English Legal Methods - Essay Example

?Question 1a This is a family proceedings case. Question 1b The hearing s were on July 17th and 18th 1995. Question 1c The judgement was14 December 1995 Question 1d The case was heard before Judge Davidson. Question 1e Counsel for the local authority was James Munby Q.C.The counsel for the guardian and litem was Lindsey Kushner Q.C. The counsels for the parents were Allan Levy Q.C. and Judith Claxton. Question 2 [4 marks available in total] As well as [1996] AC 563, this case is reported at [1996] 2 WLR 8, [1996] 1 All ER 1 and [1996] 1 FLR 80. Which of these four law reports is regarded as the most authoritative and why? The most authoritative decision is the [1996] AC 563 as it is the House of Lord’s decision. The House of Lord is the highest court in England. The doctrine of judicial precedent states that the decisions of this court are binding on the lower courts. Question 3 [6 marks available in total] What were the facts giving rise to Mr R’s criminal trial and what was the outcome of that trial? Mr R had a relationship with the mother of four children. They gave birth to two children and the other two were from a previous marriage. The father was Mr H, and C was the eldest daughter, who alleged that in September 1993, Mr R had raped her continuously when she was between 7 and 8 years. This continued for over 5 years. Mr R was then charged with rape. He was tried in October 1994. The allegation involved four charges of rape. The main witness in this case was the daughter C. Mr R was consequently acquitted of the charges. Question 4 [6 marks available in total] At the hearing of this case at first instance what, in summary, were the two key conclusions the judge reached in respect of D1’s allegations against Mr R? The judge made the following conclusions. The first substantive issue was whether D1 was sexually abused. The judge averred that D1had proved, in her statement, the fact that there was abuse. Her story was consistent and factual. Mr. R had lied that he had never had an opportunity to be alone with any of the children, which was proved by D1 testimony. The judge felt that that D1’s allegations were true. He felt that the evidence presented by her and her statement in court was true. Mr. R had not rebutted these assertions by his evidence or his behavior in court. He felt that the allegations of abuse by D, which were true were based on presentation of evidence. He believed the evidence tendered by the girl was true. Her statement could also be reasonably suspected to be true Question 5 [4 marks available in total] Summarise the issues certified for Their Lordships’ consideration in this case. The issues before the Lordships are three, and they are as follows. The first issue is the standard of proof, which is to be proved where an allegation has been made that a child will suffer significant harm under the second part of 31(2) (a) of the Children Act. The second issue is in relation to the requirement of proof of sexual abuse, which is the standard of proof being higher than the normal civil standard of balance of probability, but lower than the criminal standard of proof. There is a question as to whether the evidence needed to prove the charge needs to be based on the seriousness of the charge. This means that the more serious the charge, the more evidence one needs to prove their case as opposed to a question of proving on a balance of probability. The final issue is where an allegation is made that a considerable injury is likely to impact on the child. The question raised here is: should one prove the likelihood to suffer harm on a balance of probability or does the presence of a substantial risk suffice instead of a speculative future risk? Question 6 [8 marks available in total] Summarise the submissions made before Their Lordships on behalf of: (a) The Local Authority (3marks) (b) The Guardian Ad Litem (2 marks) (c) The parents (3 marks) Submissions made on behalf of the Local Authority. The counsel submitted that the question of law to be addressed was on the meaning that is supposed to be granted to the use of the words that are likely to suffer, under section31 (2) (a) of the Children Act 1989. The judge has to use the threshold test. This is based on the issue of jurisdiction. The judge has to address the question of whether the child is likely to suffer substantial harm. The next test is the welfare test. The judge has to decide whether he is to make an order for care. These two tests are as set in the case of in Re M. (a minor). The care provided for, under the act falls into four categories. The first is voluntary care, then local authority reception, and finally compulsory care. The conditions to be met before making an order for care in family proceedings are that there must be extreme circumstances. Submissions on behalf of the Guardian ad Litem (2 marks) The counsel submitted that the question before the court was whether the threshold test had been met. This was regarding whether the child before the court was likely to suffer harm as under the act. The issue was whether the child was to suffer substantial harm in future under the second part of 31(2) (a). The facts presented to aid the judge in deciding whether abuse is most likely to occur in future. The fact that sexual abuse has not been proved to the required standard does not mean that it has not occurred. The counsel submitted that the judges in the lower court and the court of appeal erred in finding that only where there was evidence to show sexual abuse would the threshold test apply. The counsel also averred that the council was correct in asserting that the standard of proof required, where serious allegations had been made against a stepfather was more than the ordinary civil standard but lower than the criminal standard. The counsel submitted, in order to establish presence of significant harm. The test to be used was substantial risk and not speculative risk. This is based on the 1989 Act. The court, where it has not made an assessment of significant harm, will still be bound to assess the probability of future harm as held in Kennedy l.j. [1995] 1 f.l.r. 643 , 654e. Submissions made on behalf of the Parents (3 marks). Counsel submitted that the Court of Appeal decision was right and the judgement in Newham London Borough Council v. e.g. [1993] 1 f.l.r. 281 was incorrect in law. The test to be applied when assessing the serious allegations made against the father is that used in civil, which is based on the balance of probability. The next issue was regarding the purpose of the Part iv of the Children Act 1989. The main aim is maximum protection of the child. This is vis a vis the rights of the state and those of the parents. The law states that children should be taken care of by the parents. The court, in assessing whether there is risk of harm, has to find out whether the allegations made have veracity. This is as per the test set in [1995] 1 f.l.r. 643, 649a- 652d, 657f-g. The threshold test does not ask the court to look at the welfare of the child. The test has the words satisfied and likely to suffer, which are given the ordinary meaning. Question 7 [15 marks available in total] Explain the approach of the majority to the appeal. The decision of the majority was in relation to the views as set out in the opinion of Lord Nicholls of Birkenhead. The judge acknowledged the challenges faced by social workers and judges in protecting the child. They often faced the challenge of protecting the child while in certain cases failed to get enough evidence to implement the obligation. This led to allegations of poor implementation of the law. The need to balance all the needs of the interested parties was addressed by the Children’s Act 1989. Parliament set the standard to be applied to give a care order of the possibility or presence of harm to the child. The standard is low; however, this has to be a proof of the alleged facts that took place. The welfare test has to be met, which means that the parents, before they lose their children to the Local authorities, have to have the allegations proved. The presence of mere suspicions is not enough. The judge in the lower court applied the correct test needed to prove the standard of proof. The judge did not get evidence to show that there was an abuse or probability of abuse of the children. The definition of the likely was also clarified, which means that, under Section (31(2) (a) Children Act 1989), it stands for the probability of a real occurrence. This is one that is so real, such that it cannot be reasonably considered not to happen. This is also the same meaning given under section 31(2) (b).This means that likely relates to the child suffering harm due to the poor care that is given to him. The burden of proof lies with the plaintiff. The standard is based on that of a balance of probability. Question 8 [8 marks available in total] In what respects did the dissenting judgments of Lords Lloyd and Browne- Wilkinson agree with the majority? The two judges agreed with the majority on the following issues. The first is that, under section 31(2) of the Children Act 1989, all that the court has to find is the likelihood of a child suffering significant harm, and whether it is the presence of the probability of actual harm taking place. The second point of consensus was that the burden of proof rests on the applicant. The balance of proof is to be set on the balance of probability. The principles of establishing harm and the burden of proof are to be based on the evidence presented or presentation of facts. The evidence and facts have to lead him to believe that the child faces harm. Question 9 [12 marks available in total] Explain why the minority would have nevertheless decided the appeal differently? The minority differed on the following points of law. The judge Lord Browne- Wilkinson felt that, in assessing risk, the facts to be taken into consideration were different from those of assessing harm when it has occurred. The evidence to be tendered to show that an act has occurred is based on the balance of probability. The judge felt that, to prove presence of risk, all one needed was proving facts needed to make that conclusion and not the presence of past occurrences. The judge felt that the decision of the court may set the law to lead to negative effects on children at risk. This is because child abuse is not easy to prove due to the sensitivity of the charge. The difficulty of getting evidence from a child and the abuser is also a hindrance because of the absence of corroborative evidence. The judge felt that, if the law made it mandatory for prove of abuse to be made before a risk of abuse finding, then children would not be adequately protected. This is because those children in circumstances that lead to mere suspicion would not get protection. Lord Lloyd of Berwick made the next dissenting point. This was the meaning of the term likely under section 31(2) (a).The meaning to be given under the act is whether there is presence of serious harm or speculative possibility of harm in future. The standard of proof, where an allegation of risk of harm has been made, should be that of a balance of probability. This is despite the seriousness nature of the accusations made. The test to determine the possibility of harm is the threshold approach. The court need not be satisfied based on the test of balance of probability that the child has suffered sexual abuse. This is even where the allegation is the basis for an application by the local authority for orders of care to be given. The judge felt that the judge in the first case erred because he applied a standard of proof that was higher than usual. The judge failed to answer what was meant by significant harm that would occur in future. He used the two stage approach and erred in applying it. This is because he felt the second part did not apply in this scenario. Question 10 [12 marks available in total] Why did Lord Nicholls consider the decisions in Re G [1987] 1 WLR 1461 and Re W [1994] 1 FLR 419 not to be an accurate statement of the law? How many of Their Lordships agreed that these cases should be overruled? Lord Nicholls did not consider the judgements in Re G [1987] 1 WLR 1461 and Re W [1994] 1 FLR 419 to be good law for the following reasons. The judge felt that the already established rule of law was that the standard of proof in civil matters was on a balance of probability. The exception to this standard was in contempt of court proceedings. The judge felt that family proceedings fell under civil, and the normal standard should apply. Where a serious allegation has been made, the balance of proof should not be higher. The test to be used is whether the probability of the acts occurring should be used to assess the probability of the act occurring. This, therefore, means that the lower the probability of an act occurring, the more the evidence that is needed to prove under the balance of probability test. This is as per Lords Thomas statement in Re Dellow's Will Trusts. The courts have in their decisions set the precedent that where serious allegations are made, the standard of proof should be higher. This is the basis of the law in the two cases of Re G [1987] 1 WLR 1461 and Re W [1994] 1 FLR 419. Lord Nicholls felt that the law looks at probability and not the question of certainty. The law sets different standards of proof for different court cases. This means that the standard for proof in criminal is different from that in civil. The standard of proof for the first is beyond reasonable doubt, and the second is on a balance of probability. The need to deviate from the test of balance of probability would create a problem. What would the standard be? Would it be higher than the civil standard and lower than the seriousness of the offence? The judge felt that creating such a test would lead to lack of clarity and vagueness in the law. Therefore, he felt that the law should remain as it is, with the standard of law remaining beyond reasonable doubt. This is as set in the case of H. v. H. (Minors) (Child Abuse: Evidence) [1990] Fam. 86, 94, 100, In re M. (A Minor) (Appeal) (No. 2) [1994] 1 F.L.R. 59, 67 and In re W. (Minors) (Sexual Abuse: Standard of Proof) [1994] 1 F.L.R. 419, 424. Three judges agreed the cases should be overruled. Question 11 [15 marks available in total] Which of the judges’ approaches do you find most persuasive? Give reasons for your answer. The judge’s approach that is more persuasive in my opinion is the majority judgement. This is based on the following issues. The argument for the meaning of the word likely under the act gives more protection to children. Judge Nicholls asserts that the use of likely is not meant to mean more likely than not to happen. This would mean care orders would not be granted where there was the future risk of harm, but fell short of likely than not . Thus, his broad definition of likely enables more protection of children under risk of harm. The majority also assert that, before an order for care is given, the criteria must be met. The burden of proving that the conditions have been met lie on the applicant. This maintains the normal rule of law that ‘he who asserts must prove’. This is a fair rule as it means that a child cannot be removed from the care of the parents without proving the reason, under uniform criteria. The standard of proof as asserted by the majority remains at a balance of probability. This is a very good assertion as these are family matters. Therefore, they will need the civil test and not criminal, which is higher. The use of the test of balance of probability removes confusion and vagueness that would be created by a new test. The need for certainty in common law cannot be overemphasised. This is the essence of judicial precedent .The use of a standard test is, therefore, critically important. The majority propose good test that adheres to the principles of certainty. The standard of proof is also easy to apply to the threshold condition. The court assess whether the child was suffering a lot of harm or not. This is determined by evidence presented in court. The balance of probability test is then applied to make this assessment. This means the determination will not be vague, but clear. The most important issue of the case, where the council has made claims for a past harm and failed to prove it, is based on his judgment that harm occurred on his suspicion. The majority presentation of the law is that the council has to prove, and mere suspicion is not enough to get orders. This is a sound way of setting the law. The old adage in law is set that justice should be seen to be done. The use of a mere suspicion would lead to lack of faith in the justice system. Suspicion is not a fact, and one cannot say justice has been done. In re P. (A Minor) (Care: Evidence) [1994] 2 F.L.R. 751, the court held that the fact that a child died when in custody of the parents did not show there was the likelihood of harm happening to the other child. The local authority had to prove that the older baby’s death was caused by negligence, and was not an accident. The rule that requires prove of harm protects the parents from losing their children on mere suspicion. Bibliography In re H. AND OTHERS (MINORS) [1996] UKHL, A.C [1996] 1 AC 563 Read More