| CHILDREN — Care proceedings — Threshold conditions — Allegations of sexual abuse by one child denied by stepfather — Care proceedings relating to other children — Standard of proof — Children Act 1989, ss 1, 31(2)
In re B (Minors) (Sexual Abuse: Standard of Proof) [2008] UKHL 35; [2008] WLR (D) 186
HL(E): Lord Hoffmann, Lord Scott of Foscote, Lord Rodger of Earlsferry, Lord Walker of Gestingthorpe and Baroness Hale of Richmond: 11 June 2008
The standard of proof to be applied when establishing the threshold for making a care order under s 31(2) or the welfare considerations under s 1 of the Children Act 1989 was the simple balance of probabilities and neither the seriousness of the allegations nor the seriousness of the consequences should make any difference to the standard of proof 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 the hearing.
The appeal was by leapfrog procedure from a decision on 11 December 2008 of Charles J who conducted a fact-finding hearing in order to establish whether the threshold conditions for making a care order were established, and stated that he could not decide whether it was “more likely than not” that another child, R, who made allegations of sexual abuse against the father, Mr B, was telling the truth or whether it was “more likely than not” that Mr B was telling the truth in denying the allegations. The judge ordered that a welfare hearing and the instruction of experts should take place on the basis that R was not sexually abused by Mr B.
BARONESS HALE said that in our legal system if a judge found it more likely than not that something did take place, then it did take 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. Mr Cobb invited the court to depart from In re H (Minors) (Sexual Abuse: Standard of Proof) [1996] AC 563 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 for adopting the approach 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 standard of proof to be established in Children Act 1989 cases was the balance of probabilities and there was no good reason to leap across a division on the one hand between crime and preventative measures taken to restrain defendants for the benefit of the community, and on the other hand, wholly different considerations of child protection and child welfare. 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 deter anyone but were there to protect a child from harm. The consequences for the child of getting them wrong were equally serious either way
LORD HOFFMANN delivered a concurring speech. LORD SCOTT, LORD RODGER and LORD WALKER agreed. |
Appearances: Stephen Cobb QC and Stuart Fuller (Stantons, Gravesend, Kent) for the children N and A, through their guardian; Marianne Hildyard QC , Helen Mountfield and Isabelle Watson (Church Bruce, Gravesend) for the father; Jo Delahunty QC and Alison Grief (Children and Family Court Advisory and Support Service) for the intervener.
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