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Once you have eliminated the impossible

 

Is Sherlock Holmes’ maxim applicable to fact finding hearings? The Court of Appeal take a look

 

A (Children) [2012] EWCA Civ 1278

 

As all Holmes fans know, the Great Detective opined  “Once you have eliminated the impossible, whatever remains, however improbable, must be the truth”  *    [see footnote]

 

 

[Gratuitous Cumberbatch photo, for the female followers of this blog, including the Great Fiancee]

In this finding of fact hearing, involving a fatality to a child, the father, who ended up with the finding of fact being made against him, appealed in part on the basis that the Judge had approached this sort of formulation.

 

http://www.familylawweek.co.uk/site.aspx?i=ed102912

 

The Court had determined that the child had, on the balance of probabilities, suffered an injury.

 

It had then determined that the only 3 possible perpetrators were the mother, the father or an elder child ‘C’.   

 

The father claimed that what then happened was in effect that the Court ruled out mother and C as potential perpetrators and thus came to the conclusion that the father, being the remaining suspect must be the perpetrator, rather than carrying out the identical form of scrutiny.

 

(i.e, that had the Judge considered the order of suspects differently, and approached matters with a fresh eye, he might have ruled out father, then C, leaving mother; or any other sequence.  And that it just so happened that this order of events left father as ‘last man standing’. It was unfair to father to not have the same impartial eye testing whether he should be ruled out, and the burden effectively shifting to being for him to provide evidence why he WAS NOT the perpetrator)

 

 

It is probably fair that I give you now, Lady Justice Black’s concluding paragraph

 

23. I simply add this: that this is a case which we have considered very much on its own facts; nothing that I have said should be taken in any way to alter the established formulation of the law applicable to cases such as this. 

 

So perhaps the case is useless for anything other than determining the appeal that was before them, but I respectfully think that it is of interest because the precise forensic approach of how the Court approach the ‘whodunnit’ element of a finding of fact hearing, having established that something was done, and who the potential perpetrators are, is very important, and anything that adds to our pool of understanding as to the right or wrong way to go about it is therefore useful.

 

 

This is how the Court of Appeal record the Judge’s decision-making process

 

4. So this was a heavy trial for the judge, and it is manifest that all its concentration was upon the facts, the investigation of all relevant facts and the establishing on the balance of probabilities of the crucial facts.  That the law played no great part in the process is, I think, demonstrated by the fact that the judge deals with it in two short paragraphs.  In paragraph 28 he said:

“In these proceedings a party seeking a finding of fact bears the burden of proving it on the balance of probability: Re B (Children) (Care Proceedings: Standard of Proof) [2008] UKHL 35.  Accordingly, where I record facts or make findings, I am satisfied that they are more probable than not.”

5. In he following paragraph 29 he only added:

“Where a number of individuals might be responsible for a known injury, the test for whether it is established that a particular individual was involved is whether there is a real possibility they caused the injury: Re S-B Children [2009] UKSC 17.”

6. So, moving on from that early and brief direction, the judge explains himself essentially in paragraphs 170 and following under the subheading “Responsibility for B’s injuries”.  He considers first the position of B’s mother. He sets out in paragraph 170 under seven numbered paragraphs the matters that he was taking into account in reaching the conclusion that B was in good health when mother left the house and that he was injured in her absence. Having reached that conclusion it is not surprising that in paragraph 171 he said:

“I therefore find that M was not present when B was injured, and further that she does not know how the injuries occurred.”

7. In paragraph 172 he turned to consider the father’s position, saying:

“I turn to consider whether F’s explanation that C caused B’s injuries is credible.  If it is not, the inescapable conclusion is that they were caused by F.”

And then in paragraph 173 he set out what he described as being the combination of a large number of circumstances necessary for C to have injured B in the way that the father suggested.  There are 22 subparagraphs of such factors.

8. In paragraphs 174 and 175 he considered the father’s credibility generally as well as specifically, and he concluded that the father was an unconvincing witness.  However, in paragraph 176 he said:

“176. In assessing F’s evidence, I remind myself that although I disbelieve it, the consequence is not that he is inevitably responsible for the injuries.  Lies may be told for other reasons.  The burden of proving responsibility remains on those that allege it.”

9. In paragraph 177 he considered possible explanations for untruthfulness that would not be in any way probative of causation.  In paragraphs 178 and 179 he then states and explains his fundamental conclusion.  He said:

“178. My ultimate conclusion in relation to C is that there is no real possibility that he caused B’s injuries.  A possibility that is remote on the medical evidence alone is vanishingly improbable in the light of the evidence as a whole.  I reject F’s case.

179. I find that F caused B’s injuries.  I reach this conclusion by eliminating the only possible alternative and by rejecting F’s account.”

 

 

The father submits that paragraph 179 is effectively a reversal of proof, and placing the burden on the father to show that he was not the perpetrator, rather than on the Local Authority to prove to the requisite standard that he was.

 

 

The Court of Appeal considered that the argument was skilfully drawn, but rejected it nonetheless   (largely because of the way that the Judge at first instance had balanced matters)

 

10. Now Mr King’s principal criticism is of paragraph 172, which I have already cited.  He submits that this amounts to an implicit reversal of the burden of proof.  The submission is skilfully advanced and is certainly worthy of careful consideration, but it has to be taken in the context of the passage as a whole, all the paragraphs from 172 to 179, the relevant passages of which I have already cited.  It seems to me that what the judge was saying in paragraph 172 was that he had to consider whether the father’s explanation that C caused B’s injuries was a real possibility — was it plausible? — and that was certainly a permissible and indeed a sensible approach.

11. Mr King has submitted that essentially the judge has pinned the label of responsibility on the father by a process of elimination.  He has first eliminated the mother, then he has eliminated C, and therefore he has, as it were, reached the only remaining possible conclusion.  I see that that submission is also open to Mr King given that the judge has specifically said:

“I find that father caused B’s injuries. I have reached this conclusion by eliminating the only possible alternative.”

12. He might have put alternative into the plural but I do not think that that is fair to the judge overall.  He had to reach a realistic conclusion; he had to be as specific as the evidence permitted; and overall it seems to me that the conclusion was well supported by evidence and was acceptably reasoned.  Mr King has said that there was no medical evidence to force the judge’s conclusion and that there was no other evidence to force the judge’s conclusion, and that accordingly the judge should more safely have announced that there was a real possibility that the father committed the injury, but no more than a real possibility. 

13. That is essentially putting his primary submission in other words, and it does not lead me to doubt the conclusion that I have already expressed on his primary submission. 

14. It will be, I have no doubt, Peter Jackson J who conducts the second stage of this trial.  It may be that he will be persuaded to admit the police records that Mr King highlights.  In passing, I note that there seems as yet to be no explanation as to why they are belatedly produced.  That is something that requires no further speculation.  There can be no doubt at all that the kick injury inflicted by C on the carer is a subsequent development.  There can be no doubt at all on the authorities that the judge at the second trial is not only entitled but bound to have regard to that subsequent development.  Authority is equally clear that it is open to him to reconsider his earlier stated findings of fact, if he is persuaded that the subsequent development is sufficiently material.  With that observation I would dismiss this appeal.

 

It does seem to me, on the basis of that, that IF the Judge had approached it in the way father was suggesting of :-

 

  1. I have found that the child was injured
  2. I have found that this injury could only have been caused by M, F or C
  3. I have found that it could not have been caused by M
  4. I have found that it was not caused by C
  5. Therefore it was caused by F

 

(rather than 5 – “my analysis of the evidence given by F and the features of the case are such that I find F caused the injury”)

 

that this would have given rise to a successful appeal.

 

And therefore, the Holmes maxim DOESN’T apply to the law. The Court have to consider all of the various possibilities   (That it was M, that it was F, that it was C, that it is one of them but it is not possible to say whom, that it was one of two of them but that “X” is excluded)  and determine which is the correct finding, based on the evidence.

 

As we saw from Justice Mostyn’s decision earlier this year, https://suesspiciousminds.com/2012/05/04/a-county-council-v-m-and-f-2011/

   it is peculiarly lawful for the Court to examine the two possible explanations for the child’s injuries and to discount both as being inherently implausible and fall back on the burden of proof as being the determining factor.   The authority that gave rise to that, was of course, a shipping case. Shipping cases nearly always are at the bottom of any important legal principle  (that or runaway milk horses or pensioners consuming ginger ale)

 

[All of the principles in Re SB   http://www.familylawweek.co.uk/site.aspx?i=ed47645  still apply, of course – that it isn’t for the judge to dance on the head of a pin in trying to establish who caused the injury and if the evidence does not allow for a definitive finding, the Court should not exonerate one parent simply because another seems more likely. ]

 

i) “If the evidence is not such as to establish responsibility on the balance of probabilities it should nevertheless be such as to establish whether there is a real possibility that a particular person was involved. When looking at how best to protect the child and provide for his future, the judge will have to consider the strength of that possibility as part of the overall circumstances of the case”; ii) judges should avoid attributing the relative probability of who is responsible for harm where they are unable to identify a perpetrator and iii) when a perpetrator is identified there is a risk that the judge gets it wrong but that risk cannot be used to conclude that there is a risk to the child. However it was also

“Important not to exaggerate the extent of the problem. It only really arises in split hearings…… In a single hearing the judge will know what findings of fact have to be made to support his conclusions both as to the threshold and as to the future welfare of the child.”

 

 

 

 

* The Great Detective, when making this maxim, probably did not envisage just how improbable the improbable explanations for fictional crimes could become. My personal favourite, Harry Stephen Keeler, for example, managed to concoct an explanation for a murder that involved a strangler midget who disguises himself as a baby, and who descended in a portable personal helicopter to commit a murder in which a man was found dead in the middle of a field of fresh snow with only his own footprints leading to or from his body. 

 

http://home.williampoundstone.net/Keeler/Home.html 

 

I do heartily recommend Mr Keeler if you are a little jaded with traditional murder mysteries and want to glimpse what life would be like if you were somehow able to turn your brain to a totally different angle.

 

I am also reminded of the lovely Raymond Chandler anecdote, where in the midst of filming  “The Big Sleep”,  the director, Howard Hawks, telephoned him and frantically asked,  “Mr Chandler, I have a problem in the film. I simply can’t work out who killed the chauffeur”  and Chandler had to confess that he too had no idea either.  Read the book, it really is completely unresolved. Other than that, it is a flawless piece of writing, which dazzles on every page.

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About suesspiciousminds

Law geek, local authority care hack, fascinated by words and quirky information; deeply committed to cheesecake and beer.

14 responses

  1. “Pilate saith unto him, What is truth? And when he had said this, he went out again unto the Jews, and saith unto them, I find in him no fault at all.”

    I think the crucial point may be that the result should not depend on the order in which the potential perpetrators are considered.

    And I’m reluctant to concede that the Holmesian analysis doesn’t apply here, possibly because I remain a romantic at heart.

    • You may be right – the point may be more subtle, that even after you examine all of the other possibilities and exclude them, the Court STILL needs to look at the one that is left and decide that it IS more likely than not on the evidence, not just that it MUST be what happened because it is all that remains.

      The Mostyn case is, I think, authority for the principle (at least in the FPC and the County Court) that the Court can sometimes just reject all of the propositions that are put before them and say ‘I don’t believe any of this, the burden of proof is on the LA, they haven’t proved their case’

      • I think your last point is a very important one, Sue. Though, at the risk of embarrassing myself by disclosing fundamental ignorance, why only in the FPC and CC?

  2. Quite simply a parent appearing before a family court can be branded a child abuser even after a criminal court has found them “not guilty” ! Worse still a parent such as the father in the case above can be condemned in a family court on the strength of hearsay even when he has never been charged with an offence let alone been convicted of it and subsequently can be deprived of all contact with his children.Surely child cruelty should be a police matter with no social workers or psychobabble charlatans involved; heard by criminal courts that give parents all the protections at present enjoyed only by the violent offenders that appear before them.This simple change in the system would eliminate most of the injustices that reach people like me by the hundred every month.

    • And whilst we wait for 18 months for the criminal trial, where does the child live? I’m not saying that your idea is entirely without merit, but if that’s our system, we need to cover two things :-

      (a) are we happy that it is very likely, but short of beyond reasonable doubt, that a child is being sexually or physically abused and has to stay at home with that abuser?

      (b) the criminal procedure is too cumbersome and too slow to deal with these cases in the timescales for children. So in the interim, what is to happen to the children? Does the adult get remanded?

      I don’t say that these aren’t solveable problems, but they are very significant ones. If we move our standard of proof for care proceedings from more likely than not, to something akin to criminal (I haven’t done criminal law for many many many years, so ‘beyond reasonable doubt’ is layman shorthand for what the more modern wording is) then society needs to understand and tolerate that this will leave some children at home being badly abused. You may think that is better than children being wrongly removed from parents, and that one is a price worth paying for the other.

      This is the central debate on child rescue versus family preservation, and it is pretty plain that the State just can’t get both those competing interests completely balanced (and only protect those children who need protection and leave alone those who don’t, because what you’re doing is making judgment calls and predictions about the future about a specific set of people and circumstances who are by their nature unpredictable)

      If what you mean is that children shouldn’t be removed from parents unnecessarily and without very compelling reasons, then we’re in agreement. We just disagree about whether that broadly happens now with some bad and tragic exceptions, or not (and we’re not going to agree on that, I’m afraid)

  3. I get on average 3 new calls per day,and the majority are from parents whose babies or young children have been removed for “risk of emotional abuse”.Yes emotional abuse does exist but never never can the risk of it justify the taking away of a baby from its mother and for adoption by strangers.As to delays,well there is no reason why family courts should not continue as they are now but governed by criminal court procedures and rules of evidence;wth no reason for the long delays envisaged by suespicious minds.
    This ,after all was how things worked before 1948 and the advent of social workers and it worked a lot better than the present system

    • Hi Ian, a very fair response. I just don’t encounter emotional abuse as being a reason for removal, but I don’t dispute the people who come to you. Different local authorities do have different approaches, right or wrong. In all of the places I’ve worked, children tend to be removed for chronic neglect which isn’t resolved with lots of effort, or physical injuries to children, or very unsuitable partners who parents won’t end a relationship with, or drug and alcohol misuse. I don’t see much emotional abuse (other than as an additional facet to those issues) and I don’t tend to put it in my thresholds. I can see that if the cases coming to you contain only emotional abuse and not those issues, that you would consider that the system was very flawed.

      • Just the likelihood, alone, of emotional abuse (which is what the post refers to) is rarely a reason for a final order but it is known. If the children have been exposed to DV / alchohol / drug addiction and traumatised by that, shouted at and locked in a cupboard (I’ve just been looking through my thresholds – it does happen) and develop an attachment disorder and if the parents can’t or change or won’t undertake or stick at therapy, if a further assessment with a new baby shows no change, it is possible that the baby would be removed on likelihood of emotional harm. What where one child has been sexually abused and the mother herself is too damaged to be able to separate from the abusing partner and has another baby?

        However I agree that in reality just the likelihood of emotional abuse is rarely an issue on its own.

        Consider where parents separate and one parent alienates the child from the other parent? I’ve known of cases where it gets so bad that the child is harmed because what one parent is telling it about the other parent so contradicts the child’s own perceptions that the child’s psychological development is damaged. In one case the child spent time in foster care until, after a huge amount of work, the other parent was able to take care of the child. That certainly doesn’t result in adoption but the point there is that the child is removed from the original carer. Not, I grant, on “likelihood” alone, of emotional abuse as this child clearly had been very damaged by this.

        It’s highly unlikely you would seek interim removal, but emotional abuse of a child and the likelihood of emotional abuse of a sibling might well result in separation from the birth family. is it less concerning if there is an extended family member who can care for the child? and if so, what are the options where there is no such family carer?

        I think that criminal standards of proof will not protect children, though my experience is that in practice the evidence is usually overwhelming, to the extent that the court is very sure.

  4. I should add the obvious point that I’m not referring to any particular case and the one that I did mention was a case dealt with by a friend of mine who is in private practice.

  5. As at 31/3/2011 the figure of children taken into care were as follows:-(nspcc figures)EM
    Physical abuse 4500;Sexual abuse 2300; EMOTIONAL ABUSE 12,100 !!
    Emotional abuse predicted by the type of highly paid charlatan/hired gun described by Professor Ireland in her report cannot be defended hence emotional abuse figures are nearly double those of sexual and physical abuse put together.
    Funny you never noticed that Suespiciousminds but I certainly did !

  6. I am afraid from personal experience phrases such as ‘risk of emotional abuse’, ‘puts own needs above…’ are not only common but used to take action in safeguarding even when no evidence at all, from records, actually suggests any abuse / harm. This will be the start of building up a ‘hearsay picture’ of events which might be followed by an ongoing witch hunt, much like those common in the media but conducted in secret.

    Local authorities defend themselves against criticism of their poor social work standards by ‘re-interpretation’ of information recorded in past records, which would not add up to even subjective evidence with forensic scrutiny- rarely undertaken.

    The worst is when complaints are made of social work misdemeanor you will find these social workers making false entries several months later to ‘hide’ their lies and incompetence. A social work director to whom a complaint was made regarding lies on files about the calls recorded by a social worker, which would have been 100% impossible for the client not to have known about, told the client to ‘prove it- sheer arrogance. An FOI request for proof that the call had been made by the local authority to the client’s land line was met with silence. This against ongoing complaints about the incompetent safeguarding work over years.

    The public indeed needs to be highly concerned at the powers given to those who misuse them frequently, because of low intellectual, (and sometimes moral), standards. Yet unsurprisingly the same are requesting the right to force entry into the homes of capacitated individuals- mirroring the scenario in child protection. Heaven help us all.

  7. I would also like to reply to the theory from Suespicious minds that if parents were protected by criminal standards of proof under criminal court guidelines then a lot of children would be left with abusers.The same argument was probably used when the criminal courts were reformed with the accused “innocent until proved guilty” “able to call witnesses and cross examine ” and trial by jury in serious cases.”A lot of criminals will go free “was the cry,”fewer innocents will end up in prison” was the telling retort ,and so it would be in the family courts that if criminal rules of procedure were introduced fewer families would be broken up needlssly and wrongly.

    • The whole system, driven by social services/workers, their paid experts and the legal team backing them, is based on the view of an extreme urgency to take action because we are dealing with children.

      In some cases this urgent action would be clearly obvious, in some cases prudent even if the situation is not entirely indicative of serious immediate harm, and in others unjustified as Ian rightly notes. But there are no rules for determining which should apply and how such determinations should be made by the court. So I suspect in the current climate of the potential for adverse publicity we know where the default position will lie. There will always be circumstances where one could not have predicted what happened.

      If a social work report is ‘sexed up’ with lots of narrative (which is not necessarily evidenced fact) littered with the favourite stock phrases this could be made to appear to be urgent. The lawyers and judges are rarely about to challenge or question and the parents are not allowed an equal input to seriously challenge. The legal people will not know the difference between what is recorded as fact by a social worker as opposed to a distortion of the actual situation to favour a judgement by the court- unless it stands out during questioning to gather information from other wider witnesses.

  8. Pingback: Once you have eliminated the impossible | Children In Law | Scoop.it

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