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.