In Re B

Case [2008] UKHL 35


HOUSE OF LORDS SESSION 2007–08
[2008] UKHL 35

on appeal from: [2008] EWCA Civ 282

OPINIONS

OF THE LORDS OF APPEAL

FOR JUDGMENT IN THE CAUSE

In re B (Children) (FC)

Appellate Committee

Lord Hoffmann


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…

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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.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

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Ratio Decidendi

Legal Principle Established

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