Re B (Children)

[2008] UKHL 35

Independent editorial summary — not the official judgment. Read the full judgment via the source link.

This page mainly applies to England and Wales. Scotland and Northern Ireland may have different rules — check the jurisdiction before relying on this information.

Ratio Decidendi

The standard of proof applicable to findings of fact in care proceedings under the Children Act 1989 is the ordinary civil standard of the balance of probabilities. There is no special or higher standard for serious allegations such as sexual abuse. An allegation is either proved on the balance of probabilities or it is not proved: there is no intermediate finding of 'real possibility'. The approach in In re H (Minors) (Sexual Abuse: Standard of Proof) [1996] AC 563, which suggested that the more serious the allegation the more cogent the evidence required, was disapproved as having given rise to confusion about an enhanced standard of proof for grave allegations.

Facts

Care proceedings were brought by a local authority in relation to four children. The father was alleged to have sexually abused one of the daughters. The case concerned the threshold conditions under s.31 Children Act 1989: the court must find that the child 'is suffering, or is likely to suffer, significant harm'. The trial judge found that the threshold was not crossed because, while she could not exclude the possibility that the father had abused the child, she could not be satisfied on the balance of probabilities that he had. The Court of Appeal allowed the appeal on the ground that the judge had applied too high a standard of proof. The father appealed to the House of Lords.

Judgment Summary

The House of Lords dismissed the father's appeal. Baroness Hale, with whom Lord Hoffmann, Lord Rodger, Lord Walker, and Lord Scott agreed, undertook a comprehensive review of the law on the standard of proof in civil and family proceedings. She firmly held that the standard of proof in care proceedings is the balance of probabilities — nothing more and nothing less. She disapproved of the approach in In re H [1996] under which, the graver the allegation, the more cogent the evidence needed: this had led lower courts to apply what was effectively a higher standard in serious cases. In a civil case there are only two possible findings: a fact is either proved or it is not proved, on the balance of probabilities. A finding that something 'might' or 'possibly' or 'probably' happened — without reaching the threshold of the balance of probabilities — is not a proper judicial finding. Lord Hoffmann added that the law does not operate a sliding scale where the threshold rises with the gravity of the allegation. Baroness Hale acknowledged that inherent improbability is relevant as a factor in the assessment of evidence, but confirmed it does not alter the standard of proof.

Key Quotes

"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."
— Baroness Hale at [2]

"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."
— Baroness Hale at [70]

"The inherent probabilities are simply something to be taken into account, where relevant, in deciding where the truth lies."
— Baroness Hale at [72]

Subsequent Treatment

Followed

Consistently followed as the definitive statement of the standard of proof in all family proceedings. Applied in Re S-B (Children) [2009] UKSC 17, where the Supreme Court again confirmed the binary balance of probabilities standard.

Applied

Applied in Re J (Care Proceedings: Past Findings) [2013] EWCA Civ 1060, where the Court of Appeal confirmed that findings of fact in family proceedings must be made on the balance of probabilities, with no heightened standard for grave or sexual allegations.

Considered

Considered in Re A (A Child) [2015] EWCA Civ 1388, where the Court of Appeal reminded courts that Re B requires a positive finding on the balance of probabilities and that failure to find something proved is not a finding that it did not happen.