Debating the appropriate standard of proof for really serious stuff

There has been some public discussion of the standard of proof in family proceedings as against the standard of proof in the criminal courts – largely prompted on this occasion by publication of the judgment arising from the care proceedings concerning the sibling(s) of Poppi Worthington.

This is a controversial and difficult issue, and members of the public are often surrprised to hear that a family judge can “find” someone responsible for some really grave conduct like sexual abuse or r*pe or the killing of a child – that they have never been charged for let alone convicted of (sorry I have to say r*pe or I think I will get my site blocked!).

To those of us working in the system it is (sadly) commonplace however, and we well understand both the difficulties associated with it (higher risk of wrong findings), as well as the imperatives behind Parliament’s decision to legislate so as to leave the family court as the arbiter of fact on the civil standard in child protection cases (and indeed in all family matters). We have all seen or are aware of cases where a thing could be proved, where a child is returned home – and where there is subsequently some awful tragedy. It is indeed a difficult balance and although I think I come down on the side of maintaining the current civil standard of proof in family proceedings I respect those who hold a different view (and I think about this a lot and oscillate from time to time about it).

Hannah Quirk was on Radio 4 Today shortly after the Poppi Worthington judgment was published – I had intended to write it up for The Transparency Project at the time, but was too busy. Fortunately she sets out very much the same views in her article on The Justice Gap : Poppi Worthington and the risk of ghost miscarriages of justice.

It is an excellent article, and encapsulates some of the key arguments. There are I think just one or two points I would want to challenge or respond to :

Firstly, this which is to my recollection an almost verbatim reprise of what was said on radio 4 :

This case forms part of a recent trend in which – rightly or wrongly – criminal proceedings have not been possible and other agencies have taken it upon themselves to pronounce on a person’s culpability.

I visibly bristled when I sat in the car and heard the words “taken it upon themselves to pronounce” on the radio. Judges have neither taken it upon themselves to carry out a fact finding exercise, nor have they done so only recently. Judges making findings in this sort of scenario have been doing so for (at least) the almost 30 years since The Children Act 1989 was enacted. The Children Act 1989 is predicated upon the need to protect children, upon the finding of facts mandated in the s31 “threshold” exercise – and the task that judges are carrying out in these cases is a basic function of a civil court (of which the family court is one) – to determine cases based upon the finding of fact and the application of the law to facts as found. Family Courts operate on the civil standard of proof. They have always done so. They do this because Parliament has not legislated for an exception to the rules of evidence in civil cases in relation to the standard of proof (although Parliament has specifically legislated to relax the categories of evidence which may be admitted to permit reliance upon hearsay evidence through the Civil Evidence Act). Where there is a conviction there is no need to find facts. However in many cases there is no conviction. Instead what we are often faced with is a NFA without proper investigation, an interminably long and ponderous investigation with a failure to make a charging decision for months and months or a dropped prosecution. Rarely is there a prosecution that is proceeded with sufficiently speedily and a conviction obtained within a timescale that the family court can work with. Children cannot wait for the slow disaster that is the prosecution of such offences, regardless of the understandable difficulties faced by an overburdened police force and CPS in light of public funding cuts and the ever increasing CSA workload. There may be many many competent and efficient investigations and prosecutions but I am not seeing many of them in the course of my work (I can think of one where we are at 18 months and counting with no charging decision). Perhaps my experience is typical. Perhaps not…

So the finding of facts on the civil standard is not new. It is what we do. If we the public don’t like it we must ask Parliament to change it, not beat up on the judges doing their jobs. Enough with the “taking it upon”. If judges did not first find facts they would be appealed or worse still make bad decisions that put children at risk. If judges did not do so on the civil standard of proof we would rarely be able to effectively protect children. Those who wish to move to a criminal standard of proof are entitled to their view but they need to make their arguments in the knowledge that this is the reality.

And judges should not be criticised for “taking it upon” themselves to carry out rigorous investigation and proper forensic analysis of a standard far higher it would seem than the police are capable of, for “taking it upon” themselves to hear expert medical evidence from half a dozen separate experts and numerous witnesses of fact. If the Police and CPS mess up then the Family Court cannot simply let that lie where it falls and allow a child to be placed at risk. It is incumbent on the Family Court to hold a rigorous and fair hearing before making decisions properly based on evidence and findings. I’ve seen much criticism of the system – but I have not seen anyone properly analysing the judgments of the court and identifying what aspect of the process was less than rigorous. The standard of proof to be met (more likely than not) is lower than in criminal proceedings, but in my experience the forensic process is sometimes more effective in family proceedings. Because whilst hearsay or other evidence may be admitted in our trials that would be inadmissible in Criminal Proceedings, the Family Court is nonetheless free to attribute appropriate weight to it (which might be a lot of weight or none) rather than being compelled to ignore potentially important evidence entirely. I have worked a number of cases where the police have conducted poor ABE video interviews of children (ABE is “Achieving Best Evidence”) and failed to gather other relevant evidence, only to subsequently NFA a case. That does everyone involved a disservice.

Second gripe with the Hannah Quirk argument : that this “could create a new class of ‘ghost’ miscarriages of justice, for which there can be no remedy”.

It could. We must acknowledge that with a lower standard of proof there is a higher risk of a miscarriage and of a child being denied a relationship with a loving and safe parent. We must be alert to it. It is wrong to say however that there can be no remedy. Although Hannah Quirk says that there is “no obvious means of challenging the finding that has been made” there are appeal rights where a decision is wrongly made. As the Poppi Worthington case demonstrates, where there is material new evidence a finding might be revisited, potentially resulting in a different decision. There is a remedy – if there are proper grounds.

Next :

Because the other experts could not provide an alternative scenario, and the judge was unimpressed by Mr Worthington’s account of the events leading up to Poppi’s death, he found on the balance of probabilities (is it more likely than not that the alleged event occurred?) that the father had sexually assaulted his daughter. The expert evidence was so contradictory and inconclusive that it was decided in March 2015 that there was insufficient evidence to prosecute anyone – a criminal conviction would require the jury to be ‘sure’ that this had happened. 

This suggests that the burden of proof was reversed and Mr Worthington had to prove his innocence. He did not. I am not sure that it is right to describe the expert evidence as “so contradictory and inconclusive” that there was insufficient evidence to prosecute. The expert evidence that the family court heard involved a significant amount of consensus. The evidence before the CPS (which is likely to have been less extensive than heard by the Family court and will have been paper evidence rather than oral evidence as heard by the Family Court) was insufficient to satisfy the test for charging – that it was more likely than to that a conviction would be secured on the criminal standard – the article implies that the evidence was very weak but I am not sure that is borne out by a proper reading of the judgments.

One trite point I think worth making is this : a criminal court does not exonerate (just as Hannah Quirk observes a decision not to prosecute does not exonerate) – it simply returns a verdict of “not guilty”, which is to say that the standard of proof has not been reached. Whilst a person might be a fool to publicly accuse someone who has been acquitted of an offence of being guilty of it, nonetheless a civil court could still subsequently find them to have carried out the offence (for example in defamation proceedings where the truth of the assertion was in issue) or to find that they did not do so on the civil standard (both are consistent with a not guilty verdict). A family court, through its consideration and testing of all the evidence including hearsay is able, where appropriate, specifically to exonerate in a way that a criminal court cannot. In Mr Worthington’s case that did not happen but in others, for example the Minnock case it did.

Almost finally :

A single judge making a decision of this significance echoes the concerns raised about the fairness of Diplock judges sitting alone in Northern Ireland. It also seems extraordinary – certainly from a criminal perspective – that a judge should hear an appeal against his own decision.

I take the point about single judges, although I am not sure that the writer is really advocating a jury in cases involving sensitive family matters. In many family cases of course there is not a single judge at all but three Magistrates – but the more complex cases like the Worthington case will be unlikely to be dealt with by Magistrates.

I think it is worth observing that my sense is that some judges really struggle with the standard of proof in relation to particular issues. By which I mean that I think that there is a particular reluctance to make findings of r*pe on a civil standard. Objectively I don’t know why this should be any more the case than in relation to (say) child sexual abuse or physical assault – but that is my subjective experience and it may be more a function of the difficulty of proving r*pe in the context of a relationship where consensual intercourse will at some point have happened (and where it is therefore difficult to distinguish forensically between consensual sex and non-consensual sex) than anything else. If I am right it highlights the difficulties with the objective application of a “more likely than not” test by a single judge.

I agree that it would be extraordinary if a judge heard an appeal against his own decision – because a judge does not ever hear an appeal against his own decision. The rehearing conducted by the judge was just that – a rehearing not an appeal. It was based upon the availability of material and important new evidence not available at the tie of the first hearing, not upon any error on the part of the judge. Had there been no new evidence, but rather the challenge was based upon an assertion that the judge had been biased or had made an error of law (for example) an appeal would have lain to the Court of Appeal. The only circumstance where a judge will revisit her own decision is where an application is made to reopen findings of fact, usually on the basis of new evidence, but possibly also on the basis of some material mistake of fact. I don’t see that as problematic.

Finally :

The media took an interest in this case and challenged the secrecy of previous decisions, in part to highlight the failings of the agencies involved….Judging by much of the publicity and the comments made online, the legal niceties of the burden of proof appear to have been lost on most people.

If any case epitomises the court exercising its powers to ensure privacy rather than secrecy it is this one. The chronology of events which I set out on The Transparency Project blog here makes plain that this judge was open to arguments for the publication of information but was constrained in terms of what he could publish without potentially prejudicing criminal investigations / trials or causing unnecessary difficulties for the Father pending the rehearing. The judge was at pains to explain his decision making process along the way. I think the use of the term “secrecy” in this particular case is unhelpful. Also, I think Hannah Quirk means to refer here to the standard of proof not the burden.

There is a slightly disconnected section at the bottom of this article headed “Due Process”. It relates to the historic concerns about police case building and the more recent historic CSA enquiries. I am not really sure of the relevance of these matters to the case of Poppi Worthington which involved intra-familial abuse, is not historic and does not involve any allegation of case building – rather the police were palpably failing to build any case at all if the judgment is to be believed, and the Family Court judge was sufficiently open minded to allow a lengthy rehearing in this case.

As ever, my exposition of the things I don’t quite agree with, probably leads to this post looking like a wholesale traducement of Hannah’s article. It isn’t. I repeat what I said at the beginning. It is an excellent and timely article. I just want to contribute my few pennies worth.

9 thoughts on “Debating the appropriate standard of proof for really serious stuff

  1. Can you stop with the r*pe please? It is infantile and irritating.

    • It’s not infantile (although it is irritating). It’s not to spare blushes, it is to stop the site being blocked or classified as rated 18. Get over it.

  2. Another point to remember, when considering the interplay between criminal and family proceedings, is that there have been numerous occasions when the family court has identified deficiencies in the work of the cps and police. The absence of a conviction of itself can never denote innocence. Often, if there has been a criminal trial, the evidential picture is quite different. However, there are also occasions when investigations have been discontinued or stagnated because the prosecuting agencies have yet to decide to bring a case at all.

    There is one notable case in which Moor J found a case proven “to the criminal standard” in the family court, sending a very clear message to the CPS as to what he thought of the absence of a prosecution. Perhaps, where the family court does consider something proven to the higher standard, it shouldn’t shy from saying as much.

    • Hi Andrew,
      Yes you are right – I thought I had made that point, although on reflection I did not perhaps spell it out as well as you have. I remember the Moor J case you mention – I will try and find and add the link when I have a mo. I do think that on occasion judges say that they are satisfied so they are sure about things – whether that is exculpation or “conviction”, although that was a particular pointed example as you say. From memory I *think* the vindication of the father in the Minnock case may have been in such terms?? Or I may be thinking of the father in the Vicky Haigh case…Will have to look it up.
      Lucy

  3. The Family Courts when it comes to Fact Finding – Make it up as they go along.

    It all comes down to a single Judge or magistrates prejudices and biases – No evidence is actually required.

    It is who the Judge wishes to believe. The process is a shambles for the most part, often without all the evidence being available.

    Judgments are just an opportunity for a Judge to support his/her view, often leaving out counter arguments and anything which is inconvenient.

    Appealing Fact Finding Hearings is pointless as the Appeal court just points to the trial Judge having a broad area of discretion and was able to see the parties and use their own judgment, which the appeal court cannot do. Nonsense of course.

    Any serious allegations should be dealt with in the Criminal Courts only, with all the checks and balances that system has. With Lawyers who know how to deal with serious allegations, rather than just making it up as they go along.

    Family Courts are a bastion of unsafe practices and result in numerous injustices, simply because it is easier for those who work in the system.

    Appalling!

  4. The more important question is, I think, how courts should approach cases where it is not possible to determine on the civil standard who caused an injury. I am uncomfortable with the policy of including people in the pool of perpetrators on the basis that there is a real possibility of that person having caused the injury. This is all the more so when dealing with injuries of an unknown aetiology.

    From a practical perspective, it often has the result of reversing the burden of proof. People who might have caused an injury must show the court that they did not in order to get out of the pool. This strikes me as procedurally unfair.

    • Andrew (2),
      I agree that the pool of perpetrators scenario is difficult and messy. However I’m not sure I agree with what you say about injuries of unknown aetiology. By definition if the aetiology of an injury cannot be determined then the standard of proof cannot be reached and the suspected person will get the benefit of the doubt and be treated as not responsible. That is the law as clearly set out in many judgments. That is not to say that it is easy to apply the law – one often has to caution a judge against inadvertently reversing the burden of proof, and I can think of cases where I have felt like that was falling on deaf ears – I don’t suggest the system is perfect or that judges are anything other than fallible. But where it is more likely than not that a person caused an injury in some culpable way the court has to go on and attempt to establish who that person was. It is of course not always so streamlined a process – the court may be faced with competing scenarios to explain a traumatic injury, but ultimately the court is still attempting to decide whether the explanation contended for by the local authority is more likely than not to in fact explain the injuries correctly.
      Of course a jury is as fallible as a judge, and it is worth remembering that these difficult issues of burdens and pools are difficult for them also. Whereas a judge who has inadvertently reversed the burden may be appealed because his rationale will be transparently articulated in a judgment, a jury who convict are not subject to such scrutiny – and so in that sense an appeal would be harder to pursue in criminal proceedings (although there are other ways in which a criminal appeal might be more easy to get off the ground due to the different approach to things like admissibility and chain of evidence).

  5. In reference to mostable’s comments (30 January), I have to say I wholeheartedly agree with him.

    Having recently turned up for a scheduled Fact Find – along with 5 witnesses – the process was aborted before it began because the judge decided, regardless of outcome, that any findings would not change anything.

    What a farce…..why order one in the first place? And then, why cancel on the due day after everybody had turned up?

    In my opinion, the judge pre-judged everything – thus, mostable is spot on when he says ‘it all comes down to a single judge’s prejudices and biases – no evidence is actually required. The judge wanted to believe my ex-partner and did not want to hear anything that might have forced him to have to disbelieve him.

    The case rumbled on and eventually went to a final/contested hearing. This time I had 7 witnesses in support – including 2 professionals – but the judge only wanted to allow one to give evidence and then, when this witness was on the stand, he asked him nothing. Being self-representing I had no legal assistance to draw out any evidence and was prohibited from doing so myself. Thus, none of my evidence was heard and the judge threw out my allegations, which remained untested and unheard.

    The judge exploited my LIP status and was not interested in anything that would discountenance or discredit my ex-partner. Consequently, my ex-partner now believes he is untouchable and sees the judge’s actions as a green light to carry on in his abusive and aggressive manner.

    The family courts do not operate in a way that is consistent with promoting /safeguarding a child’s best interests; rather they bend over backwards to ensure fathers’ rights are upheld regardless of whether it is safe for the child or not. Had I not lived through this myself and I would never have believed it.

    Truly shocking.

  6. Thruthaholic,
    I can totally understand where you are coming from as I have been and remain in the same boat as you. The last hearing was horrendous, there was the evidence, right in front of the judge, but no, he wanted to save it for the Final Hearing in June, in the mean-time, put my children at even higher risk with very damaging consequences. Being LIP certainly doesn’t pay and with the lack of LA we have no choice. But, I am just about to go into even more debt so I can appoint a solicitor, who can appoint a barrister, as going Direct Access isn’t as easy as I thought for reasons I wouldn’t want to discuss here. Debt will be the least of my worries if I can safeguard my children.
    I also agree with mostable.
    The whole system is shocking all round.

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