West Law Report

G v R & ANR

Last Updated: 5:49PM BST 25/06/2008
House of Lords Lord Hoffmann, Lord Hope of Craighead, Baroness Hale of Richmond, Lord Carswell, Lord Mance June 16, 2008
Basis of plea – Child sex offences – Criminal charges – Justification – Presumption of innocence – Proportionality – Rape – Right to fair trial – Right to respect for private and family life – Strict liability – Young offenders – Conduct falling within ambit of s. 5 and s. 13 Sexual Offences Act 2003 – Lawfulness of prosecutor’s decision to prosecute under s. 5 – Art. 6(1) European Convention on Human Rights 1950 – Art. 6(2) European Convention on Human Rights 1950 – Art. 8 European Convention on Human Rights 1950 – s. 13 Sexual Offences Act 2003 – s. 5 Sexual Offences Act 2003

FACTS

The appellant (G) appealed against his conviction for rape of a child under the age of 13 contrary to the Sexual Offences Act 2003 s. 5. G was 15 at the time of the offence, and the complainant was 12. She had originally complained that he had intercourse with her against her will. G was charged with the s. 5 offence. He offered to plead guilty on the basis that the complainant willingly agreed to have intercourse with him and that he believed she was 15 because she had told him so. The prosecutor was at first unwilling to accept that basis of plea, but then the complainant changed her account of the incident and decided she was content with G’s basis of plea. The prosecutor was invited to drop the case altogether but declined to do so. G appealed against his conviction and sentence, but only succeeded with respect to the sentence. The Court of Appeal certified two questions as being of general public importance, namely (i) whether a criminal offence of strict liability could violate the European Convention on Human Rights 1950 art. 6(1) or art. 6(2); (ii) whether it was compatible with a child’s rights under art. 8 to convict him of rape contrary to s. 5 in circumstances where the agreed basis of plea established that his offence fell properly within the ambit of s. 13 of the Act. G submitted that (1) the offence created by s. 5, interpreted as one of strict liability, was incompatible with art. 6(2), which provided that everyone charged with a criminal offence was to be presumed innocent until proved guilty according to the law. The European Court of Human Rights in Salabiaku v France (A/141-A) [1991] 13 EHRR 379 had stated that art. 6(2) required states to confine “within reasonable limits” presumptions of fact or law in criminal proceedings. The creation of strict criminal liability would always engage a consideration of compatibility with the presumption of innocence; (2) his right to respect for his private life had been violated because the prosecutor did not drop the charge under s. 5 and substitute one under s. 13. His conviction and sentencing for the s. 5 offence involved both a stigma and practical consequences which were disproportionate.

ISSUES

(1) Whether the offence created by s.5, interpreted as one of strict liability, was incompatible with art. 6(2).

(2) Whether G’s right to respect for his private life had been violated.

HELD (appeal dismissed) (Lords Hope and Carswell dissenting on the art. 8 issue)

(1) G’s argument read far too much into the wording of art. 6(2) and the court’s reasoning in Salabiaku. Article 6 was concerned with the procedural fairness of the system for the administration of justice in the contracting states, not with the substantive content of domestic law, Matthews v Ministry of Defence [2003] UKHL 4, [2003] 1 AC 1163 and R v G (2002) EWCA Crim 1992, [2003] 3 All ER 206 applied. When art. 6(2) referred to “innocent” and “guilty” it was dealing with the burden of proof regarding the elements of the offence and any defence to it; it was not dealing with what those elements were or what defences ought to be available. Salabiaku was not inconsistent with that analysis, Salabiaku considered. Section 5 was not incompatible with art. 6(2).

(2) It was compatible with a child’s rights under art. 8 to convict him of rape contrary to s. 5 in circumstances where the agreed basis of plea established that his offence fell properly within the ambit of s. 13. “Rape of a child under 13” still accurately described what G had done. Parliament had decided to use that description because children under 13 could not validly consent to sexual intercourse. G’s real complaint was that he had been convicted of an offence bearing the label “rape”. If that engaged G’s art. 8 rights at all, it was entirely justified. The state would have been open to criticism if it had not provided the complainant with adequate protection. It sought to do that by a clear rule that children under 13 were incapable of consenting to sexual activity, and treating penile penetration as a most serious form of such activity. That did not amount to a lack of respect for the private life of the penetrating male. Even if it did, it could not be an unjustified interference with that right to label the offence “rape”.

(3) (Per Lords Hope and Carswell) Where choices were left to the prosecutor they had to be exercised compatibly with the Convention rights. It was unlawful for the prosecutor to continue to prosecute G under s. 5 in view of his acceptance of the basis of G’s plea, namely that the complainant had consented to intercourse. As the offence fell properly within the ambit of s. 13, G’s conviction of rape under s. 5 was disproportionate and incompatible with his rights under art. 8.

Tim Owen QC and Rebecca Trowler (instructed by Alexander & Partners) for the appellant. David Perry QC and Melanie Cumberland (instructed by Crown Prosecution Service) for the respondent. Jeremy Johnson (instructed by Treasury Solicitor) for the intervener.

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Judges must remember that adoption is for life

Posted in Children, Times Law Report by mrkooenglish on June 12, 2008

From The TimesMay 29, 2008

Judges must remember that adoption is for life
Court of Appeal
Published May 29, 2008
SB v X County Council
Before Lord Justice Thorpe, Lord Justice Wall and Mr Justice Munby
Judgment May 20, 2008

In contentious adoption cases, where the court was dispensing with parental consent, the question of any contact between the children and their family members was for the court and not the local authority to resolve.

The Court of Appeal so held in dismissing an appeal brought by the mother, SB, against the decision of a county court judge on October 12, 2007, to dispense with her consent and make placement orders in respect of two of her children, S and D. Reporting restrictions were imposed preventing the publication of any details disclosing the identification or location of any of the parties.

LORD JUSTICE WALL, delivering the judgment of the court, said that the case raised in a clear and straightforward way two points of considerable importance for the future development of the law and practice of adoption.

The first was a pure point of law: what was the proper test for dispensing with parental agreement to the making of a placement order under section 52(1)(b) of the Adoption and Children Act 2002?

The second was a mixed question of policy and practice: was it a proper exercise of the power under section 52(1)(b) to dispense with parental consent to the making of a placement order, when the adoption agency in question proposed to conduct a search for both fostering and adoptive placements; a dual approach?

SB was 24 and had five children. Two of the children were freed for adoption in January 2006 and had been adopted by a couple and had no contact with their other siblings.

The youngest child was born in September 2006 and had remained in his mother’s care, under a supervision order in favour of the local authority.

S and D were seriously damaged children. In January 2007, the local authority’s adoption and permanence panel recommended that there should be a dual plan of adoption and fostering for S. The same psychiatrist advised both that contact between D and her parents should cease, and that placement orders under the 2002 Act should be sought. Accordingly, the local authority applied for placement orders in relation to both children and it was those applications which fell to be decided by the judge in October 2007.

In their Lordships’ judgment, the answer to what was meant by “welfare” in section 52(1)(b) was to be found in section 1 of the 2002 Act. Section 1(1) plainly applied when the court was deciding whether or not to dispense with parental consent to a placement order.

Such a decision was manifestly a decision relating to the adoption of a child. In those circumstances, section 1(2) of the 2002 Act required the court to treat the child’s welfare throughout his life as its paramount consideration.

Judges should apply the statutory language with care to the facts of the particular case. The message was prosaic, but was as simple and as straightforward as that. It very much echoed what the Court of Appeal said in In re S (a Child) (Special guardianship order) (The Times February 9, 2007) in relation to special guardianship orders.

Section 52(1)(b) was concerned with adoption and what had to be shown was that the child’s welfare required adoption as opposed to something short of adoption. A child’s circumstances might require statutory intervention, but that was not to say that the same circumstances would necessarily require the child to be adopted.

That did not mean, however, that there was some enhanced welfare test to be applied in cases of adoption. The difference was simply between section 1 of the Children Act 1989 and section 1 of the 2002 Act.

Section 1(2) of the 2002 Act, in contrast to section 1(1) of the 1989 Act, required a judge considering dispensing with parental consent in accordance with section 52(1)(b) to focus on the child’s welfare throughout his life. That emphasised that adoption, unlike other forms of order made under the 1989 Act, was something with lifelong implications.

The judge in the instant case did exactly what was required of him when dispensing with SB’s consent.

Their Lordships had found the policy of the local authority to have a dual approach more difficult. However, they had reached the conclusion that a combination of the tests in section 1(1) and 1(6) of the 2002 Act in particular justified the local authority’s pragmatic approach.

A local authority could be satisfied that the child ought to be placed for adoption within the meaning of section 22(1)(d) of the 2002 Act even though it recognised the reality that a search for adoptive parents might be unsuccessful and that, if it was, the alternative plan would have to be for long-term fostering.

Their Lordships wished to approach the issue of post-adoption contact with caution. Historically, post-adoption contact between children and birth parents was perceived as highly exceptional. That now had to be revisited under sections 26 and 27 of the 2002 Act.

The judge was right to make a contact order under section 26, and in their Lordships’ judgment, the question of contact between D and S, and between the children and their parents, was a matter for the court, and not the local authority, or the local authority in agreement with prospective adopters.

Judges to decide Children Act cases on the balance of probabilities

Posted in Children, House of Lords (case), Times Law Report by mrkooenglish on June 12, 2008

From The TimesJune 12, 2008

Judges to decide Children Act cases on the balance of probabilities
House of Lords

Published June 12, 2008

In re B (Children) (Care orders: Standard of proof)

Before Lord Hoffmann, Lord Scott of Foscote, Lord Rodger of Earlsferry, Lord Walker of Gestingthorpe and Baroness Hale of Richmond

Speeches June 11, 2008

The standard of proof necessary to establish the threshold for making a care order was the simple balance of probabilities. Neither the seriousness of any allegations nor the seriousness of the consequences should make any difference to the standard of proof to be applied in determining the facts.

The House of Lords so held, when dismissing an appeal by two children, N and A, through their guardian, and sending the case back for experts to be instructed and for the judge to complete his hearing in the light of the House of Lords’ ruling. The guardian appealed by leapfrog procedure from a decision of Mr Justice Charles ([2007] EWHC 2688 (Fam)) that a welfare hearing and the instruction of experts should take place on the basis that another child, R, was not sexually abused by the father, Mr B.

Mr Stephen Cobb, QC and Mr Stuart Fuller for the children; Miss Marianna Hildyard, QC, Miss Helen Mountfield and Miss Isabelle Watson for the father; Miss Jo Delahunty, QC and Miss Alison Grief for the Children and Family Court Advisory and Support Service, intervening.

LADY HALE said that the case concerned the future of two children, N, a girl aged nine, and A, a boy aged six, whose parents were Mr and Mrs B. Mrs B had two children by a previous marriage, R, a girl aged 16 and S, a boy aged 17. They all lived together until April 2006, when Mr B left the family home, although he later visited from time to time.

Social services and the police became involved with the family shortly afterwards. Mr B applied, with the support of the local authority, for residence orders in respect of N and A. Instead, the judge made interim care orders in respect of R as well as N and A, on the basis of a plan to remove them all from Mrs B and place them with Mr B at his parents’ home.

R then alleged that Mr B had sexually abused her and had assaulted her and S with a belt. R was placed with foster carers and had since returned to her mother’s care. N and A were placed with Mr B’s parents and Mr B moved out. In September 2007 they were moved to foster carers, where they remained.

Care proceedings were transferred to the High Court and a fact-finding hearing took place. However, despite an elaborate and meticulous analysis of all the evidence, the judge was unable to make a finding about the alleged sexual abuse of R by Mr B.

Instead, he concluded that he could not make a properly founded and reasoned conclusion whether it was more likely than not that R was sexually abused by Mr B and that she was telling the truth or whether it was more likely than not that R was not sexually abused by Mr B and thus that he was telling the truth.

Her Ladyship said that if the judiciary in this country regularly found themselves in that state of mind, the civil and family justice systems would rapidly grind to a halt.

If a judge found it more likely than not that something did take place, then it was treated as having taken place. If he found it more likely than not that it did not take place then it was treated as not having taken place. He was not allowed to sit on the fence. He had to find for one side or the other.

The judge’s findings in this case were expressed in such a way as to raise squarely the issue of principle. Was it possible to be satisfied that a child was likely to suffer a particular kind of harm in the future when the basis of making that suggestion was that there was a real possibility that another child had suffered the same kind of harm in the past. The judge seemed to have concluded there was a real possibility because he could not conclude there was none.

Mr Cobb invited the House of Lords to depart from In re H (Minors) (Sexual abuse: Standard of proof) ([1996] AC 563) and to overrule In re M and R (Minors) (Child abuse: Expert evidence) ([1996] 4 All ER 239) principally on the ground that, in combination with Lancashire County Council v B ([2000] 2 AC 147) and In re O (Minors) (Care: Preliminary hearing) ([2004] 1 AC 523), they produced illogical results.

Her Ladyship unhesitatingly declined that invitation. The reasons given by Lord Nicholls of Birkenhead for adopting the approach which he did in In re H remained thoroughly convincing. The threshold was there to protect both the children and their parents from unjustified intervention in their lives.

To allow the courts to make decisions about the allocation of parental responsibility for children on the basis of unproven allegations and unsubstantiated suspicions would be to deny them their essential role in protecting both children and their families from the intervention of the state, however well intentioned that intervention might be.

The court must first be satisfied that the harm or likelihood of harm existed. Once that was established, the court had to decide what outcome would be best for the child.

It was very much easier to decide upon a solution if the relative responsibility of the child’s carers for the harm which the child or another child had suffered could also be established. But the court could not shut its eyes to the undoubted harm which had been suffered simply because it did not know who was responsible.

The standard of proof to be applied in Children Act 1989 cases was the balance of probabilities. There were some proceedings, though civil in form, whose nature was such that it was appropriate to apply the criminal standard of proof. But care proceedings were not of that nature. They were not there to punish or to deter anyone. The consequences of breaking a care order were not penal. Care proceedings were there to protect a child from harm. The consequences for the child of getting it wrong were equally serious either way.

Although not invited to do so by any of the parties, the judge recused himself from the case. However, all judges were from time to time required to apply legal principles with which they had intellectual difficulty.

The problem which the judge saw in this case would arise in any other care case in which allegations were made but not found on a balance of probabilities to be true. If the judge was not fitted to try this case, it might be said that he was not fit to try any case in which the same problem could arise and that would be absurd. The same judge should hear the whole case.

Lord Hoffmann delivered a concurring speech. Lord Scott, Lord Rodger and Lord Walker agreed.

Solicitors: Stantons, Gravesend; Church Bruce, Gravesend; Miss Kirsten McLean, Children and Family Court Advisory and Support Service.