Re B (Children) [2008] UKHL 35

The House of Lords addressed the standard of proof in care proceedings under section 31(2) of the Children Act 1989. It reaffirmed that facts must be proved on the simple balance of probabilities, rejecting any 'heightened' civil standard, and that unproven allegations cannot ground findings of likely future harm.

Facts

The case concerned care proceedings relating to two children, NB (aged 9) and AB (aged 6), children of Mr and Mrs B. Mrs B also had two older children from a previous marriage, R and S. Following family breakdown in 2006, social services and police became involved amid allegations of sexualised behaviour, physical assaults, and a culture of false allegations within the household. After interim care orders were made, R alleged that Mr B had sexually abused her. The children were placed with foster carers.

At a 29-day fact-finding hearing, Charles J made extensive findings of physical and emotional abuse and identified an ‘allegation culture’ within the family. However, in relation to R’s allegations of sexual abuse by Mr B, the judge concluded he could not determine on the balance of probabilities whether the abuse had occurred, but equally could not exclude a ‘real possibility’ that it had. The judge deliberately framed his findings to raise the question of principle for appellate consideration.

Issues

Two principal issues arose:

• Whether the decision in In re H (Minors) (Sexual Abuse: Standard of Proof) [1996] AC 563 should be departed from, so that a ‘real possibility’ that past harm occurred could found a conclusion that a child ‘is likely to suffer significant harm’ under section 31(2)(a) of the Children Act 1989;
• Whether In re M and R [1996] 2 FLR 195 should be overruled, so that unproven allegations could be taken into account at the welfare stage under section 1(3)(e); and
• The correct articulation of the civil standard of proof, particularly whether a ‘heightened’ standard applies where serious allegations are made.

Arguments

For the Appellants (Children’s Guardian, supported by local authority and mother)

Mr Cobb QC argued that In re H and In re M and R produced illogical results when read alongside Lancashire County Council v B [2000] 2 AC 147 and In re O [2004] 1 AC 523. If a parent could face intervention based on being a ‘possible perpetrator’ of proven harm, it was artificial to disregard a real possibility that harm itself had occurred. Proceeding on the basis that unproven harm had not happened was said to be irresponsible.

For the Respondents (Father) and Intervener (Cafcass)

The existing law should be upheld. The threshold criteria are there to protect children and families from unjustified state intervention and must be founded on proven facts, not suspicion.

Judgment

The House of Lords unanimously dismissed the appeal.

Baroness Hale’s leading speech

Baroness Hale reaffirmed the three key authorities (In re H, Lancashire, and In re O) as forming a coherent whole. She held that Lord Nicholls’ reasoning in In re H remained thoroughly convincing: the threshold under section 31(2) protects children and parents from unjustified intervention and cannot be established on unsubstantiated suspicions. To allow unproven allegations to found a finding of likely future harm would effectively reverse the burden of proof and render the first limb of section 31(2)(a) redundant. The Act draws a deliberate distinction between ‘reasonable cause to suspect/believe’ (for interim and investigative stages) and the language of satisfaction that harm ‘is suffering’ or ‘is likely to suffer’ for final orders.

On the standard of proof, Baroness Hale held decisively that there is a single civil standard: the simple balance of probabilities, neither more nor less. Neither the seriousness of the allegation nor the seriousness of the consequences alters this standard. Inherent probabilities are merely factors to be weighed in determining where the truth lies. She observed that Lord Nicholls’ nuanced explanation in In re H had been widely misunderstood, and dicta from B v Chief Constable of Avon and Somerset [2001] 1 WLR 340 and R (McCann) v Crown Court at Manchester [2003] 1 AC 787 concerning a ‘heightened civil standard’ had wrongly been imported into care proceedings. The Court of Appeal’s correction in In re U [2005] Fam 134 was endorsed.

Lord Hoffmann’s speech

Lord Hoffmann emphasised that the law operates a binary system: a fact either happened or it did not. He analysed the three categories of case producing apparent confusion about the standard of proof and concluded that there is only one civil standard: proof that the fact in issue more probably occurred than not. He stressed that Lord Nicholls in In re H was not laying down a rule of law about inherent probabilities but making a common-sense observation.

Split hearings and recusal

Baroness Hale emphasised that fact-finding hearings are not a separate exercise; the same judge should hear the whole case. She also found that the trial judge should not have recused himself merely because he had disagreed with the existing law.

Implications

The decision has several important consequences for family law practice:

• Single civil standard: There is only one civil standard of proof: the balance of probabilities. The notion of a ‘heightened’ civil standard approaching the criminal standard has no application in care proceedings under the Children Act 1989.
• Role of inherent probabilities: The inherent (im)probability of an event is a matter of common sense to be weighed as a factor, not a legal rule requiring stronger evidence for more serious allegations.
• Threshold findings must be based on proven facts: A ‘real possibility’ that past harm occurred cannot, standing alone, support a finding that a child ‘is likely to suffer significant harm’. Predictions of future harm must be based on facts proved on the balance of probabilities or properly drawn inferences from such facts.
• Welfare stage: Unproven allegations rejected at the threshold stage should not be relied upon at the welfare stage as a basis for asserting current risk of the same type of harm.
• Judicial role: Judges must make findings; they cannot sit on the fence. The courts’ role in authorising permanent intervention is distinct from the local authority’s role in assessing risk and managing cases.
• Case management: The same judge should hear the whole of a care case; split judging is inappropriate.
• Human rights compatibility: The approach is consistent with articles 2, 3 and 8 ECHR. Removing children from families on the basis of unproven allegations would be difficult to justify as a ‘relevant and sufficient’ reason under article 8.

The decision is of central importance to family practitioners, local authorities, Cafcass guardians and the judiciary, providing clarity after years of confusion generated by dicta in cases concerning anti-social behaviour and sex offender orders. It protects both children and parents from intervention based on suspicion while preserving the courts’ ability to draw inferences from proven facts. The qualification remains that where shared care makes it impossible to identify the perpetrator of proven harm, each possible perpetrator may properly be treated as such at the welfare stage (Lancashire and In re O).

Verdict: Appeal dismissed. The House of Lords reaffirmed In re H (Minors) and In re M and R, holding that facts forming the basis of a prediction of likely significant harm under section 31(2)(a) of the Children Act 1989 must be proved on the simple balance of probabilities, and that there is only one civil standard of proof, neither heightened by the seriousness of the allegation nor its consequences.

Source: Re B (Children) [2008] UKHL 35