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Session 2007 - 08 Publications on the Internet Judgments PDF Print Version 
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| Judgments - In Re B (Children) (Fc)
Appellate Committee Lord Hoffmann Lord Scott of Foscote Lord R
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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: Stephen Cobb QC Stuart Fuller (Instructed by Stantons) Respondents: Marianna Hildyard QC Helen Mountfield 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 persuasion which the tribunal must feel before it decides that the fact in issue did happen. Re H (minors) makes it clear that it must apply the ordinary civil standard of proof. It must be satisfied that the occurrence of the fact in question was more likely than not. 5. Some confusion has however been caused by dicta which suggest that the standard of proof may vary with the gravity of the misconduct alleged or even the seriousness of the consequences for the person concerned. The cases in which such statements have been made fall into three categories. First, there are cases in which the court has for one purpose classified the proceedings as civil (for example, for the purposes of article 6 of the European Convention) but nevertheless thought that, because of the serious consequences of the proceedings, the criminal standard of proof or something like it should be applied. Secondly, there are cases in which it has been observed that when some event is inherently improbable, strong evidence may be needed to persuade a tribunal that it more probably happened than not. Thirdly, there are cases in which judges are simply confused about whether they are talking about the standard of proof or about the role of inherent probabilities in deciding whether the burden of proving a fact to a given standard has been discharged. 6. A case in the first category was R v Secretary of State for the Home Department, Ex p Khawaja [1984] AC 74 which concerned the summary removal of an immigrant on the ground that he had obtained leave to enter by fraud or deception. These were civil proceedings and Lord Scarman, who dealt with this point most fully, was reluctant to say that the criminal standard of proof should apply: see p. 112. Instead, he said: “I have come to the conclusion that the choice between the two standards is not one of any great moment. It is largely a matter of words. There is no need to import into this branch of the civil law the formula used for the guidance of juries in criminal cases. The civil standard as interpreted and applied by the civil courts will meet the ends of justice.” 7. He then cited Bater v Bater [1951] P 35, in which the Court of Appeal managed to rule that although it was a misdirection for a judge in matrimonial proceedings to say that the criminal standard of proof applied to allegations of cruelty (Davis v Davis [1950] P 125) it was correct to say that they had to be proved beyond reasonable doubt. Lord Scarman then referred to Hornal v Neuberger Products Ltd [1957] 1 QB 247, which was a case in the second category, and went on at p113: “My Lords, I would adopt as appropriate to cases of restraint put by the executive upon the liberty of the individual the civil standard flexibly applied in the way set forth in the cases cited… It is not necessary to import into the civil proceedings of judicial review the formula devised by judges for the guidance of juries in criminal cases. Liberty is at stake: that is, as the court recognised in Bater v. Bater [1951] P. 35 and in Hornal v. Neuberger Products Ltd. [1957] 1 Q.B. 247, a grave matter. The reviewing court will therefore require to be satisfied that the facts which are required for the justification of the restraint put upon liberty do exist. The flexibility of the civil standard of proof suffices to ensure that the court will require the high degree of probability which is appropriate to what is at stake.” 8. Another case in the first category is B v Chief Constable of Avon and Somerset Constabulary [2001] 1 WLR 340, which concerned a “sex offender order” under section 2 of the Crime and Disorder Act 1998. Magistrates may make such an order if it is proved that a person is a sex offender and has acted in such a way as to give reasonable cause to believe that an order is necessary to protect the public from serious harm. The order may impose restrictions upon the person’s freedom of movement and activity. Lord Bingham CJ said (at pp. 353-354) that the proceedings were civil in domestic law and for the purposes of the Convention but — “…the civil standard of proof does not invariably mean a bare balance of probability, and does not mean so in the present case. The civil standard is a flexible standard to be applied with greater or lesser strictness according to the seriousness of what has to be proved and the implications of proving those matters: Bater v Bater [1951] P 35, Hornal v Neuberger Products Ltd [1957] 1 QB 247 and R v Secretary of State for the Home Department, ex parte Khawaja [1984] AC 74….In a serious case such as the present, the difference between the two standards is, in truth, largely illusory. I have no doubt that, in deciding whether the condition in section 2(1)(a) is fulfilled, a magistrates’ court should apply a civil standard of proof which will for all practical purposes be indistinguishable from the criminal standard.” 9. A similar point arose in R (McCann) v Crown Court at Manchester [2003] 1 AC 787, which concerned an anti-social behaviour order under section 1 of the 1998 Act. The House held that the proceedings were civil for the purposes of article 6 of the Convention. On the standard of proof, however, Lord Steyn said at para 37: “I agree that, given the seriousness of matters involved, at least some reference to the heightened civil standard would usually be necessary: In re H (Minors)(Sexual Abuse: Standard of Proof) [1996] AC 563, 586D-H, per Lord Nicholls of Birkenhead. For essentially practical reasons, the Recorder of Manchester decided to apply the criminal standard. The Court of Appeal said that would usually be the right course to adopt. Lord Bingham of Cornhill has observed that the heightened civil standard and the criminal standard are virtually indistinguishable. I do not disagree with any of these views. But in my view pragmatism dictates that the task of magistrates should be made more straightforward by ruling that they must in all cases under section 1 apply the criminal standard.” 10. The leading case in the second category was, until Re H (Minors) [1996] AC 563, the decision of the Court of Appeal in Hornal v Neuberger Products Ltd [1957] 1 QB 247. The question there was the appropriate standard of proof of an allegation of fraud in civil proceedings. In a frequently cited passage, Morris LJ said (at p. 266) that it was the normal standard for civil proceedings; proof on a balance of probability. But the gravity of an allegation of fraud was something which should be taken into account in deciding whether the burden had been discharged: “Though no court and no jury would give less careful attention to issues lacking gravity than to those marked by it, the very elements of gravity become a part of the whole range of circumstances which have to be weighed in the scale when deciding as to the balance of probabilities.” 11. It was this notion of having regard to inherent probabilities which Lord Nicholls of Birkenhead attempted to capture in In re H (Minors)(Sexual Abuse: Standard of Proof) [1996] AC 563, 586D-H: “The balance of probability standard means that a court is satisfied an event occurred if the court considers that, on the evidence, the occurrence of the event was more likely than not. When assessing the probabilities the court will have in mind as a factor, to whatever extent is appropriate in the particular case, that the more serious the allegation the less likely it is that the event occurred and, hence, the stronger should be the evidence before the court concludes that the allegation is established on the balance of probability. Fraud is usually less likely than negligence. Deliberate physical injury is usually less likely than accidental physical injury. A step-father is usually less likely to have repeatedly raped and had non-consensual oral sex with his under age stepdaughter than on some occasion to have lost his temper and slapped her. Built into the preponderance of probability standard is a generous degree of flexibility in respect of the seriousness of the allegation. Although the result is much the same, this does not mean that where a serious allegation is in issue the standard of proof required is higher. It means only that the inherent probability or improbability of an event is itself a matter to be taken into account when weighing the probabilities and deciding whether, on balance, the event occurred. The more improbable the event, the stronger must be the evidence that it did occur before, on the balance of probability, its occurrence will be established.” 12. The degree of confusion which is possible on this issue is exemplified by the fact that despite the painstaking clarity with which Lord Nicholls explained that having regard to inherent probabilities did not mean that “where a serious allegation is in issue the standard of proof required is higher", Lord Steyn in R (McCann) v Crown Court at Manchester [2003] 1 AC 787, 812 cited this very passage as authority for the existence of a “heightened civil standard". This appears to have resulted in submissions that the Family Division should also apply a “heightened civil standard", equivalent to the criminal standard (“in serious cases such as the present, the difference between the two standards is, in truth, largely illusory", per Lord Bingham CJ in B v Chief Constable of Avon and Somerset Constabulary [2001] 1 WLR 340, 354), in local authority applications for care orders. Dame Elizabeth Butler-Sloss P restored clarity and certainty in re U (A Child) (Department for Education and Skills intervening) [2005] Fam 134,143-144: “We understand that in many applications for care orders counsel are now submitting that the correct approach to the standard of proof is to treat the distinction between criminal and civil standards as ‘largely illusory'. In our judgment this approach is mistaken. The standard of proof to be applied in Children Act 1989 cases is the balance of probabilities and the approach to these difficult cases was laid down by Lord Nicholls in In re H (Minors) (Sexual Abuse: Standard of Proof) [1996] AC 563. That test has not been varied nor adjusted by the dicta of Lord Bingham of Cornhill CJ or Lord Steyn who were considering applications made under a different statute. There would appear to be 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 nor to apply the reasoning in McCann’s case [2003] 1 AC 787 to public, or indeed to private, law cases concerning children. The strict rules of evidence applicable in a criminal trial which is adversarial in nature is to be contrasted with the partly inquisitorial approach of the court dealing with children cases in which the rules of evidence are considerably relaxed. In our judgment therefore…the principles set out by Lord Nicholls should continue to be followed by the judiciary trying family cases and by magistrates sitting in the family proceedings courts.” 13. My Lords, I would invite your Lordships fully to approve these observations. I think that the time has come to say, once and for all, that there is only one civil standard of proof and that is proof that the fact in issue more probably occurred than not. I do not intend to disapprove any of the cases in what I have called the first category, but I agree with the observation of Lord Steyn in McCann’s case (at 812) that clarity would be greatly enhanced if the courts said simply that although the proceedings were civil, the nature of the particular issue involved made it appropriate to apply the criminal standard. 14. Finally, I should say something about the notion of inherent probabilities. Lord Nicholls said, in the passage I have already quoted, that — “the court will have in mind as a factor, to whatever extent is appropriate in the particular case, that the more serious the allegation the less likely it is that the event occurred and, hence, the stronger should be the evidence before the court concludes that the allegation is established on the balance of probability.” 15. I wish to lay some stress upon the words I have italicised. Lord Nicholls was not laying down any rule of law. There is only one rule of law, namely that the occurrence of the fact in issue must be proved to have been more probable than not. Common sense, not law, requires that in deciding this question, regard should be had, to whatever extent appropriate, to inherent probabilities. If a child alleges sexual abuse by a parent, it is common sense to start with the assumption that most parents do not abuse their children. But this assumption may be swiftly dispelled by other compelling evidence of the relationship between parent and child or parent and other children. It would be absurd to suggest that the tribunal must in all cases assume that serious conduct is unlikely to have occurred. In many cases, the other evidence will show that it was all too likely. If, for example, it is clear that a child was assaulted by one or other of two people, it would make no sense to start one’s reasoning by saying that assaulting children is a serious matter and therefore neither of them is likely to have done so. The fact is that one of them did and the question for the tribunal is simply whether it is more probable that one rather than the other was the perpetrator. 16. For the reasons given by Baroness Hale of Richmond, I would make the order she proposes. LORD SCOTT OF FOSCOTE My Lords, 17. I have had the advantage of reading in draft the opinion prepared by my noble and learned friend Baroness Hale of Richmond. Having done so I find myself wholly convinced by her analysis of the legal issues and the conclusions she has reached, and convinced also that any attempt by me to add anything of my own would no more than muddy the waters that she has left so admirably limpid. For the reasons she has given I too would dismiss this appeal. LORD RODGER OF EARLSFERRY My Lords, 18. I have had the privilege of considering the speeches of my noble and learned friends, Lord Hoffmann and Baroness Hale of Richmond, in draft. For the reasons which they give, I too would dismiss the appeal and make the order which Baroness Hale proposes. LORD WALKER OF GESTINGTHORPE My Lords, 19. I have had the privilege of reading in draft the opinions of my noble and learned friends Lord Hoffmann and Baroness Hale of Richmond. I am in complete agreement with them, and I would make the order that Baroness Hale proposes. BARONESS HALE OF RICHMOND My Lords, 20. Taking a child away from her family is a momentous step, not only for her, but for her whole family, and for the local authority which does so. In a totalitarian society, uniformity and conformity are valued. Hence the totalitarian state tries to separate the child from her family and mould her to its own design. Families in all their subversive variety are the breeding ground of diversity and individuality. In a free and democratic society we value diversity and individuality. Hence the family is given special protection in all the modern human rights instruments including the European Convention on Human Rights (art 8), the International Covenant on Civil and Political Rights (art 23) and throughout the United Nations Convention on the Rights of the Child. As Justice McReynolds famously said in Pierce v Society of Sisters 268 US 510 (1925), at 535, “The child is not the mere creature of the State". 21. That is why the Review of Child Care Law (Department of Health and Social Security, 1985)) and the white paper, The Law on Child Care and Family Services (Cm 62, 1987), which led up to the Children Act 1989, rejected the suggestion that a child could be taken from her family whenever it would be better for her than not doing so. As the Review put it, “Only where their children are put at unacceptable risk should it be possible compulsorily to intervene. Once such a risk of harm has been shown, however, [the child’s] interests must clearly predominate” (para 2.13). 22. The principle of “unacceptable risk of harm” is easy enough to state but difficult to put into statutory language. The draft Children Bill annexed to the Law Commission’s Report on its Review of Child Law, Guardianship and Custody (1998, Law Com No 172) required that “the child concerned has suffered significant harm, or that there is a real risk of his suffering such harm” (clause 12(2)(a)). This was refined in the Bill presented to Parliament and eventually emerged in the so-called “threshold criteria” in section 31(2) of the Children Act 1989: “A court may only make a care order or a supervision order if it is satisfied - (a) that the child concerned is suffering, or is likely to suffer, significant harm; and (b) that the harm, or likelihood of harm, is attributable to - (i) the care given to the child, or likely to be given to him if the order were not made, not being what it would be reasonable to expect a parent to give to him; or (ii) the child’s being beyond parental control.” This case is about the meaning of the words “is likely to suffer significant harm". How is the court to be satisfied of such a likelihood? This is a prediction from existing facts, often from a multitude of such facts, about what has happened in the past, about the characters and personalities of the people involved, about the things which they have said and done, and so on. But do those facts have to be proved in the usual way, on the balance of probabilities? Or is it sufficient that there is a “real possibility” that they took place, even if the judge is unable to say that it is more likely than not that they did? 23. That issue was authoritatively determined in favour of the former solution by a majority of this House in In re H (Minors) (Sexual Abuse: Standard of Proof) [1996] AC 563. It was reaffirmed in two later decisions: see Lancashire County Council v B [2000] 2 AC 147 and In re O (minors) (Care Proceedings: Preliminary Hearing) [2004] 1 AC 523. The latter also supported, albeit obiter, the Court of Appeal decision in In re M and R (Child Abuse: Evidence) [1996] 2 FLR 195. There, the Court of Appeal had applied the same approach to the words “and harm which he has suffered or is at risk of suffering", a factor which, under section 1(3)(e) of the 1989 Act the court has to take into account when deciding what order, if any, will be best for the child. 24. In this case, the children’s guardian, with the support of the local authority and the children’s mother, seeks to over-turn the decision in In re H and over-rule In re M and R, in favour of a “real possibility” test. The children’s father, with the support of the interveners, the Children and Family Court Advisory and Support Service (Cafcass), seeks to uphold the present law. The factual background 25. As the case is still continuing, the least said about the factual background the better. It concerns the future of two children, a nine year old girl, NB, and a six year old boy, AB. Their parents are Mr and Mrs B, who began their relationship in 1996 and married in 1999. Mrs B has two children by her previous marriage, a 16 year old girl, R, and a 17 year old boy, S. They all lived together until April 2006, when Mr B left the family home, although he later visited from time to time. 26. Social services and the police became involved with the family shortly afterwards. N’s school became concerned about her possibly sexualised behaviour. In July 2006, Mrs B undoubtedly assaulted S in the street. Following that S left the family home and has not returned. Mrs B threatened to allege that S had sexually assaulted N if he persisted in an assault charge against her. Mrs B and R then both made false allegations of sexual abuse and assault against S. The police and social services began their inquiries. 27. Those inquiries were still continuing on 30 October 2006, when Mr B applied, with the support of the local authority, for residence orders in respect of N and A. Instead, the district judge made interim care orders in respect of R as well as N and A, on the basis of a plan to remove them all from Mrs B and place them with Mr B at his parents’ home. However, while they were being removed from home that evening, R alleged that Mr B had sexually abused her and had also assaulted her and S with a belt. R was placed with foster carers and has since returned to her mother’s care. N and A were placed with Mr B’s parents and Mr B moved out. In September 2007 they were moved to foster carers, where they remain. 28. The care proceedings were transferred to the High Court. A fact finding hearing took place before Charles J over 29 days in June and July 2007. As is now the practice, the local authority set out a statement of the basis upon which it was alleged that the section 31(2) criteria were met. The parents made a number of concessions but there remained a number of matters in dispute, amongst them R’s allegations of sexual abuse against Mr B. No-one is now persisting in the suggestion that S had sexually abused N or anyone else. |
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