IN RE B (CHILDREN) [2008] UKHL 35
FACTS:-
The case concerned two children, N and A. Allegations of sexual and physical abuse were made against the father, Mr B, but it was said that these were made up by the mother, Mrs B and another child, R, who was the mother’s daughter by a previous marriage. It was also alleged that the mother exhibited aggressive and bullying behaviour, and that there was an “allegation culture” within the family. The two children, N and A were taken into care.
The judge in the care proceedings said that:-
The children’s guardian, with the support of the local authority and their mother, sought to advance a test for the standard of proof to be employed in care proceedings, based on “real possibility”.
HELD:-
Baroness Hale referred to In Re H (Minors) together with two further cases that affirmed the principle stated in that case, Lancashire County Council v B [2000] 2 AC 147, In Re O (Minors)(Care Proceedings: Preliminary Hearing) [2004] 1 AC 523 and obiter in In re M and R (Child Abuse: Evidence) [1996] 2 FLR 195.
She said that if the judiciary found themselves in the same state of mind as the judge in these care proceedings, civil and family justice systems would rapidly grind to a halt. Documentary proof was not required, and there was often heavy reliance on oral evidence.
A judge was not allowed to sit on the fence, he had to find for one side or the other. The care proceedings judge’s finding were expressed in such a way as squarely to raise the issue of principle.
Baroness Hale considered the authorities, including In Re H (Minors). In that case, the House of Lords considered the operation of Section 31(2)(a) of the Children Act 1989, which stated.
“A court may only make a care order or supervision order if it is satisfied--
(a) that the child concerned is suffering, or is likely to suffer, significant harm…”
The House of Lords had established three separate propositions:-
In relation to the first limb of Section 31(2)(a) the House of Lords said that it must be proved to the court’s satisfaction if disputed, on which the court could properly conclude that the child was suffering harm. In relation to the second limb, there must be facts from which the court could properly conclude that there is a real possibility that the child would suffer harm in the future.
Firstly proof not suspicion was required according to the Lords in In re H (Minors). Secondly there must be evidence of present harm, before the court could move on to “likely to suffer” significant harm. Thirdly the burden of proof was not reversed. The court could not hold that, although the misconduct had not been proved, it had not been disproved and there was a real possibility that the misconduct did occur. Parliament had not intended that result.
In Lancashire County Council v B [2000] 2 AC 147 the possible perpetrators of violence against a baby were the mother and fathers, or a childminder. The local authority brought proceedings, not only in respect of the baby (Child A) but also in respect of the childminder’s son (Child B). The judge dismissed the applications relating to each child. He could not be satisfied that harm suffered by Child A was attributable to a lack of reasonable care on the part of the parent against whom the order was sought, nor could he be satisfied of the likelihood of future harm to Child B attributable to a lack of reasonable care by his mother. There was no evidence that Child B had been harmed in any way. There was an appeal to the Court of Appeal by the local authority. They upheld the order in relation to Child A, but not Child B. The fact that it could not be proven who had assaulted Child A, did not matter.
Lord Hoffman said that if a legal rule required a fact to be proved, a judge had to decide whether or not it happened. There was no room for a finding that it might have happened. The effect of the decision in Re H (Minors)(Sexual Abuse: Standard of Proof) [1996] AC 563 was that section 31(2)(a) of the Children Act 1989 required any facts used as the basis of a prediction that a child was “likely to suffer significant harm” to be proved to have happened.
The question that appeared to have given rise to practical difficulties was the standard of proof in such cases. The House of Lords in Re H (Minors) made it clear that the court had to apply the ordinary civil standard of proof. It had to be satisfied that the occurrence of the fact in question was more likely than not.
Some confusion had been caused by dicta that suggested that the standard of proof varies with the gravity of the misconduct alleged or even the seriousness of the consequences for the person concerned.
Lord Hoffman pointed to three categories of case:-
A case from Category a) was R v Secretary of State for the Home Department, Ex parte Khawaja [1984] AC 74 and concerned the summary removal of an immigrant. Lord Scarman said that he was most reluctant to say that the criminal standard of proof should apply. The civil standard would meet the ends of justice. However the flexibility of the civil standard of proof would suffice to ensure that the court would require the high degree of probability that was appropriate to what was at stake.
In B v Chief Constable of Avon and Somerset Constabulary [2001] 1 WLR 340 Lord Bingham said that the civil standard of proof did not invariably mean a bare balance of probability. The civil standard was a flexible standard to be applied with greater or lesser strictness according to the seriousness of what had to be proved and the implications of proving those matters. In a serious case, the difference between the civil and criminal standard might would be, for all practical purposes, indistinguishable from the criminal standard.
However Lord Steyn in R (McCann) v Crown Court at Manchester [2003] 1 AC 787 said that in that particular case, the task of the magistrates should be made more straightforward if he ruled that they should in all cases of anti social behaviour, apply the criminal standard.
The leading case in the second category b) was until Re H (Minors) [1996] AC 563 the decision of the Court of Appeal in Hornal v Neuberger Products Ltd [1957] 1 QB 247. Morris LJ in Hornal had said that it was the normal standard for civil proceedings; proof on a balance of probability, but the gravity of an allegation of fraud was something which should be taken into account in deciding whether the burden had been discharged. Lord Nicholls in Re H (Minors) had attempted to capture this notion when determining the standard of proof to be used under the Children Act 1989. He said that a step father is usually less likely to have repeatedly raped his under age daughter than on occasion to have lost his temper and slapped her. However he explained that having regard to inherent probabilities did not mean where a serious allegations was at issue, the standard of proof was higher.
However the dicta of Lord Nicholls had caused confusion, and led to submissions that there should be a “heightened civil standard” equivalent to the criminal standard. Dame Butler-Sloss restored clarity and certainty in Re U (A Child)(Department for Education and Skills intervening) [2005] Fam 134. She said that the standard of proof to be applied in the Children Act 1989 cases was the balance of probabilities. Cases following Re H (Minors) had been concerned with other statutes. The strict rules of evidence applicable in a criminal trial which was adversarial in nature, was to be contrasted with the partly inquisitorial approach of the court dealing with children cases in which the rules of evidence were considerably relaxed.
Lord Hoffman said that the time had come to say, once and for all, that there was only one civil standard of proof and that was proof that the fact in issue more probably occurred than not. Clarity would be greatly enhanced if the courts simply said that although the proceedings were civil, the nature or the particular issue involved made it appropriate to apply the criminal standard.
With regard to inherent probabilities, common sense, not law required that in deciding this question, regards should be had to whatever extent appropriate, to the inherent probabilities of the case. If a child alleged sexual abuse by a parent, it was common sense to start with the assumption that most parents do not abuse their children. That assumption might be dispelled by other compelling evidence of the relationship between parent and child, or parent and other children.
Lords Scott, Rodger and Walker agreed with Lord Hoffman and Baroness Hale.
FACTS:-
The case concerned two children, N and A. Allegations of sexual and physical abuse were made against the father, Mr B, but it was said that these were made up by the mother, Mrs B and another child, R, who was the mother’s daughter by a previous marriage. It was also alleged that the mother exhibited aggressive and bullying behaviour, and that there was an “allegation culture” within the family. The two children, N and A were taken into care.
The judge in the care proceedings said that:-
- He could not make a properly founded and reasoned conclusion that it was more likely than not that R had been sexually abused by Mr B.
- He could not make a properly founded and reasoned conclusion that it was more likely than not that R was not sexually abused by Mr B.
- He would have to make a guess because he could not give weight to the competing arguments on a properly founded and reasoned basis
- On an approach founded on evidence and reasoning, he was unable t conclude that there was no real possibility that Mr B sexually abused R, and he therefore concluded that there was a real possibility that he did.
The children’s guardian, with the support of the local authority and their mother, sought to advance a test for the standard of proof to be employed in care proceedings, based on “real possibility”.
HELD:-
Baroness Hale referred to In Re H (Minors) together with two further cases that affirmed the principle stated in that case, Lancashire County Council v B [2000] 2 AC 147, In Re O (Minors)(Care Proceedings: Preliminary Hearing) [2004] 1 AC 523 and obiter in In re M and R (Child Abuse: Evidence) [1996] 2 FLR 195.
She said that if the judiciary found themselves in the same state of mind as the judge in these care proceedings, civil and family justice systems would rapidly grind to a halt. Documentary proof was not required, and there was often heavy reliance on oral evidence.
A judge was not allowed to sit on the fence, he had to find for one side or the other. The care proceedings judge’s finding were expressed in such a way as squarely to raise the issue of principle.
Baroness Hale considered the authorities, including In Re H (Minors). In that case, the House of Lords considered the operation of Section 31(2)(a) of the Children Act 1989, which stated.
“A court may only make a care order or supervision order if it is satisfied--
(a) that the child concerned is suffering, or is likely to suffer, significant harm…”
The House of Lords had established three separate propositions:-
- The words “likely to suffering significant harm” did not mean that such harm had to be more likely than not to happen in the future; it was enough if its happening was a real possibility.
- The standard of proof of facts in issue was the balance of probabilities, however there was a difference in what the majority of the Lords (led by Lord Nicholls said about the way in which that standard should be expressed and what was said by Lord Lloyd.
- A majority of the Lords, led by Lord Nicholls had said that a conclusion as to future risk had to be based on facts.
In relation to the first limb of Section 31(2)(a) the House of Lords said that it must be proved to the court’s satisfaction if disputed, on which the court could properly conclude that the child was suffering harm. In relation to the second limb, there must be facts from which the court could properly conclude that there is a real possibility that the child would suffer harm in the future.
Firstly proof not suspicion was required according to the Lords in In re H (Minors). Secondly there must be evidence of present harm, before the court could move on to “likely to suffer” significant harm. Thirdly the burden of proof was not reversed. The court could not hold that, although the misconduct had not been proved, it had not been disproved and there was a real possibility that the misconduct did occur. Parliament had not intended that result.
In Lancashire County Council v B [2000] 2 AC 147 the possible perpetrators of violence against a baby were the mother and fathers, or a childminder. The local authority brought proceedings, not only in respect of the baby (Child A) but also in respect of the childminder’s son (Child B). The judge dismissed the applications relating to each child. He could not be satisfied that harm suffered by Child A was attributable to a lack of reasonable care on the part of the parent against whom the order was sought, nor could he be satisfied of the likelihood of future harm to Child B attributable to a lack of reasonable care by his mother. There was no evidence that Child B had been harmed in any way. There was an appeal to the Court of Appeal by the local authority. They upheld the order in relation to Child A, but not Child B. The fact that it could not be proven who had assaulted Child A, did not matter.
Lord Hoffman said that if a legal rule required a fact to be proved, a judge had to decide whether or not it happened. There was no room for a finding that it might have happened. The effect of the decision in Re H (Minors)(Sexual Abuse: Standard of Proof) [1996] AC 563 was that section 31(2)(a) of the Children Act 1989 required any facts used as the basis of a prediction that a child was “likely to suffer significant harm” to be proved to have happened.
The question that appeared to have given rise to practical difficulties was the standard of proof in such cases. The House of Lords in Re H (Minors) made it clear that the court had to apply the ordinary civil standard of proof. It had to be satisfied that the occurrence of the fact in question was more likely than not.
Some confusion had been caused by dicta that suggested that the standard of proof varies with the gravity of the misconduct alleged or even the seriousness of the consequences for the person concerned.
Lord Hoffman pointed to three categories of case:-
- Civil cases where the court has thought that, because of the serious consequences of the proceedings, the criminal standard of proof or something similar should be applied.
- Where some event was inherently improbable, strong evidence might be required to persuade that it happened
- Cases where judges were confused between (a) and (b)
A case from Category a) was R v Secretary of State for the Home Department, Ex parte Khawaja [1984] AC 74 and concerned the summary removal of an immigrant. Lord Scarman said that he was most reluctant to say that the criminal standard of proof should apply. The civil standard would meet the ends of justice. However the flexibility of the civil standard of proof would suffice to ensure that the court would require the high degree of probability that was appropriate to what was at stake.
In B v Chief Constable of Avon and Somerset Constabulary [2001] 1 WLR 340 Lord Bingham said that the civil standard of proof did not invariably mean a bare balance of probability. The civil standard was a flexible standard to be applied with greater or lesser strictness according to the seriousness of what had to be proved and the implications of proving those matters. In a serious case, the difference between the civil and criminal standard might would be, for all practical purposes, indistinguishable from the criminal standard.
However Lord Steyn in R (McCann) v Crown Court at Manchester [2003] 1 AC 787 said that in that particular case, the task of the magistrates should be made more straightforward if he ruled that they should in all cases of anti social behaviour, apply the criminal standard.
The leading case in the second category b) was until Re H (Minors) [1996] AC 563 the decision of the Court of Appeal in Hornal v Neuberger Products Ltd [1957] 1 QB 247. Morris LJ in Hornal had said that it was the normal standard for civil proceedings; proof on a balance of probability, but the gravity of an allegation of fraud was something which should be taken into account in deciding whether the burden had been discharged. Lord Nicholls in Re H (Minors) had attempted to capture this notion when determining the standard of proof to be used under the Children Act 1989. He said that a step father is usually less likely to have repeatedly raped his under age daughter than on occasion to have lost his temper and slapped her. However he explained that having regard to inherent probabilities did not mean where a serious allegations was at issue, the standard of proof was higher.
However the dicta of Lord Nicholls had caused confusion, and led to submissions that there should be a “heightened civil standard” equivalent to the criminal standard. Dame Butler-Sloss restored clarity and certainty in Re U (A Child)(Department for Education and Skills intervening) [2005] Fam 134. She said that the standard of proof to be applied in the Children Act 1989 cases was the balance of probabilities. Cases following Re H (Minors) had been concerned with other statutes. The strict rules of evidence applicable in a criminal trial which was adversarial in nature, was to be contrasted with the partly inquisitorial approach of the court dealing with children cases in which the rules of evidence were considerably relaxed.
Lord Hoffman said that the time had come to say, once and for all, that there was only one civil standard of proof and that was proof that the fact in issue more probably occurred than not. Clarity would be greatly enhanced if the courts simply said that although the proceedings were civil, the nature or the particular issue involved made it appropriate to apply the criminal standard.
With regard to inherent probabilities, common sense, not law required that in deciding this question, regards should be had to whatever extent appropriate, to the inherent probabilities of the case. If a child alleged sexual abuse by a parent, it was common sense to start with the assumption that most parents do not abuse their children. That assumption might be dispelled by other compelling evidence of the relationship between parent and child, or parent and other children.
Lords Scott, Rodger and Walker agreed with Lord Hoffman and Baroness Hale.