A Council v B & Ors [2007] EWHC 2688 (Fam)

[2007] EWHC 2688 (Fam)

Case No ME06C00128

IN THE HIGH COURT OF JUSTICE

FAMILY DIVISION

Venue Royal Courts of Justice, Strand, London, WC2A 2LL

Date 11/12/2007

Before

THE HONOURABLE MR JUSTICE CHARLES

Between

A CouncilApplicant

B and OthersRespondents

Jacqui Gilliatt & Judith Pepper (instructed by A Council) for Local Authority

Judith Rowe QC & Kevin Jackson (instructed by Pearson & Co.) for Mother

Marianna Hildyard QC & Isabelle Watson (instructed by Gregory Rowcliffe Milners&Church Bruce) for Father

Pamela Scriven QC and Martha Monday (instructed by Davis Simmons & Donaghy) for R

Stephen Cobb QC and Stuart Fuller (instructed by Stantons) for Guardian ad Litem

Hearing Hearing dates: 12, 13 and 14 November and 7 December 2007

Judgment

Charles J :

[1]I have already given a lengthy judgment in this case. This judgment relates to the hearing at which the points I raised in Schedule A to that judgment were considered. That Schedule, in an amended form, is also attached to this judgment. The amendments include typographical errors and a bigger change in respect of the test to be applied in making a finding exonerating a person alleged to have inflicted harm. Schedule A as amended and attached to this judgment should replace Schedule A to my earlier judgment. This judgment is also given in public.

[2]In my lengthy judgment (and its schedules) I made a number of findings to the civil standard that establish the existence of the threshold and warrant a risk assessment on the basis of past inflicted harm (found to the civil standard). The points raised in Schedule A flow from my findings set out in paragraph 28 thereof, relating to the allegations of serious and prolonged sexual abuse made by R.

Overall conclusion

[3]I have concluded that, as argued on behalf of both Mr and Mrs B, I must direct that at the next stage of these proceedings the assessment of risk, and its management, and thus the welfare decisions are be made on the bases that: i) R was not sexually abused by Mr B (see in particular paragraph 10 of the speech of Lord Nicholls in Re O and N), and therefore (and in any event and in respect of all aspects of the welfare decisions to be made), ii) there is no risk that either: a) a child in the care of Mr B will be sexually abused by him, or b) Mrs B will do nothing effective to prevent a child in her care who she knows is being sexually abused, or who she ought to appreciate is being sexually abused, from suffering that abuse.

[4]I deal with the approach to be taken to determining whether a person should be exonerated of inflicting harm later in this judgment.

Some opening remarks

[5]Before turning to some of the authorities and arguments, I record that: i) I have analysed a considerable amount of conflicting evidence from members of this family who I found to be untruthful on many matters and, in general, to be unimpressive and unreliable witnesses, ii) the conclusions I reached were however based on evidence, facts found to the civil standard, undisputed assertions, common ground and reasoning, and iii) I would not describe my conclusions relating to R’s allegations of sexual abuse namely: a) that there is a real possibility that R was the victim of sexual abuse as (or substantially as) she alleged, and b) that, if that sexual abuse took place, it is more likely than not that Mrs B either(i) knew that this was happening and did nothing about it, or

(ii) saw and heard things that would have indicated to any reasonable adult that R was being sexually abused by Mr B, or that there was a very serious prospect that this was the case, and did nothing about it, apart from, after April 2006, making threats to accuse Mr B of such abuse, (my complicity finding against Mrs B), as the product of my suspicions or (lingering) doubts.

[6]I hope that point (iii) is not the product of me being over sensitive. I recognise that it is the description used by Lord Nicholls to describe the position reached by the trial judge in Re H and R

[1996] AC 563

[1996] 1 FLR 80

, who is quoted as saying that: “This is far from saying that I am satisfied that the child’s complaints are untrue. I do not brush them aside as the jury seem to have done. I am, at the least, more than a little suspicious that [Mr R] has abused her as she says. If it were relevant, I would be prepared to hold that there is a real possibility that her statement and her evidence are true, nor has [Mr R] by his evidence and demeanour, not only throughout the hearing, but the whole of this matter, done anything to dispel those suspicions ---- ” (see FLR report 83C) So there the trial judge refers to his suspicions. I do not. Rather, applying the unanimous approach in Re H and R,that conclusions have to be based or facts found (admitted or common ground) and reasoning, I have reached conclusions that the test or standard of proof “more likely than not” has not been satisfied, but the test or standard of proof “real possibility” has been satisfied.

[7]As I made clear during the hearing I would, I also record that in the absence of authority requiring me to reach, and then act on, a different conclusion I would have concluded applying the statutory language (as interpreted by the courts), that there is: i) a real possibility, in the sense of one that it cannot sensibly be ignored having regard to the nature and gravity of the feared harm (the s. 31 test), and ii) a risk (the s. 1(3)(e) test) that a child in the care of Mr B will be sexually abused by him, and that Mrs B will do nothing effective to prevent a child in her care who she knows is being sexually abused, or who she ought to appreciate is being sexually abused, from suffering that abuse.

[8]I would have reached and based those findings as to the existence of risks on the evidence, the facts found by me to the civil standard (undisputed facts and common ground) and the reasoning set out in my earlier judgment: i) that favour the conclusion that sexual abuse as (or substantially as) alleged by R took place, and thus, also my conclusion that it is a real possibility that it took place, and ii) that found my complicity finding against Mrs B.

[9]In my view, in many contexts, a finding that a risk exists can rationally, logically and in accordance with the relevant legal policy be based on a conclusion that that there is a real possibility that an event has occurred in the past (and thus on the facts and reasoning relied on to reach that conclusion taken alone, or together with that conclusion). This is, for example, recognised in paragraph 13 of the speech of Lord Nicholls in Re O and N; Re B

[2004] 1 AC 523

[2003] 1 FLR 1169

and by the conclusions reached by the House of Lords in that case and in Lancashire County Council v B

[2000] 2 AC 147

[2000] 1 FLR 589

. Those conclusions are to the effect that where a judge finds a child has suffered significant harm at the hand of his parents, or a child minder, but cannot say which of them is more likely than not to have been the perpetrator, and thus whether either of the parents inflicted the harm, the risk that the harm was caused by either or both of the parents(a) satisfies the statutory threshold in s. 31, and

(b) can be taken into account in deciding what care plan should be approved and what order should be made.

[10]Significant factors underlying these decisions, based on legal policy, are(a) that inflicted significant harm to a child has been established,

(b) the interpretation of the attribution provisions in s. 31(2)(b)(i),

(c) that there is a prospect that an unidentified, and unidentifiable, carer may inflict further injury or harm on a child he or she has already severely damaged, or on another child, and

(d) that there is a real possibility that one or both of the parents is/are the unidentified perpetrator(s). In Re O and N the pool of possible perpetrators did not extend beyond the parents but reading the two cases together it seems to me (and was accepted by counsel) that, if it that pool had extended to include a child minder, the same result would have been reached and thus, at the second or welfare stage, the risk assessment, the care plan the court should approve and the order that the court should make, would have been carried out and determined on the basis that there was a real possibility that one or both of the parents inflicted the established harm.

[11]So that risk, namely that parents, within the pool of possible perpetrators of the established harm, may harm a child in the same (or a similar) way in the future, is based not on a finding that it is more likely than not that a parent inflicted that harm in the past, but on the conclusion (based on evidence and facts found to the civil standard etc.) that there is a real possibility that he or she did so.

Representation and the position of the parties

[12]When giving directions I indicated that, if the parties did not wish to argue the points I raised in Schedule A, I would consider inviting argument from a friend of the court. The helpful skeleton arguments covered the points I had raised and some other points. At the start of the hearing I was told that the common position of all counsel was that as a matter of precedent I must take the course set out in paragraph 3 above.

[13]The position of the local authority, R and the Guardian was that they would like the court to take into account my findings relating to the allegations of sexual abuse (and risks based thereon) at the welfare stage but, through their counsel, they recognised that, applying precedent, I was precluded from doing so. Their position was therefore that the House of Lords and the Court of Appeal have drawn the relevant line, or set the relevant test, based on legal policy, wrongly; but I could not change them.

[14]The parents through their counsel took the same stance on precedent but also strongly argued that the line or test set by the House of Lords and the Court of Appeal was correct.

[15]After some discussion, and amongst other things to avoid the delay of inviting a friend of the court to appear, leading counsel for the Guardian, in my view helpfully and properly, agreed that he would advance such arguments, as he felt he could, to support the conclusion that I could give directions that the next stage should include assessments based on my findings of real possibility and the existence of the risks set out in paragraph 7 above. In those circumstances, I directed that leading counsel for the mother and then the father should address me, followed by leading counsel for the Guardian. I then heard short additional submissions from leading counsel for R and counsel for the local authority.

Precedent

[16]It was of course clear, and common ground, that both I and the Court of Appeal are bound by decisions of the House of Lords and the Court of Appeal. I was referred to Kay v Lambeth London LBC

[2006] 2 AC 465

, [2006]4 All ER 128 and in particular to paragraphs 40 to 45 of the speech of Lord Bingham.

The authorities that bind me

[17]These are: Re H and R, Re M and R (Child abuse: evidence)

[1996] 2 FLR 195

and Re O and N.

[18]In particular, in my view (in agreement with Black J in A County Council v T

[2004] EWHC 1118 (Fam)

at paragraph 418) paragraphs 38 to 40 and 45 of the speech of Lord Nicholls in Re O and N (and thus a unanimous House of Lords although perhaps strictly obiter) have the result that I am bound by the ratio of the decision of the Court of Appeal in Re M and R in which, it appears, Connell J made similar findings to the ones I have made in this case.

[19]Further, and in any event, in my judgment given the force of those paragraphs in the speech of Lord Nicholls in Re O and N, it would be wrong for me on the basis of(a) arguments mentioned in Schedule A, as developed before me,

(b) arguments by reference to the approach under s. 1 in private law cases (when there is no threshold requirement) and thus, for example, as to how family disputes on contact should be dealt with in a case like Re H and R,

(d) other arguments, to try to plot a path which enables me to distinguish the earlier cases and set a different approach, or a different approach at the welfare stage in a case in which the jurisdictional threshold (and thus the gateway to risk assessment) is satisfied without reference to an unproved allegation. Not least, this is because a proper consideration of those arguments, and the setting of a different approach, would be considerably hampered if Re H and R cannot be revisited, and any such different approach set at first instance would, or might, cause some confusion or uncertainty.

The upshot of that conclusion

[20]This means that in this case as a matter of legal policy, and precedent, the court (and thus assessors and the local authority) may not infer or find (or proceed on the basis) that any of the subject children are at risk of suffering the harm relating to sexual abuse referred to in paragraph 7 hereof. This is because that policy, and precedent, excludes me from making those findings on the basis set out in paragraph 8, and in my view there is no other way of establishing those risks.

[21]This means that, if the sexual abuse did not take place, the family are protected from steps being taken on a false premise. But if it did, it is primarily the children who suffer the consequences of no consideration being given to steps being taken to protect, or seek to protect, them from those risks.

Further argument

[22]I was invited to record my views on arguments that could or would be advanced to found the result that the conclusion I have decided and accepted I am bound to reach by the existing authorities is wrong and thus, for example, arguments put to me that there are gaps and flaws in the reasoning in Re M and R.

[23]In my view, I should resist that temptation and therefore decline that request for a number of reasons. Those reasons include the following(a) it seems to me that it is for the parties to advance such arguments,

(b) I am bound by and must apply earlier authority,

(c) I have already said enough in Schedule A, and in Birmingham City Council v H and S [2005] EWHC2885 to prompt such arguments,

(d) others have also commented on the arguments and

(e) the arguments based on the practical effects of any change that were advanced before me should be considered in the light of information from those said to be affected.

[24]I only add that in respect of the arguments relating to practical effects, and the likely attitudes of local authorities and assessors, it seems to me that the respective roles, duties and powers of the court and the local authority (and thus the divisions of responsibility between them) as to the care plan, and thus the risk management that should be put in place if a public law order is made, needs consideration (see In re S; In re W

[2002] 2 AC 291

[2002] 1 FLR 815

Exoneration

[25]I return to this because I was told that there is no existing authority on the test to be applied.

[26]In oral argument it was accepted that the correct test, and thus the correct approach to be taken in determining whether a person should be exonerated of inflicting harm, was set out in paragraph 96 of Schedule A to my first judgment (which should be read with, in particular, paragraphs 14, 26, 27, 29, 95 and 97 thereof). After I had prepared this judgment counsel for the Guardian, and other parties, indicated that they were unclear as to the meaning and effect of that paragraph. I am grateful for their comments and, after an attempt at making small alterations to provide clarity, I have decided to make more wholesale alterations, and to replace paragraph 96 with paragraphs 96 to 99 (set out below and in the schedule attached hereto, which, as I have indicated earlier, should replace Schedule A to my first judgment). They are as follows:

“96. On the law as it stands, it seems to me that: i) a positive finding of exoneration, like a finding that harm has been inflicted, has to be based on the civil test, namely more likely than not, ii) in a case such as this, where there is a stark choice, a finding of exoneration is the same as one that the alleged abuse did not take place and is thus a mirror image of a finding that it did, iii) if such a finding is made, then the consequences of the legal policy set out in paragraph 10 of the speech of Lord Nicholls in Re O & N apply to it with the results that the real possibility that the conclusion may be wrong (which is inherent in the test) is ignored and the finding made “on the more likely than not” test is treated as a definite fact, because it is treated as something that definitely happened or did not happen, iv) this has the result that assessments, and decisions by the court and the local authority, proceed on the basis that it is a definite fact that the person exonerated did not act as alleged (and therefore in this case that Mr B did not sexually abuse R, that Mr B’s denial of R’s allegations are true, and that her allegations are untrue), and v) this is the mirror image of the position if a finding was made that it was more likely than not that Mr B had sexually abused R as she alleges. Then the court and the local authority would proceed on the basis that it is a definite fact that such sexual abuse took place, that R’s allegations are true and that Mr B’s denials are untrue. 97. In a case where there is potentially more than one perpetrator a finding exonerating a person of inflicting harm would often have two stages. The first would identify the pool of possible perpetrators and the second would involve the issue whether the actual perpetrator can be identified from the pool. At the first stage the test to be applied is the “real possibility test”, at the second the test is the “more likely than not test”

. As I have indicated (see paragraph 14 of this Schedule), if it can be said that it is not a real possibility that A inflicted harm on B that conclusion would clearly found one that it is more likely than not that A did not do so. So, at the first stage, a finding excluding a person from the pool, on the basis that there is no real possibility that he or she inflicted the relevant harm is also a finding that exonerates that person. Following the identification of the pool the court goes on to see whether a finding can be made that it is more likely than not that a person (or persons) within the pool did not inflict the relevant harm. If it can, any such person is excluded from the pool and exonerated. When the pool is reduced to two, or always comprised only two, a finding that it is more likely than not that one of them inflicted the relevant harm is the mirror image of a finding that it is more likely than not that the other did not. So one is found to be the perpetrator and one is exonerated, applying the “more likely than not test”. 98. In a case such as this one where, if the alleged harm was inflicted there is only one possible perpetrator, it may be that an examination of the evidence founds a conclusion that there is no real possibility that that harm was inflicted. Such a conclusion would exonerate the person accused of inflicting the harm because the finding that the harm was not inflicted would be based on (or alternatively he or she would have satisfied a) higher test than the “more likely than not test”. When, as in this case, such a finding cannot be made and both the allegation and the denial are therefore real possibilities a finding that the harm was inflicted or, its mirror image that it was not and therefore the person accused is exonerated, is based on the more likely than not test. 99. As I have explained, in my view, an inability to find that it is more likely than not that the alleged inflicted harm occurred does not equate to a finding that it is more likely than not that it did not occur, and vice versa. To reach a conclusion on a stark choice between two real possibilities that one of them is more likely than not to be correct, the court has to be able (on the evidential approach set out in Re H and R) to penetrate with sufficient clarity, the competing factors and the relevant uncertainties to reach that “more likely than not” finding. Sometimes it will be able to do this and therefore reach a conclusion based on that test that a person inflicted harm, or that the person alleged to have inflicted harm did not do so, and therefore should be exonerated. Sometimes, as is the position in this case in respect of the allegations of sexual abuse made by R against Mr B, it will not.” i) a positive finding of exoneration, like a finding that harm has been inflicted, has to be based on the civil test, namely more likely than not, ii) in a case such as this, where there is a stark choice, a finding of exoneration is the same as one that the alleged abuse did not take place and is thus a mirror image of a finding that it did, iii) if such a finding is made, then the consequences of the legal policy set out in paragraph 10 of the speech of Lord Nicholls in Re O & N apply to it with the results that the real possibility that the conclusion may be wrong (which is inherent in the test) is ignored and the finding made “on the more likely than not” test is treated as a definite fact, because it is treated as something that definitely happened or did not happen, iv) this has the result that assessments, and decisions by the court and the local authority, proceed on the basis that it is a definite fact that the person exonerated did not act as alleged (and therefore in this case that Mr B did not sexually abuse R, that Mr B’s denial of R’s allegations are true, and that her allegations are untrue), and v) this is the mirror image of the position if a finding was made that it was more likely than not that Mr B had sexually abused R as she alleges. Then the court and the local authority would proceed on the basis that it is a definite fact that such sexual abuse took place, that R’s allegations are true and that Mr B’s denials are untrue.

[27]Mr B did not seek a finding exonerating him and his counsel in their skeleton argument said:

“In the context of the existing law, since the court at the welfare stage cannot treat as proved facts which have not been proved to the civil standard, nor can it draw inferences as to the future from past events which are not proved to the requisite standard, nor can it treat the child as at risk on the basis of such facts, the standard of proof for exoneration does not need to be explored. If, however, the judge is satisfied that the individual did not do the things alleged on a civil standard of proof, he should say so. It is accepted that heightened cogency is necessary to enable a court to make a finding exonerating Mr B in this case and that on the facts as found no such finding can be made”

[28]This, in my view correctly, recognises that in this case Mr B cannot obtain a finding exonerating him.

[29]As appears from paragraph 96 of Schedule A, if such a finding had been made, in my view it follows from the existing approach in law that the next stage would be carried out on the basis that it was a definite fact that the alleged sexual abuse did not take place, and therefore that Mr B was telling the truth about the allegations of sexual abuse and R was lying about them.

[30]This passage from Mr B’s skeleton argument also demonstrates that on the law as it now stands: i) Mr B, and Mrs B, do not need such a finding to bring about the result that decisions as to what should happen in the upbringing of their children are to be made(a) on the basis that Mr B did not sexually abuse R, and therefore

(b) on a basis by reference to which it cannot be said that the risks referred to in paragraph 7 exist and fall to be taken into account, and therefore ii) it is the children, and in particular, N and A (because in R’s case the fact of her making the allegations can be taken into account in respect of her placement and contact) who take the risks referred to in paragraph 7.

[31]In this case there is also a complication because risks posed by, and the parenting abilities of, Mrs B fall to be assessed on the basis that although she asserts that Mr B did sexually abuse R as (or substantially as) R alleges (in the knowledge that this exposed her to the complicity finding against her that I made), the assessors, the local authority and the court will be proceeding on the basis that such sexual abuse did not take place (and therefore that that finding of complicity cannot stand, and no risks can flow from it).

Instructions to the Experts

[32]These have to reflect the conclusions in this judgment based on binding authority. It should also reflect my conclusions relating to exoneration. Before I wrote this judgment Counsel prepared a draft letter in the light of my indication that I had reached the conclusions set out above. What follows has regard to(a) that draft,

(b) discussion in court relating to it and

(c) written and oral submissions relating to a proposed draft of instructions to the experts circulated by me. It was agreed at the hearing that I would circulate such a draft.

[33]The main difficulties in settling such instructions relate to the approach that should be taken by the experts, the local authority and the court in applying the guidance given by Lord Nicholls in paragraphs 37 to 41 of his speech in Re O and N, read in particular with paragraphs 10, 24, 31, 32, 44 and 45 thereof. As to paragraphs 31 and 32, I accept that they do not have direct effect because they relate to the uncertain perpetrator cases, and thus to cases in which the House of Lords decided that the general rule referred to in paragraph 10 does not apply.

[34]The nub of the problem relates to how unproved allegations are to be taken into account when their existence is relevant.

[35]In my view this is a legal question and one that should be addressed in the instructions to the experts rather than simply left to them by ending the instructions after the fourth paragraph (set out below) as was suggested. If this was done the experts might take divergent approaches which may, or may not, be correct in law.

[36]As the allegations have not been proved to the civil (more likely than not) standard and are therefore to be treated as not having happened (see paragraph 10 of Lord Nicholls’ speech in Re O and N), an approach that could be taken is that Mr B should be treated as having told the truth, and R as having lied about the issue whether Mr B sexually abused R. If this approach was correct the position would be the same as that which follows from a finding that it was more likely than not that the alleged harm was not inflicted by Mr B and therefore that he should be exonerated. As indicated in paragraph 42 of Schedule A an assessment of risk and outcome on the basis that the alleged abuse is not a fact (because it has not been proved to the civil standard as required by Re H & R) is not the same thing as one on the basis that it is a (definite) fact that it did not happen (because it has been established to the civil, or a higher, standard that it did not happen). In my view correctly, it was not argued before me that this approach should be taken to unproved allegations.

[37]In my judgment the guidance in Re O and N that at the welfare stage an unproved allegation can be taken into account as such, and as no more than that, as part of the relevant background (see paragraphs 38 and 41 of Lord Nicholls’ speech) means that, when doing so, the points(a) that the allegation is unproved, and thus, in a case such as this,

(b) that its mirror image (i.e. that the alleged harm was not inflicted) has also not been found to the required (more likely than not) standard, can both be taken into account. In my view the reality that flows from that approach, and which therefore falls to be taken into account, is that there is no finding that establishes whether it is the accuser or the accused who is telling the truth on the issue whether the abuse occurred. In my view that reality means that it should be accepted that either of them could be telling the truth about those allegations and the court, the local authority and the assessors are not required to proceed on the basis that one of them is telling the truth and the other is lying about the allegations.

[38]Put another way, in my view the guidance in Re O and N that unproved allegations can be taken into account as part of the relevant background at the welfare stage founds a limited non-application, change or qualification to the application of the legal policy set out in paragraph 10 of Lord Nicholls’ speech therein.

[39]I accept that there is some tension between this conclusion and(a) the approach that the existing cases dictate is to be taken to the existence of a risk that can only be founded on the establishment of inflicted harm (which is based on the legal policy set out by Lord Nicholls in paragraph 10 of his speech in Re O and N), and

(b) the common ground between the parties that save in this limited context existing authority, and thus that policy, dictate that all must proceed on the basis that Mr B did not sexually abuse R because it has not been proved that it is more likely than not that he did.

[40]But in my view this tension inevitably flows from the ability to take into account an unproved allegation at the welfare stage as part of the relevant background because in that context the allegation is being considered as an unproved allegation rather than as something that did not happen (per the approach under the legal policy in paragraph 10 of Lord Nicholls’ speech in Re O and N). The reality which flows from that, and which can therefore in that limited context be taken into account is, as I have said, that it has not been established who is telling the truth about the allegation, even though for other purposes the event alleged is to be treated as something that did not happen.

[41]In my view therefore the instructions to the experts should include the following passage (under the heading “Instruction” in the draft letter prepared by Counsel): You will have seen from the summary set out in the paragraphs above that one of the central issues in the case was whether [R] had been sexually abused by [Mr B]. You will also have seen that Mr Justice Charles was not able to find to the required standard of proof (more likely than not) that [R] was so sexually abused, or that she was not. Although the Judge concluded that there was a real possibility that [R] was so abused, your assessment must proceed (in line with guidance from the case-law) on the basis that [R] was not sexually abused by [Mr B], and therefore (and in any event and in respect of all aspects of your assessment) there is no risk that either: i) a child in the care of [Mr B] will be sexually abused by him, or ii) [Mrs B] will do nothing effective to prevent a child in her care who she knows is being sexually abused, or who she ought to appreciate is being sexually abused, from suffering that abuse. You are not therefore being asked to assess whether such risks exist and must proceed on the basis that they do not. However, part of the background, and relevant as such, is the fact that [R] has made her allegations of sexual abuse and they have not been proved, or found to be false, to the required standard (more likely than not). If the court had been able to determine that issue to that standard you would have been asked and required to carry out your investigation on the basis that that finding was a definite fact which determined which of [R] and [Mr B] was telling the truth. The inability of the court to make one of those mirror findings to that standard has the limited effect that when you are considering the impact of [R’s] allegations of sexual abuse against [Mr B] as unproved allegations, and no more than that, you can take into account that it has not been established which of them is more likely than not to be telling the truth about those allegations. This means that in this limited context the existing case law does not require you to proceed on the basis that it is either [Mr B] or [R] who is necessarily telling the truth or lying about those allegations. Rather you should recognise in this limited context that it could be either of them who is telling the truth about those allegations. For the avoidance of doubt it is stressed that:(i) You should not make any attempt to determine whether it is more likely that it is [R] or [Mr B] who is telling the truth about those allegations.

(ii) You must not consider, assess, reach or seek to reach views on, that credibility issue and thus on whether or not such sexual abuse took place.

(iii) Your assessment must proceed on the basis as set out above namely that [R] was not sexually abused by [Mr B] and therefore (and in any event and in all aspects of your assessment) there is no risk that a child in the care of [Mr B] will be sexually abused by him, or that [Mrs B] will do nothing effective to prevent a child in her care who she knows is being sexually abused, or who she ought to appreciate is being sexually abused, from suffering that abuse. For the avoidance of doubt it is stressed that:

The orders I will make

[42]I will order that the assessments and the welfare stage are to be carried out on the basis set out in paragraph 3 hereof and that the letter of instruction is to include the passage set out in paragraph 41 hereof.

Appeal / miscellaneous

[43]It is common ground that the cases by which I have concluded I am bound would also bind the Court of Appeal. This is one of reasons why I would have certified that this case as fit for “leapfrog” if the parties had agreed to this course being adopted.

[44]Mr B does not consent to this course because, through counsel, he has throughout argued that: i) the law is settled, clear and correct, and goes on to argue that ii) the points raised are not now of general public importance, and a sufficient case for an appeal to the House of Lords does not exist, because the House of Lords, with full knowledge of the policy implications, have dealt with and resolved the issues twice in recent times in the cases I have referred to and in particular in Re H and R, and Re O and N.

[45]On behalf of Mr B it is accepted that the critical issue is whether the House of Lords should revisit this area of the law. His answer is “no”, and therefore he maintains that he is not in a position to agree that there is a sufficient case to appeal to the House of Lords. For the same reasons he argues that I should not give permission to appeal to the Court of Appeal.

[46]Mr B’s refusal to give his consent to leapfrog means as suggested on his behalf that the appropriate procedural route is for those who wish to appeal to do so to the Court of Appeal and to concede the appeal before the Court of Appeal and seek permission to appeal to the House of Lords (which Mr B would oppose).

[47]All other parties would have consented to leapfrog. In Mrs B’s case she would have done so to avoid delay whilst making it clear that she asserts, through counsel, that the present law is settled, clear and correct

[48]In my view the issues raised in this, and my earlier, judgment as to(a) the establishment of the threshold for interference by public authorities in the lives of a family, and

(b) the assessment and management of risk, and thus the underlying problem described in paragraphs 31 to 46 of Schedule A, merit re-assessment by the House of Lords. I add that I am not the only judge of the Family Division who holds this view (see for example the NYAS lecture by Ryder J, to be published by Family Law, during which he acknowledged contributions from others).

[49]I also add that in my view the problems encountered in drafting the instructions to the experts, and the tension referred to in paragraph 39, are an indication that the existing approach set by the House of Lords merits reconsideration as to how it is to be applied at the welfare, and thus the risk assessment and management, stage of public law proceedings (and in the context of private law proceedings). Guidance as to this could be given by the Court of Appeal.

[50]I therefore give permission to appeal to the Court of Appeal. For the avoidance of doubt that permission extends to any appeal against the terms in which I have directed that the experts are to be instructed and the reasoning that underlies that direction.

Miscellaneous

[51]It was pointed out to me that seeking permission to, and bringing an appeal, impose financial burdens on the public purse. I recognise this, but in my view the issues of public and general importance that would be covered by such an appeal merit such funding, and I express the hope that the local authority may be able to obtain some financial support from other local authorities.

[52]If an appeal proceeds representation would have to be considered (given the overlap of interests and arguments), as would the notification of bodies who might wish to be heard.