West Law Report

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.

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