criticisms were immaterial and did not justify appellate interference or a rehearing. As a postscript, the Court strongly encouraged conciliation, mediation or counselling to address the continuing parental conflict and protect the child’s welfare.

1. Court of Appeal (Civil Division): In [2009] EWCA Civ 908, the appeal was dismissed.
2. Exeter County Court: HHJ Tyzack QC, after a three-day fact-finding hearing in December 2008, found the serious allegations against the father unproved. His written judgment was dated 19 January 2009 and handed down on 16 February 2009.