Judgments - In Re B (Children) (Fc) Appellate Committee Lord Hoffmann Lord Scott of Foscote Lord R

(back to preceding text)

56.  But in a case such as this, as indicated by Butler-Sloss LJ in In re M and R, the “risk” is not an actual risk to the child but a risk that the judge has got it wrong. We are all fallible human beings, very capable of getting things wrong. But until it has been shown that we have, it has not been shown that the child is in fact at any risk at all.

57.  It is also important to keep separate the roles of the courts and the local authorities in the protection of children from harm. Where a local authority have reasonable cause to suspect that a child in their area is suffering or likely to suffer significant harm, they must make the inquiries necessary to enable them to decide whether they should take any action to protect the child and if so what (1989 Act, s 47(1)). This is done by way of a core assessment, conducted in accordance with the Framework for the Assessment of Children in Need and Their Families (Department of Health and others, 2000). This is “an in-depth assessment which addresses the central or most important aspects of the needs of a child and the capacity of his or her parents or caregivers to respond appropriately to those needs within the wider family and community context” (para 3.11). As such, it will clearly range far wider than the threshold criteria. It will form “a central part of the evidence supporting any application that the local authority may make for a care or supervision order” (Department for Children, Schools and Families, Children Act 1989, Guidance and Regulations, Volume 1, Court Orders, 2008, para 3.17). It will also form the basis for the plan for the future care of the child which the local authority must put before the court under section 31A of the 1989 Act (ibid, para 3.18).

58.   The local authority make the application for a care or supervision order under section 31(1) and the local authority will be responsible for carrying out any order which the court may make. The task of the court is to hear the evidence put forward on behalf of all the parties to the case and to decide, first, whether the threshold criteria are met and, second, what order if any will be best for the child. While the local authority may well take preliminary or preventive action based upon reasonable suspicions or beliefs, it is the court’s task when authorising permanent intervention in the legal relationship between parent and child to decide whether those suspicions are well-founded. As the Review of Child Care Law (1985, para 2.20) put it,

“One of our guiding principles has been that the court should be able to determine major issues such as the transfer of parental rights and duties where there is or may be a dispute between parents and local authorities, while the management of the case should be the responsibility of the local authority".

59.  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 may be. It is to confuse the role of the local authority, in assessing and managing risk, in planning for the child, and deciding what action to initiate, with the role of the court in deciding where the truth lies and what the legal consequences should be. I do not under-estimate the difficulty of deciding where the truth lies but that is what the courts are for.

60.  I am fortified in that conclusion by two things. The first is that Cafcass does not support the guardian’s stance in this appeal. Cafcass is the body responsible for safeguarding the interests of children in the family courts. It appoints the individual guardians. If Cafcass thought that the decision in In re H was causing serious difficulties and jeopardising the welfare of our most vulnerable children, no doubt it would have said so. The second is that Parliament has recently had the opportunity of reviewing the 1989 Act in the light of the inquiry into the tragic death of Victoria Climbié (The Victoria Climbié Inquiry, Report of an Inquiry by Lord Laming, 2003, Cm 5730). Children’s services have been thoroughly reorganised by the Children Act 2004, but no change has been made to the Act’s substantive provisions.

61.  The decisions in In re H, Lancashire County Council v B, and In re O fit together as a coherent whole. The court must first be satisfied that the harm or likelihood of harm exists. Once that is established, as it was in both the Lancashire and Re O cases, the court has to decide what outcome will be best for the child. It is very much easier to decide upon a solution if the relative responsibility of the child’s carers for the harm which she or another child has suffered can also be established. But the court cannot shut its eyes to the undoubted harm which has been suffered simply because it does not know who was responsible. The real answers to the dilemma posed by those cases lie elsewhere - first, in a proper approach to the standard of proof, and second, in ensuring that the same judge hears the whole case. Split hearings are one thing; split judging is quite another.

The standard of proof

62.  All of their Lordships in In re H were clear that there was one standard of proof, the balance of probabilities. But Lord Nicholls went on to say this at p586:

“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 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…. Ungoed-Thomas J expressed this neatly in In re Dellow’s Will Trusts [1964] 1 WLR 451, 455: ‘The more serious the allegation the more cogent is the evidence required to overcome the unlikelihood of what is alleged and thus to prove it.’” emphasis supplied)

If he had stopped there, perhaps there would have been no difficulty, provided that lawyers and courts paid attention to the whole passage, including the words which I have italicised, rather than extracting a single phrase. But he went on:

“This substantially accords with the approach adopted in authorities such as the well known judgment of Morris LJ in Hornal v Neuberger Products Ltd [1957] 1 QB 247, 266. This approach also provides a means by which the balance of probability standard can accommodate one’s instinctive feeling that even in civil proceedings a court should be more sure before finding serious allegations proved than when deciding less serious or trivial matters.”

“More sure” may be read as suggesting a higher standard than the simple preponderance of probabilities.

63.  Lord Lloyd, at pp 577-578 on the other hand, took a more straightforward line:

“In my view the standard of proof under [section 31(2)] ought to be the simple balance of probability however serious the allegations involved. . . . mainly because section 31(2) provides only the threshold criteria for making a care order. . . if the threshold criteria are not met, the local authority can do nothing, however grave the anticipated injury to the child, or however serious the apprehended consequences. This seems to me to be a strong argument in favour of making the threshold lower rather than higher. It would be a bizarre result if the more serious the anticipated injury, whether physical or sexual, the more difficult it became for the local authority to satisfy the initial burden of proof, and thereby ultimately, if the welfare test is satisfied, secure protection for the child. . .

There remains the question whether anything should be said about the cogency of the evidence needed to ‘tip the balance'. For my part I do not find those words helpful, since they are little more than a statement of the obvious; and there is a danger that the repeated use of the words will harden into a formula which, like other formulas (especially those based on a metaphor) may lead to misunderstanding.”

64.   My Lords, Lord Lloyd’s prediction proved only too correct. Lord Nicholls’ nuanced explanation left room for the nostrum, “the more serious the allegation, the more cogent the evidence needed to prove it", to take hold and be repeated time and time again in fact-finding hearings in care proceedings (see, for example, the argument of counsel for the local authority in Re U (A Child) (Department for Education and Skills intervening) [2004] EWCA Civ 567, [2005] Fam 134, at p 137. It is time for us to loosen its grip and give it its quietus.

65.  Indeed, later events made matters worse. In B v Chief Constable of the Avon and Somerset Constabulary [2001] 1 WLR 340, the issue was the standard of proof to be applied when finding the facts needed to make a sex offender order under section 2 of the Crime and Disorder Act 1998. The Court of Appeal held that these were civil proceedings, but Lord Bingham of Cornhill CJ said this about the standard of proof:

“30. It should, however, be clearly recognised, as the justices did expressly recognise, that the civil standard of proof does not invariably mean a bare balance of probability, and does not so mean 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 (see 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).

31. In a serious case such as the present the difference between the two standards is, in truth, largely illusory. . . .”

66.  In re H was neither referred to nor cited in that case, but of course the link could be made through the references to Hornal v Neuberger Products. However, In re H was cited in R (McCann and others) v Crown Court at Manchester [2002] UKHL 39, [2003] 1 AC 787. One issue was the standard of proof in finding the facts needed to make an anti-social behaviour order under section 1 of the Crime and Disorder Act 1998. Lord Steyn said this:

“37. Having concluded that the relevant proceedings are civil, in principle it follows that the standard of proof ordinarily applicable in civil proceedings, namely the balance of probabilities, should apply. However, I agree that, given the seriousness of matters involved, at least some reference to the heightened civil standard would usually be necessary (see Re H(minors)(sexual abuse: standard of proof) [1996] AC 563, 586D-H per Lord Nicholls of Birkenhead). . . . 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 those views.”

The House went on to hold that in anti-social behaviour order proceedings the court should apply the criminal standard of proof.

67.  The link with In re H having been made, it is not surprising that judges should think that the same “heightened” standard should also apply in care proceedings. In In re ET (Serious Injuries: Standard of Proof) [2003] 2 FLR 1205, Bodey J directed himself that, in applying the civil standard and “the Re H cogency test", he would have well in mind the dicta in B v Chief Constable of Avon and R (McCann) v Chief Constable of Manchester. So, if he found any facts it would be “on the basis that, in this very serious case, the difference between the civil and criminal standards of proof is ‘largely illusory’” (para 6) And who, in the light of the passages quoted above, can blame him?

68.   Fortunately for care proceedings, the status quo was restored by the Court of Appeal in In re U (A Child) (Department for Education and Skills intervening); In re B (A Child) (Department for Education and Skills Intervening) [2004] EWCA Civ 567, [2005] Fam 134. The issue was the approach to be taken to medical evidence in care proceedings following the decision of the Court of Appeal (Criminal Division) in R v Cannings [2004] 1 WLR 2607. Dame Elizabeth Butler-Sloss P, giving the judgment of the court, said this:

“13. 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 or 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 preventive 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 . . . “

69.  My Lords, I entirely agree. There are some proceedings, though civil in form, whose nature is such that it is appropriate to apply the criminal standard of proof. Divorce proceedings in the olden days of the matrimonial “offence” may have been another example (see Bater v Bater [1951] P 35). But care proceedings are not of that nature. They are not there to punish or to deter anyone. The consequences of breaking a care order are not penal. Care proceedings are there to protect a child from harm. The consequences for the child of getting it wrong are equally serious either way.

70.  My Lords, for that reason I would go further and announce loud and clear that the standard of proof in finding the facts necessary to establish the threshold under section 31(2) or the welfare considerations in section 1 of the 1989 Act is the simple balance of probabilities, neither more nor less. Neither the seriousness of the allegation nor the seriousness of the consequences should make any difference to the standard of proof to be applied in determining the facts. The inherent probabilities are simply something to be taken into account, where relevant, in deciding where the truth lies.

71.  As to the seriousness of the consequences, they are serious either way. A child may find her relationship with her family seriously disrupted; or she may find herself still at risk of suffering serious harm. A parent may find his relationship with his child seriously disrupted; or he may find himself still at liberty to maltreat this or other children in the future.

72.  As to the seriousness of the allegation, there is no logical or necessary connection between seriousness and probability. Some seriously harmful behaviour, such as murder, is sufficiently rare to be inherently improbable in most circumstances. Even then there are circumstances, such as a body with its throat cut and no weapon to hand, where it is not at all improbable. Other seriously harmful behaviour, such as alcohol or drug abuse, is regrettably all too common and not at all improbable. Nor are serious allegations made in a vacuum. Consider the famous example of the animal seen in Regent’s Park. If it is seen outside the zoo on a stretch of greensward regularly used for walking dogs, then of course it is more likely to be a dog than a lion. If it is seen in the zoo next to the lions’ enclosure when the door is open, then it may well be more likely to be a lion than a dog.

73.  In the context of care proceedings, this point applies with particular force to the identification of the perpetrator. It may be unlikely that any person looking after a baby would take him by the wrist and swing him against the wall, causing multiple fractures and other injuries. But once the evidence is clear that that is indeed what has happened to the child, it ceases to be improbable. Some-one looking after the child at the relevant time must have done it. The inherent improbability of the event has no relevance to deciding who that was. The simple balance of probabilities test should be applied.

Split hearings

74.   Care proceedings are not a two stage process. The court does have two questions to ask. Has the threshold been crossed? If so, what will be best for the child? But there are many cases in which a court has two or more questions to ask in the course of a single hearing. The same factual issues are often relevant to each question. Or some factual disputes may be relevant to the threshold while others are relevant to the welfare checklist: it may be clear, for example, that a child has suffered an injury while in the care of the mother, but whether the father or step-father has a drink problem and has been beating the mother up is extremely relevant to the long term welfare of the child.

75.   The purpose of splitting the hearing is not to split the two questions which the court must answer. It is to separate out those factual issues which are capable of swift resolution so that the welfare professionals have a firm foundation of fact upon which to base their assessments of family relationships and parenting ability: see In Re S (Care Proceedings: Split Hearing) [1996] 2 FLR 773. A fact finding hearing is merely one of the case management possibilities contemplated by the new Public Law Outline. It is not a necessary pre-condition for the core professional assessment, which the Public Law Outline now expects should normally be done before the proceedings even begin (Judiciary of England and Wales and Ministry of Justice, The Public Law Outline, Guide to Case Management in Public Law Proceedings, April 2008, President’s Practice Direction, para 9.2, pre-proceedings checklist and Flowchart). There is no point in splitting the issues if the facts cannot be determined relatively quickly, still less if it is unlikely to result in clear cut findings to help the professionals in their work.

76.  But the finding of those facts is merely part of the whole process of trying the case. It is not a separate exercise. And once it is done the case is part heard. The trial should not resume before a different judge, any more than any other part heard case should do so. In the particular context of care proceedings, where the character and personalities of the parties are important components in any decision, it makes no sense at all for one judge to spend days listening to them give evidence on one issue and for another judge to send more days listening to them give evidence on another. This is not only a wasteful duplication of effort. Much useful information is likely to fall between the gaps. How can a judge who has not heard the parents give their evidence about how the child’s injuries occurred begin to assess the risk of letting them care for the child again? The experts may make their assessments, but in the end it is for the judge to make the decision on all the evidence before him. How can he properly do that when he has heard only half of it?

Human rights

77.  Children have both the right to life under article 2, and the right not to be subjected to torture or inhuman or degrading treatment or punishment under article 3, of the European Convention on Human Rights. States are required to take measures to protect them, principally in form of effective deterrence through the criminal law (A v United Kingdom (1999) 27 EHRR 611) but also through taking steps to remove them from an abusive situation about which the authorities knew or ought to have known (Z v United Kingdom (2002) 34 EHRR 3). But there is nothing in those cases to suggest that the authorities are failing in their duty to protect children from inhuman or degrading treatment because they are unable permanently to remove children from their families on the basis of unproven allegations. Deterrence through the criminal law depends upon proof to the criminal standard. The duty to take positive protective steps depends upon the authorities having reasonable notice of the risk (see Osman v United Kingdom (1998) 29 EHRR 245). In Osman the police knew of the threats to kill; in Z the local authority were well aware of the long history of neglect and abuse. For a risk to be “real” it has to be founded on real facts not unproven speculations.

78.  Children also have the right to respect for their family lives under article 8 of the Convention. This is, of course, a qualified right. Interference by the authorities is justified if it is “necessary in a democratic society” in order to protect the child’s own rights, which in this context include the right to be protected from harm. But there has to be a “pressing social need” for the interference, the reasons for it have to be “relevant and sufficient", and the interference itself has to be proportionate to the need: see, for example, K & T v Finland (2001) 31 EHRR 18, Scozzari & Giunta v Italy (2002) 35 EHRR 12, Kutzner v Germany (2002) 35 EHRR 25. It is difficult to see how the reasons for taking a child away from her family for the indefinite future can be “relevant and sufficient” if they rely upon unproven allegations as the only basis for inferring that the child is at risk of harm.

79.   For my part, therefore, I see no reason to revise the existing law in the light of the Human Rights Act 1998.

Conclusion

80.  I would therefore dismiss this appeal. However, two consequential points arise. Part of the judge’s order in preparation for the next part of the hearing was a draft letter of instruction to the experts. This was designed to point up the problems with the present law as the judge saw them. The parties are all content with the much simpler draft proposed by Cafcass for cases such as this:

“The court has considered the allegations of [type of harm] made against [name(s) of alleged abuser(s)] and has concluded that the court is not satisfied that they are more likely than not to be true.

In those circumstances the fact that those allegations were made remains part of the factual matrix of the family history and the ramifications of their having been made may well be relevant to your assessment. However, given that the court was not satisfied that the allegations were true, they cannot form the basis for asserting that there is a current risk of the same type of harm occurring in the future.”

This would certainly seem a more appropriate form of words than that chosen by the judge for use in the present case and may well be suitable for use generally.

81.  The second point is that, although not invited to do so by any of the parties, the judge recused himself from the case. His concern was that he had deliberately instigated this test to the existing law and others might perceive that he would find it difficult put out of his mind his view that the “real possibility” ought to be taken into account at the welfare stage. However, all judges are from time to time required to apply legal principles with which they have intellectual difficulty. The problem which the judge saw in this case will arise in any other care case in which allegations are made but not found on the balance of probabilities to be true. If the judge is not fitted to try this case, it might be said that he is not fit to try any case in which the same problem could arise, and that would be absurd. For all the reasons given earlier, the same judge should hear the whole case. Indeed, this case is a good illustration, for any subsequent judge might well have difficulty in extracting the really important findings from such a long and complicated judgment on the factual issues.

82.  I would therefore send the case back for the experts to be instructed and the judge to complete his hearing of the case in the light of the judgments in this House. As with so many family cases, it is likely that things have moved on since these proceedings were begun. The problems which loomed so large in the past may have receded while others have reared their heads. In family life, as in family proceedings, nothing stands completely still.

 
Previous

Lords  Parliament  Commons  Search  Contact Us  Index 


© Parliamentary copyright 2008
Prepared 11 June 2008