Standard of Proof in Care Proceedings

The House of Lords ruled on 11th June 2008 in an appeal in which three members of  4 Brick Court Chambers appeared before their Lordships on 19th and 20th May 2008. Marianna Hildyard QC and Isabelle Watson represented the Respondent father and Stuart Fuller (led by Stephen Cobb QC of 1 Garden Court Chambers) represented the Appellant children (through their Children’s Guardian). CAFCASS intervened.

Following a six week fact-finding hearing in June/ July 2007, it was the judgment of Charles J that because of the “allegation culture” within the family he was unable to find on the balance of probability either that the alleged sexual abuse had or had not taken place and therefore found that there was a “real possibility” that such abuse had occurred. Charles J made clear his concern that on the law as it stood he was unable to conclude on the basis of that finding that (for threshold purposes) there was a likelihood that the younger children would be sexually abused by the father in the future or (for welfare checklist purposes) that there was a risk of such abuse. The Guardian appealed on behalf of the two younger children.  

The appeal was conceded before the Court of Appeal ([2008] EWCA Civ 282) as the challenge was, in effect, to rulings of the House of Lords and permission was granted for an appeal to their Lordships. Before the House the Appellant argued that a finding of a “real possibility” should be capable of establishing a likelihood of future harm for the purposes of establishing threshold.

At the close of the Appellants’ case the Judicial Committee (comprising Lord Hoffman, Lord Scott, Lord Rodger, Lord Walker and Baroness Hale) indicated that they did not intend to overrule re H or re M and R.  The law will therefore remain that only a proven past event can found a likelihood or risk of future harm. With respect to the “enhanced cogency” gloss put on the balance of probability test in certain cases, their Lordships indicated that they may wish to revisit this issue and this will no doubt be addressed in their Lordships’ speeches.

Download Re B (Children) [2008] UKHL 35 as a PDF document here. 

Date Added: June 11th 2008