Wednesday, January 13th, 2021
Respondent v Defendant – How those suspected of causing injury to a child are treated differently in the family court and the criminal court
It is often said that you cannot be tried for the same crime twice. The ‘Double Jeopardy’ rule is a well-established principle in the criminal law system of England and Wales. This was partially abolished by the Criminal Justice Act 2003 but it is still only in very limited circumstances that a person who was acquitted of a crime can now be investigated and put on trial once again.
The family court has a different method of investigating allegations (‘proposed findings’/‘schedule of allegations’) brought by the local authority in relation to how a child may have suffered injury or harm. The criminal investigation or proceedings may run alongside the care proceedings so that the same issue is being looked at by two very different courts, in two very different ways. This can sometimes lead to very different outcomes (or not).
Standard of proof
Parents and other individuals involved in care and criminal proceedings can understandably be confused by the fact that the family and criminal cases proceed in different ways and that there are different ‘burdens of proof’. Within a criminal trial a jury would need to be satisfied ‘beyond reasonable doubt’1 that a defendant is guilty of the crime for which they are accused. A Judge may say to the jury that they need to be ‘sure’. Within a family court hearing there is no jury and instead the judge will need to be satisfied ‘on the balance of probabilities’2 that the respondent is responsible for the injuries/harm alleged – so, ‘that it is ‘more likely than not’. The main reason for the high bar in criminal trials is that such proceedings can result in the deprivation of a defendant’s liberty. The stakes in the family proceedings are also very high, if a ‘finding’ is made against a person that they have caused harm to a child this is likely to impact on the relationship and contact that person has not only with the subject child but any other child in the future.
Within care proceedings the local authority has to prove its case. In cases in which is it suspected that an injury to a child is not an accident the court must be careful not to reverse the burden of proof by requiring the parent to prove that they did not cause the injuries, or to provide an alternative explanation3.
Within care proceedings the evidence of the parents and/or carers is very important, and the court will consider not only what they say but how they present it, assessing their credibility and reliability4. The court will be alive to the fact that witnesses may tell lies in the course of the investigation and hearing and that the reason for lying may be not necessarily be because they are guilty, but could be as a result of a number of other factors including, remembering incorrectly, delay, shame, panic, misplaced loyalty or fear and distress. It is an established principle in both criminal and family court proceedings that the fact that a person has lied about something does not mean that they have lied about everything5.
In a criminal case the jury will, in most cases, give a verdict as to whether the defendant is guilty or not guilty. If found not guilty the jury has decided that the prosecution has not proved the case beyond reasonable doubt and the accused is free to go. If found guilty the accused is convicted and may be imprisoned. In family proceedings if the judge accepts the local authority’s evidence that a parent or carer has caused harm it will make a ‘finding’. A finding is an allegation which has been found by the judge to be true and is now considered a ‘fact’ and the court will treat them as such when making any future orders. Any allegations that were not found to be true will no longer be referred to in the proceedings.
In family proceedings sometimes a judge may reach the decision that, although the child has suffered injury or harm, the court is unable to identify which of the people suspected of causing the harm (‘possible perpetrators’) is responsible6. In such cases, despite the absence of a finding against a parent or respondent, the local authority may still pursue a case at final hearing that the child cannot, for example, return to the care of either parent because they remain a possible perpetrator. This can mean that although a carer may not have a finding made against them the fact they remain as a possible perpetrator may mean that at the end of the case the court decides that the child cannot return to that person’s care or that person must have, for example, supervised contact with the child.
Interplay of family and criminal proceedings
Whilst the criminal and family courts have very different methods of dealing with allegations of injury and harm to children, both systems are required to provide information to each other. Often this is seen in the disclosure of police information into family proceedings7. Family court hearings in relation to injuries to children are often heard in advance of any criminal prosecutions and the police can apply for disclosure of documents from the family proceedings to inform their investigation.
Those involved in giving evidence in family hearings regarding alleged injuries or harm to children should be aware that a person may give a ‘no comment’ interview in police proceedings but the police may successfully make an application for disclosure of statements given by a respondent in care proceedings in relation to how the child sustained an injury8.
Judges in family proceedings may (and often do) make an order for disclosure of a judgment from a family hearing to the police in which findings against a carer have been made, or that a carer has not been excluded from a list of people who could have caused harm to a child. The judge may also order further disclosure to the police of other material it considers relevant to the police investigation, such as medical evidence / expert reports and statements relied up in the family hearing9.
Whilst the statements from the family court proceedings cannot be used as evidence in a criminal trial, the information contained in the statements may be used to inform the police in their criminal investigation and assist them in deciding whether they would wish to re-interview an individual with a view to bringing charges.
In summary, the dual approach of the family and criminal courts mean that, whilst not being ‘tried for the same crime twice’, those involved in parallel proceedings may find themselves being examined in relation to the same set of facts in very different ways which may produce very different outcomes. What applies in both sets of proceedings equally is the importance of seeking legal advice at the first available opportunity should you find yourself the subject of interest from either the police or the local authority in matters in which it is alleged that you may have caused injury or harm to a child. At Hanne & Co. we have established Child Care Law and Criminal Law departments and would be glad to assist you in these matters.
1 Woolmington v DPP  UKHL 1
2 Re B (Care Proceedings: Standard of Proof)  2 FLR 141.
3 Re M (Fact-Finding Hearing: Burden of Proof)  2 FLR 874 & Re M-B (Children)  EWCA Civ 1027.
4 Re W and Another (Non-Accidental Injury)  FCR 346
5 R v Lucas (R)  QB 720
6 Re S-B (Children)  1 FLR 1161, SC & Re S (A Child)  1 FLR 739, CA.
8 S.98 Children Act 1989.
9 FPR 2010, Part 12, Chapter 7 and PD12G & EC (Disclosure of Material)  2 FLR 725 for checklist of considerations for disclosure from the family court proceedings to the police.
Samantha Cook is a Solicitor in Hanne & Co’s Child Care Law Department.