A (Children) [2018] EWCA Civ 1718

[2018] EWCA Civ 1718Case No B4/2018/0188
IN THE COURT OF APPEAL (CIVIL DIVISION)
[2017] EWHC 3707 (Fam)
ON APPEAL FROM THE HIGH COURT
(Family Division)
Mr Justice Francis
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 25/07/2018
Before
Senior President of TribunalsLady Justice KingLord Justice Sales
Between
A (Children)AppellantA (Children)
Frances Judd QC and Tim Parker (instructed by instructed by the Legal Department London Borough of Southwark) for AppellantAndrew Bagchi QC and Gemma Kelly (instructed by Freeman Solicitors and Imran Khan & Partner Solicitors) for First and Second RespondentsJohn Tughan QC and Rebecca Foulkes (instructed by Harris Temperley Solicitors) for Third RespondentMark Twomey QC and Neil Shah (instructed by Miles & Partners Solicitors) for Fourth RespondentHearing Hearing date: 3 July 2018
Judgment Approved
[1]This is an appeal brought by the London Borough of Southwark (“the local authority”) from an order made in the High Court on 8 January 2018 whereby the judge dismissed the local authority’s application for care orders in respect of five children aged between 1 and 16 years.[2]A recital to the judge’s order set out the basis for his dismissal of the application as follows:
“Upon the Court finding that the local authority had not proved that the genital injuries and the fatal neck injuries suffered by S were deliberately inflicted and that therefore the threshold criteria set out in section 31(2) of the Children Act 1989 are not satisfied in this case in relation to each of the children.”
[3]It is against those findings of fact that the local authority now appeal.[4]The trial which led to the making of the order was a designated finding of fact hearing heard over 15 days in relation to a sixth child of the family, a ten year old girl S, who died at the family home on the night of 19/20 November 2016.[5]The issue before the court is whether the judge fell into error in the findings he made in relation to certain medical evidence and, thereafter, failed properly to consider the totality of all the evidence prior to determining that the outcome of the case had to be decided in percentage terms by reference only to the burden of proof.

Background

[6]On Saturday 19 November 2016 the mother and children visited family members whilst the father was at work. By the middle of the evening all the family were once again at home where they remained. S was found dead around 10am on Sunday 20 November 2016 in the bedroom she was sharing with her younger sister (then aged six) and her little brother (then nearly four). A 999 call was made. Initially the police and paramedics who came in response to the call believed that S’s death was as a result of a tragic accident; she had apparently become entangled in, and strangled by, some decorative netting around her top bunk.[7]On 24 November 2016, a special post mortem was conducted by Dr Nathaniel Cary and Dr Andreas Marnerides. In his preliminary report, Dr Cary concluded that S’s death was probably the result of a sexually motivated homicide. At that stage, Dr Cary’s opinion was that death had been caused by ligature compression to the neck (a ligature mark on her neck being consistent with strangulation) and that there was, in addition, evidence of injury to both S’s internal and external genitalia as well as the anorectal region.[8]Dr Cary’s report prompted the police to treat the death as a potential crime. Unfortunately, however, in an investigation replete with the sort of mistakes made in the Poppi Worthington case (Cumbria CC v M&F [2014] EWHC 4886 (Fam) [82-100]), the opportunity to gather critical evidence including DNA and fingerprint evidence, was lost consequent upon the delay and the deficiency in the police investigation.[9]The judge described a catalogue of failures which he set out in some detail in his judgment concluding that:
“43…the police appeared to have closed their minds during the crucial period after the discovery of the body to the possibility of third-party involvement, or a perpetrated act, which led to most or all of the above failures.”
[10]As if the task subsequently faced by the judge (and those representing the parties) was not challenging enough, there were also serious deficiencies in the approach the police took to disclosure. The judge was highly critical of the police saying:
“44. I regard the disclosure of relevant material by the police in this case to have been woefully inadequate.”

The judge, whilst acknowledging the resource issues facing the police went on to observe:

“However, this case was no ordinary situation, but a case which possibly involved vaginal and anal penetration of a ten year old prior to her murder. I do not think it gets much more serious than that.”
[12]I agree.[13]In the light of the post mortem findings, the local authority applied for an emergency protection order in relation to the five surviving children (although in the event this was only pursued in relation to C, (the only other girl) and D (their third son then aged nearly four). In due course, the two younger children were returned to the mother’s care (the youngest child, E, a bay of a few months old, remained in the mother’s care throughout) and, following the judge’s order dismissing the application for a care order, in January 2018, the whole family were reunited. As matters stand today, none of the children are the subject of protective orders and the family have now been living together under the same roof for a period of six months.

The parties’ positions

[14]The local authority’s position is that there must be a retrial. They submit that notwithstanding the obvious distress and disruption that this would involve the case is nevertheless of such gravity, and the potential child protection risks so great, that there is no alternative.[15]In this appeal, not only the parents, but also A (now aged 16) and B (now aged 14) have been represented. These two boys have had separate representation throughout given that B was considered by the police potentially to be responsible for his sister’s death and both were within the so called “pool of potential perpetrators” in the care proceedings.[16]Mr Bagchi QC on behalf of the parents, Mr Tughan QC on behalf of A and Mr Twomey QC on behalf of B have accepted, to various degrees, that the judgment is susceptible to significant challenge. They each however submit that, notwithstanding the limited analysis in the judge’s judgment, the judge was entitled to reach the conclusion that he did. Further, they each strongly and tenaciously submitted, that if the reality is that the judgment must be set aside, there should be no further proceedings or retrial. Mr Twomey on behalf of B, argued not so much against the concept of a retrial, but sought some form of indication from this court, for the benefit of a future first instance judge, that it would be disproportionate for his young lay client to remain in the pool of potential perpetrators at any retrial.

Grounds of Appeal

[17]Although there are five grounds of appeal, the local authority focuses on two main grounds of challenge to the judge’s findings, namely: i) That the judge’s analysis and conclusions as to S’s genital injuries were inadequate and wrong. ii) That in his analysis and conclusions as to how S died (mechanism of death) the judge was in error in excluding or failing to give adequate weight to the genital injuries sustained by S.[18]A respondent’s notice was filed on behalf of the parents on 29 March 2018. By that notice it is submitted that, even if the judge had found that S had been sexually assaulted and killed by a third party, there was sufficient evidence to uphold the judge’s order on the basis that the judge could not have found the section 31 threshold satisfied as he could not have concluded that the perpetrator was one of the four family members in the proposed pool of perpetrators, the judge not having excluded the possibility of an intruder being responsible for S’s death.

The medical evidence in brief

[19]The judge had before him the reports from Dr Cary and Dr Marnerides. In addition he had a report from Dr Stephen Leadbeatter who is a senior lecturer in forensic pathology at Cardiff University and who was appointed as the single joint expert in the care proceedings. Finally Dr Clare Lipetz, a gynaecologist with expertise in genital injury, prepared a report and gave evidence.[20]It follows that Dr Leadbeatter and Dr Lipetz were each working on the specimens and the photographs taken by Dr Cary at post mortem. Unhappily the quality of the photographs was, in a number of cases, suboptimal and whilst a sense of frustration is clear from the experts, it is equally clear from the written and oral evidence that those deficiencies did not impact upon the core conclusions of each of Dr Leadbeatter and Dr Lipetz, particularly Dr Lipetz.[21]On 10 October 2017 the experts attended an experts’ meeting by telephone, a full transcript of that meeting was available for the judge. There was a substantial measure of agreement between the doctors. In summary: i) The cause of S’s death was due to pressure on her neck involving a ligature. Dr Cary felt that this was more likely to be due to someone “pulling” rather than a “hanging” mechanism. ii) S is much older than would be expected for an accidental hanging. iii) An accident is less likely than a deliberate act by S or a third party. Suicide by this age is not impossible but unlikely; homicide is “high on the list” and it is on this basis that the death would be investigated. iv) There are signs microscopically and to the naked eye of genital injuries. v) So far as anal injuries were concerned, there was a variation of view at the experts’ meeting; Dr Cary believing that they were present, Dr Leadbeatter was unable to “convince himself of injury to the anorectal region” and Dr Lipetz not able “confidently to see the anal injuries”. Following oral evidence the local authority no longer sought a finding in relation to anal injuries. vi) That S had sustained an acute traumatic injury each agreed. Dr Cary and Dr Lipetz were clear there was penetration. Dr Leadbeatter deferred to Dr Lipetz that there was penetration, a likely cause of which was digital penetration, although attempted penile or object penetration could not be discounted. vii) The genital injuries were acute and likely to be up to 12 to 14 hours prior to death. From the time of injury S would have been in pain.[22]Whilst not specifically dealt with in the experts’ meeting, there was consensus that death occurred sometime between 11pm and 2am.

The judgment

[23]The judge was faced with a formidable task. Not only was he faced with a case of the utmost seriousness with complex medical evidence, but he was coping daily with drip feed disclosure from the police. It is little wonder that a substantial part of the judge’s judgment deals with the failures of the police investigation, and his analysis of the current protocol in relation to police disclosure. In addition the judge set out the enumerated suggestions as to his proposed management of cases where there is no, or inadequate, police cooperation with the disclosure process.[24]A significant part of the judge’s judgment dealt also with the DNA evidence. The DNA evidence was confused, confusing and incomplete. The local authority initially sought to instruct their own expert, but when that expert withdrew, another suitable expert could not be identified. An application made by the local authority during the course of the trial to call an officer within the police’s Forensic Services who was responsible for analysing the DNA material was refused.

The judge concluded by saying:

“If, and I deal with this shortly, S was sexually assaulted at some point close to her death, the presence of male DNA, which is probably not that of a family member, supports the possibility, perhaps the probability, that such sexual assault, if it occurred, was committed by a male who is not a family member.”
[25]The judge made no reference in his judgment to the results of swabs taken at post mortem whereby unconfirmed traces of male DNA were detected in the low internal vaginal swab and an internal anal swab.[26]No matter how unsatisfactory and how little help the judge had in this respect, the issue of DNA it would appear, ultimately went to the identity of the perpetrator (if there was one) and not to the issues which are the subject of this appeal.[27]The aspect of the judge’s judgment upon which the local authority focuses comes in relation to that stage in the judge’s decision making process which comes before any consideration of the identity of a perpetrator, and is in respect of his decision that the local authority had failed to prove that the genital injuries and fatal neck injury, or either of them, were deliberately inflicted.[28]I turn therefore to the judge’s assessment of the genital injuries and his approach to the totality of the evidence.

The genital injuries

[29]The judge’s analysis of the genital injuries is found in paragraphs 67 and 68 of his judgment.

The judge quoted the following passage from the cross-examination of Dr Cary by Ms Bazley:

“Q: Is it unequivocal for sexual assault or trauma? A: Trauma. Sexual assault implies one knows what happened. Q: Is it better described as a finding of trauma? A: That’s fair. It’s in a very specific site where usually the only reasonable conclusion is sexual assault. There are ways of falling that could cause this but I don’t think that is suggested here. Q: From a pathological perspective all you can say is trauma? A: That’s true.”
Q: Is it better described as a finding of trauma? Q: From a pathological perspective all you can say is trauma? A: That’s true.”

Q: From a pathological perspective all you can say is trauma?

The judge having quoted this passage of the evidence, went on to say:

“68. Dr Cary had, in his report, regarded petechiae as indicative of tissue damage but in cross-examination he agreed that hypostasis could cause the signs in that region, and that he could not exclude the possibility of them being a post-mortem feature. In relation to bruising around the introitus, he conceded that it would not be right to say that this was evidence specifically of sexual assault and conceded that it is better to describe it as trauma. He acknowledged that it could indicate a straddling injury or S having fallen on something hard.”
[31]This led the judge to form the view that the evidence in relation to the genital injury was “far less conclusive” “following cross-examination” (presumably than on paper and following the expert’s meeting to which no reference was made in the judgment). The judge went on to say that he: “must be careful in allowing my view of the likely mechanism of death to be increased by the existence of the genital injury”.[32]Ms Judd took the court to the transcript of Dr Cary’s evidence to assist the court by putting in context what the judge seemed to regard as an acceptance on Dr Cary’s part that S had sustained a straddling injury. It was being put to Dr Cary that genital injuries could be sustained which were not consequent upon a sexual assault. Ms Bazley’s cross examination went on:
“Q: Particularly if it’s on the night in question, because one could have, the child could have fallen on something hard, or something could have, could be some sort of impalement injuries. A: Yeah, a so called straddling injury. Q: Yes. A: I think the clinical doctor provides some information on that. Q: Well she does but I am asking about the pathology. A: Yes absolutely. Q: And from the pathological perspective all you can say is it’s trauma. A: That’s true.”
A: That’s true.”[33]For my part, I do not interpret this as a concession by Dr Cary that this could have been a straddling injury; rather he was identifying the mechanism being put to him by Ms Bazley as one known as a ‘straddling injury’ and he refers to Dr Liptez (the clinician) as having a view about that - which she had. In any event, Dr Cary’s evidence was clear that, from a pathological perspective, all he could say was that these undoubted injuries to S’s genitalia were traumatic in origin; a conclusion with which all three pathologists agreed. He remained of the view that the likely causation of the trauma was sexual abuse.[34]Unfortunately, other than saying “photographs were seen and reported on by Dr Lipetz whose experience in genital injuries is immense” and a reference to the poor quality of some of the photographs made available to her, the judge did not refer to, or set out, Dr Lipetz’s unequivocal evidence (as the only expert in her field) that the injuries were not straddle injuries and involved penetration in addition to the external bruising.[35]Indeed the judge himself reverted to this aspect of the testimony at the conclusion of Dr Lipetz’s evidence. At the request of the judge and in order to clarify the evidence that she had given earlier that S did not have a straddle injury, Dr Lipetz described the physical differences seen as between straddle injuries and penetrative injuries, concluding:
“…so when I am referring to straddle injuries, I am talking about a mechanism that actually we haven’t seen the effect of in this case. And I haven’t seen a straddle injury with a clear history that has shown penetrative type injury at the introitus, at the entrance to the vagina. Is that clear?”
[36]Mr Tughan submitted that Dr Lipetz had allowed herself to ‘become confused’ and that this was a conclusion which depended upon there being a hymenal tear, a finding about which both Dr Cary and Dr Leadbeatter were unconvinced. He accepted however that the uncontroverted evidence was that there had been penetration and Dr Lipetz’s evidence (to which there was no reference in the judgment) was consistent with the views that she had expressed in the experts’ meeting.[37]At the conclusion of the evidence, there was no significant difference of opinion as between the medical experts and in particular between Dr Cary and Dr Lipetz although there were, as referred to above, some variation in their views as to the existence of anal and hymenal tears. Both doctors believed the vaginal injuries had a traumatic origin, both doctors believed it had involved some sort of penetration and neither considered that S had sustained a straddle injury. Dr Lipetz, whose particular expertise is in the etiology of genital injuries, could not see any way in which S could have injured her genitals in the bedroom in any sort of an accident. She had already said in her written report that she did not think the injury could have been sustained by S through her pyjamas and, in the experts’ meeting, said that, based on her experience, the injuries had occurred up to 12 to 24 hours before death.[38]In my judgment the judge fell into error in dismissing the genital injuries based on what seems to me to have been a misunderstanding of Dr Cary’s evidence and having failed to consider the clear and consistent evidence of Dr Lipetz in respect of the key issue, namely that this child had sustained penetrative traumatic genital injuries whilst in the care of her parents for which there was no explanation.[39]The judge did not consider how the vaginal injuries might have occurred (whether as an accidental straddle injury or abusive digital penetration); this would have involved careful consideration of the events which took place over that weekend and the night in question and in my judgment, were of critical importance in considering whether the threshold criteria was satisfied. As it is, the judge made no specific findings at all in relation to the genital injuries and made no further reference to them in his judgment.

The relevance of the genital injuries:

[40]Ms Judd QC on behalf of the local authority highlights the relevance of the genital injuries to the case by reminding the court of the observations by Butler-Sloss P in Re T [2004] EWCA Civ 558, 2004 2FLR 838 where she said:
“33… evidence cannot be evaluated and assessed in separate compartments. A judge in these difficult cases has to have regard to the relevance of each piece of evidence to other evidence and to exercise an overview of the totality of the evidence in order to come to the conclusion whether the case put forward by the local authority has been made out to the appropriate standard of proof.”

The judge rightly observed [64] that:

[41]“the experts took the view that the likelihood of this mechanism of death is increased by the existence of the genital injury”.[42]That that was unequivocally the case was set out clearly in the transcript of the experts’ meeting. Dr Leadbeatter, having noted that suicide in this age group is rare, and that accidental entanglement is better described in a child younger than S, (usually on the cords of a blind) went on to say:
“and then one is left with homicide and that must be regarded, as Dr Cary has said, as high on the list. It is what one would investigate this death as. This is then the supporting circumstances other injuries that may sway one towards a view.”
[43]Dr Lipetz then interposed to say as follows:
“I think, when you are considering these three possibilities, the anogenital injuries do come into play because if one was looking at plausible accidental mechanism, you would have to include the other injuries and it is very hard to see without any evidence from seeing photographs or from the police investigation how there would be two accidents: one to the anogenital region and then the entanglement. In terms of suicide after an anogenital injury, that could be a possibility but again, that age group is, very, very unusual and wouldn’t seem a typical response of a child who is described as a sunny disposition with a close family network, so disclosure of the anogenital injury to someone would be more likely than suicide. So they don’t fit. I think, you have to include the other injuries in there looking at a mechanism, then.”
[44]Both Dr Cary and Dr Leadbeatter responded to this observation by Dr Lipetz by saying that this was “a very helpful contribution”. Nothing in the oral evidence undermined this united view of the experts.[45]Ms Judd submitted, and I agree, that the judge fell into error at this point. Reaching a conclusion as to the likely mechanism of death, that is to say inflicted as opposed to accidental or suicide, must surely (as posited by the experts) be informed by the existence of serious unexplained genital injuries sustained by a 10 year old child shortly before death. In my judgment, the judge was wrong in confining himself by saying that he “must be careful in allowing the likely mechanism of death to be increased by the existence of the genital injury”. That injury was, in my view, an important part of the picture and the judge, in reaching his conclusion that S’s death was not caused as a result of an inflicted injury, was in error in disregarding the traumatic genital injuries.[46]The judge, as a consequence, whilst referring to the so called “wide canvas” failed to consider the whole picture which was to inform him as to whether S had died as a consequence of an inflicted injury. That is to say the judge did not connect the fact that S had sustained a traumatic penetrative injury to her genitalia up to 12 to 24 hours (and perhaps immediately before) her death with the fact that she died as a result of a ligature around her neck; which ligature, the experts all agreed, presented in such a way as would have been “very atypical for a hanging etiology”.[47]The judge, having heard the parents give evidence, found them to have been evasive and unsatisfactory witnesses; it follows therefore that an examination of the surrounding circumstances, including who was sleeping where and when and an analysis of the movements of the family during the critical period between 11pm and 2am was all the more important to a proper evaluation of “the wide canvas”.

Burden of Proof

[48]The judge identified his ‘first task’ as being to decide whether on the balance of probabilities, ‘the act’ was perpetrated by a third party. He went on:
“96…Whilst there is agreement as to the cause of death, there is no clear medical evidence as to how the ligature strangulation occurred, other than it appears to have been with the netting around the bed. I cannot exclude the possibility of suicide, albeit that in my judgment it is the least likely of the three possibilities. I bear in mind that all those who initially attended the scene took the view that this was a tragic accident and that is a view that pertained until Dr Carey’s report. Dr Carey has, as set out above, retreated somewhat from the initial report in any event. The DNA evidence, as I have set out above in inconclusive.”
[49]Setting aside my uncertainty as to the accuracy of parts of this summary, it unfortunately makes no mention of the undisputed genital injuries to S, whether caused accidentally or otherwise.[50]The judge moved on to draw upon the decision of Mostyn J in A County Council v M & F [2011] EWHC 1804 (Fam), [2012] 2 FLR 939 as support for his contention that, where there are rival hypotheses, the judge is not bound to make a finding and that as a consequence the burden of proof is the only course to take. The judge went further saying that:
“98. I find that this is one of those unusual cases where the burden of proof comes to the judge's rescue. Aggregating, as I must, the probability of suicide together with the probability of accident, I find that the aggregate of these two is more than 50 per cent. Doing the best that I can, I find that the possibility of suicide is about 10 per cent, and the possibility of accident and a perpetrated act are about 45 per cent each. It would be wrong for anyone to regard these figures as in any way accurate, for of course they are not. They persuade me, however, that the local authority has not discharged the burden of proof which is upon it. I am not satisfied, on the balance of probabilities, that this was a perpetrated act, albeit that I recognise that it is one of three possibilities. On the basis, however, that I do not discard the least probable and then allow a competition between the other two options, but that I should look at each of the alternative possibilities and aggregate them together, I am quite satisfied that the burden of proof in this case is not discharged. Accordingly, I do not find that the local authority’s case is proved in respect of any of the contested issues. By application of the binary principle, it is the finding of this court that neither the father, the mother, M or N are responsible for a sexual assault on L and nor are they responsible for her death. Accordingly, threshold is not met.”
[51]With respect to the judge I cannot agree that the use of percentages and or ‘aggregation’ is the proper approach to the judicial function in respect of the simple application of the balance of probabilities.[52]The starting point remains the test as articulated by Baroness Hale of Richmond in Re B (Minors) [2008] 3 WLR 1HL:
“70. My Lords, for that reason I would go further and announce loud and clear that the standard of proof in finding the facts necessary to establish the threshold under section 31(2) or the welfare considerations in section 1 of the 1989 Act is the simple balance of probabilities, neither more nor less. Neither the seriousness of the allegation nor the seriousness of the consequences should make any difference to the standard of proof to be applied in determining the facts. The inherent probabilities are simply something to be taken into account, where relevant, in deciding where the truth lies. 71. As to the seriousness of the consequences, they are serious either way. A child may find her relationship with her family seriously disrupted; or she may find herself still at risk of suffering serious harm. A parent may find his relationship with his child seriously disrupted; or he may find himself still at liberty to maltreat this or other children in the future”
[53]In A County Council v M & F, upon which the judge relied, Mostyn J having set out passages from Re B (and Baroness Hale’s confirmation of Re B foundin Re S-B [2010] 1 All ER 705, SC,) went on: “16. Thus the law sets a simple probability standard of 51/49, but the more serious or improbable the allegation the greater the need, generally speaking, for evidential "cogency". In AA v NA and Others [2010] 2 FLR 1173, FD, I attempted to summarise these principles at para 24: 17. Thus, it is clear that in all civil proceedings P cannot be set higher than a scintilla above 0.5. The various judicial statements that a more serious charge requires more clear evidence is not an elevation of P > 0.5. The requirement of evidential clarity is quite distinct from an elevation of the probability standard. Were it otherwise, and, say, an allegation of rape or murder of a child made in civil proceedings required P to be set at > 0.6 then one could end up in the position where a court considered that P in such a case was, say 0.51 but still had to find that it did not happen; when, as a matter of probability, is was more likely that not that it did. This would be absurd and perverse. P must always be set at > 0.5 in civil proceedings, but subject to the proviso that the more serious the allegation so the evidence must be clearer."[54]With the greatest respect to the erudition of Mostyn J’s arithmetical approach to the application of the ‘simple balance of probabilities’, I do not agree that it represents the appropriate approach, and it seems to me that this passage had, in part, led the judge to decide that, in order to determine whether the local authority had discharged the burden of proof to the necessary standard, he had to adopt the same approach. As a consequence, the judge mistakenly attached a percentage to each of the possibilities and thereafter, added together the percentages which he attributed to an innocent explanation and before concluding that, only if the resulting sum was 49% or less, could the court make a finding of inflicted injury.[55]In A County Council v M & F Mostyn J had drawn on the shipping case of The Popi M ( Rhesa Shipping Co.S.A. v Edmunds, Rhesa Shipping Co.SA v Fenton Insurance Co Ltd) [1985] 1 WLR 948 HL,(Popi M) as an example of “ the burden of proof coming to the rescue”[18]. Lord Brandon, in his celebrated passage in Popi M, in declining to apply the dictum of Sherlock Holmes to the effect that “when you have eliminated the impossible, whatever remains, however improbable, must be the truth” said: “The first reason is one which I have already sought to emphasise as being of great importance, namely, that the judge is not bound always to make a finding one way or the other with regard to the facts averred by the parties. He has open to him the third alternative of saying that the party on whom the burden of proof lies in relation to any averment made by him has failed to discharge that burden. No judge likes to decide cases on burden of proof if he can legitimately avoid having to do so. There are cases, however, in which, owing to the unsatisfactory state of the evidence or otherwise, deciding on the burden of proof is the only just course for him to take. The second reason is that the dictum can only apply when all relevant facts are known, so that all possible explanations, except a single extremely improbable one, can properly be eliminated[56]Recently (and after A County Council v M&F), in Nulty Deceased v Milton Keynes Borough Council [2013] EWCA Civ 15, [2013] 1 WLR 1183 Lord Justice Toulson (as he then was) considered the use of an arithmetical approach to the standard of proof. Having first considered Popi M hewent on:
“33. Lord Brandon concluded, at 957, that the judge ought to have found simply that the ship owners’ case was not proved. 34. A case based on circumstantial evidence depends for its cogency on the combination of relevant circumstances and the likelihood or unlikelihood of coincidence. A party advancing it argues that the circumstances can only or most probably be accounted for by the explanation which it suggests. Consideration of such a case necessarily involves looking at the whole picture, including what gaps there are in the evidence, whether the individual factors relied upon are in themselves properly established, what factors may point away from the suggested explanation and what other explanation might fit the circumstances. As Lord Mance observed in Datec Electronics Holdings Limited v UPS limited [2007] UKHL 23, [2007] 1 WLR 1325, at 48 and 50, there is an inherent risk that a systematic consideration of the possibilities could become a process of elimination “leading to no more than a conclusion regarding the least unlikely cause of loss”, which was the fault identified in The Popi M. So at the end of any such systematic analysis, the court has to stand back and ask itself the ultimate question whether it is satisfied that the suggested explanation is more likely than not to be true. The elimination of other possibilities as more implausible may well lead to that conclusion, but that will be a conclusion of fact: there is no rule of law that it must do so. I do not read any of the statements in any of the other authorities to which we were referred as intending to suggest otherwise. 35. The civil “balance of probability” test means no less and no more than that the court must be satisfied on rational and objective grounds that the case for believing that the suggested means of causation occurred is stronger than the case for not so believing. In the USA the usual formulation of this standard is a “preponderance of the evidence”
. In the British Commonwealth the generally favoured term is a “balance of probability”. They mean the same. Sometimes the “balance of probability” standard is expressed mathematically as “50 + % probability”, but this can carry with it a danger of pseudo-mathematics, as the argument in this case demonstrated. When judging whether a case for believing that an event was caused in a particular way is stronger than the case for not so believing, the process is not scientific (although it may obviously include evaluation of scientific evidence) and to express the probability of some event having happened in percentage terms is illusory. 36. Mr Rigney submitted that balance of probability means a probability greater than 50%. If there is a closed list of possibilities, and if one possibility is more likely than the other, by definition that has a greater probability than 50%. If there is a closed list of more than two possibilities, the court should ascribe a probability factor to them individually in order to determine whether one had a probability figure greater than 50%. 37. I would reject that approach. It is not only over-formulaic but it is intrinsically unsound. The chances of something happening in the future may be expressed in terms of percentage. Epidemiological evidence may enable doctors to say that on average smokers increase their risk of lung cancer by X%. But you cannot properly say that there is a 25 per cent chance that something has happened: Hotson v East Berkshire Health Authority [1987] AC 750. Either it has or it has not. In deciding a question of past fact the court will, of course, give the answer which it believes is more likely to be (more probably) the right answer than the wrong answer, but it arrives at its conclusion by considering on an overall assessment of the evidence (i.e. on a preponderance of the evidence) whether the case for believing that the suggested event happened is more compelling than the case for not reaching that belief (which is not necessarily the same as believing positively that it did not happen)”.[57]I accept that there may occasionally be cases where, at the conclusion of the evidence and submissions, the court will ultimately say that the local authority has not discharged the burden of proof to the requisite standard and thus decline to make the findings. That this is the case goes hand in hand with the well-established law that suspicion, or even strong suspicion, is not enough to discharge the burden of proof. The court must look at each possibility, both individually and together, factoring in all the evidence available including the medical evidence before deciding whether the “fact in issue more probably occurred than not” (Re B: Lord Hoffman).[58]In my judgment what one draws from Popi M and Nulty Deceased is that: i) Judges will decide a case on the burden of proof alone only when driven to it and where no other course is open to him given the unsatisfactory state of the evidence. ii) Consideration of such a case necessarily involves looking at the whole picture, including what gaps there are in the evidence, whether the individual factors relied upon are in themselves properly established, what factors may point away from the suggested explanation and what other explanation might fit the circumstances. iii) The court arrives at its conclusion by considering whether on an overall assessment of the evidence (i.e. on a preponderance of the evidence) the case for believing that the suggested event happened is more compelling than the case for not reaching that belief (which is not necessarily the same as believing positively that it did not happen) and not by reference to percentage possibilities or probabilities.[59]In my judgment the judge fell into error, not only by the use of a “pseudo- mathematical” approach to the burden of proof, but in any event, he allowed the ‘burden of proof to come to [his] rescue’ prematurely.[60]In my judgment the judge had failed to look at the whole picture. Not only did he fail to marry up the fact that S sustained two sets of injuries (one of which was fatal) but the judge, faced with the incontrovertible evidence in relation to the genital injuries, carried out no analysis of the available evidence in order to see whether an accident (for example) was a likely cause. Whilst in other circumstances I might have identified, or highlighted by way of example, certain evidence which I believe merited consideration by the judge, given my view that the appeal must be allowed and the matter remitted for rehearing, it would not be appropriate for me to comment further.[61]Only if, having carried out such a comprehensive review of the evidence, a judge remains unable to make findings of fact as to causation, can he or she be thrown onto the burden of proof as the determinative element.[62]In my judgment, in this most difficult of cases and in the most trying of circumstances, the judge failed to carry out such an analysis before relying on the burden of proof. This, when coupled with the erroneous conclusions of the judge in respect of the genital injuries and his failure to give those injuries any weight when considering whether S died as a consequence of an inflicted injury, must, in my judgment, lead to the appeal being allowed and the order set aside.[63]I have considered with a deal of anxiety whether the case should be remitted given the lapse of time and that the family are reunited. I have however come to the unequivocal conclusion that it must. If S was killed other than by accident or suicide, it happened in that household and no one has any idea how or in what circumstances it came about. This is not a case, tragic and serious though that would be, where a child may have been shaken in an understandable momentary loss of self-control by an exhausted parent. This was a 10 year old child, and if it was the case that her death was caused by some unknown person strangling her with a ligature, the risk and child protection issues in respect of her surviving sister and brothers cannot be over stated. Traumatic though a fresh trial would be, it cannot be viewed as other than a proportionate outcome if, as they say is their intention, the local authority pursues the case.

Postscript

[64]A number of other issues arise in this case. In particular the local authority criticise how the judge dealt with the possibility of an unknown intruder and, on paper, there is a substantial legal argument as to the impact of the inclusion (or otherwise) of unknown intruders and non-carers (namely S’s brothers) in the potential pool of perpetrators. It has not been either necessary or appropriate to explore these additional matters given that in my judgment the matter must be remitted to a first instance judge.[65]Further, following the dismissal of the local authority application Dr Cary arranged for the post mortem reports to be peer reviewed. An application was therefore made to adduce as fresh evidence reports prepared by a forensic pathologist and a paediatric forensic pathologist. The court read each of these reports debene esse. Again, given that the court has remitted the matter, no further reference is made to those reports save to say permission to adduce them by way of fresh evidence is refused as they do not, in my judgment, satisfy the second limb of the test in Ladd v Marshall [1954] 1WLR 1489 as it cannot, at this stage, be said that the evidence, “if given, it would probably have an important influence on the result of the case”.

Conclusion

[66]In those circumstances the local authority appeal is allowed and the judge’s order is set aside. The respondent’s notice is dismissed and the application for additional evidence refused.[67]I agree.

Senior President of Tribunals

[68]I also agree.

Cited in 34 later judgments

and 25 more of the most senior