Lord Scott of Foscote Lord Rodger of Earlsferry Lord Walker of Gestingthorpe Baroness Hale of Richmond
Counsel
Appellants:
Respondents:
Stephen Cobb QC
Marianna Hildyard QC
Stuart Fuller
Helen Mountfield
(Instructed by Stantons)
Isabelle Watson
(Instructed by Church Bruce)
Interveners Jo Delahunty QC Alison Grief
(Instructed by CAFCASS)
Hearing date:
19 AND 20 MAY 2008
ON WEDNESDAY 11 JUNE 2008
HOUSE OF LORDS
OPINIONS OF THE LORDS OF APPEAL FOR JUDGMENT
IN THE CAUSE
In re B (Children) (FC)
[2008] UKHL 35
LORD HOFFMANN
My Lords,
1. I have had the advantage of reading in draft the speech to be delivered by my noble and learned friend Baroness Hale of Richmond and I am in complete agreement with her reasoning, analysis of the authorities and conclusions. I add some observations on the standard of proof only to underline, without in any way qualifying, what she has said.
2. If a legal rule requires a fact to be proved (a “fact in issue”), a judge or jury must decide whether or not it happened. There is no room for a finding that it might have happened. The law operates a binary system in which the only values are 0 and 1. The fact either happened or it did not. If the tribunal is left in doubt, the doubt is resolved by a rule that one party or the other carries the burden of proof. If the party who bears the burden of proof fails to discharge it, a value of 0 is returned and the fact is treated as not having happened. If he does discharge it, a value of 1 is returned and the fact is treated as having happened.
3. The effect of the decision of the House in Re H (Minors)(Sexual Abuse: Standard of Proof) [1996] AC 563 is that section 31(2)(a) of the Children Act 1989 requires any facts used as the basis of a prediction that a child is “likely to suffer significant harm” to be proved to have happened. Every such fact is to be treated as a fact in issue. The majority of the House rejected the analogy with facts which merely form part of the material from which a fact in issue may be inferred, which need not each be proved to have happened. There is of course no conceptual reason for rejecting this analogy, which in the context of some predictions (such as Lord Browne-Wilkinson’s example of air raid warnings) might be prudent and appropriate. But the House decided that it was inappropriate for the purposes of section 31(2)(a). It is this rule which the House reaffirms today.
4. The question which appears to have given rise to some practical difficulty is the standard of proof in such cases, that is to say, the degree of…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
In Re B [2008] UKHL 35
Case
[2008] UKHL 35
Decision Date
CaseChat Overview and Summary
The House of Lords was asked to determine the standard of proof in care proceedings for children under the Children Act 1989. The case involved allegations of sexual abuse against a father, Mr. B, by his teenage daughter, R. The trial judge was unable to conclude whether the allegations were true or not, but found there was a real possibility that they were. The children's guardian sought to overturn previous case law which held that a likelihood of future harm must be based on facts proved on the balance of probabilities, not a real possibility. The House of Lords unanimously dismissed the appeal, upholding the previous case law. The key reasons were:
1. The threshold criteria in section 31(2) of the Children Act is there to prevent unjustified intervention in families. Allowing decisions based on unproven allegations would defeat this purpose.
2. The standard of proof in care proceedings is the simple balance of probabilities, not a "heightened" standard. The seriousness of the allegations or consequences should not affect this.
3. Splitting the fact-finding and welfare stages of the hearing could lead to inconsistent decisions and missed information. The same judge should hear the whole case.
4. Relying on unproven allegations would not be proportionate interference with the family's rights under the European Convention on Human Rights.
In summary, the House of Lords reaffirmed that care orders cannot be based on unproven allegations of harm. Facts must be proved on the balance of probabilities before a court can conclude that a child is likely to suffer significant harm in the future.