Re B (Children) (Care Proceedings: Standard of Proof)

[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 for the facts necessary to establish the threshold conditions under section 31(2) of the Children Act 1989, and the welfare considerations under section 1, is the simple balance of probabilities, neither more nor less; neither the seriousness of the allegation nor the seriousness of the consequences alters that standard. A prediction that a child is likely to suffer significant harm must be founded on facts proved on the balance of probabilities: unresolved judicial doubts and suspicions, or a mere real possibility that harm occurred, cannot cross the threshold.

Facts

Care proceedings concerned a nine-year-old girl and a six-year-old boy. Their teenage step-sister R alleged that the children's father, Mr B, had sexually abused her. After a 29-day fact-finding hearing Charles J was unable to conclude on the balance of probabilities either that the abuse had occurred or that it had not, but concluded that there was a real possibility that it had. The children's guardian, supported by the local authority and the mother, invited the House to depart from In re H (Minors) (Sexual Abuse: Standard of Proof) [1996] AC 563 so that such a real possibility could found the threshold conditions in section 31(2) of the Children Act 1989.

Judgment Summary

The House of Lords unanimously dismissed the guardian's appeal. Baroness Hale, giving the leading opinion, unhesitatingly declined the invitation to depart from In re H: the threshold must be founded on facts proved on the balance of probabilities, and to allow courts to act on unproven allegations and unsubstantiated suspicions would deny families the protection the threshold is there to provide. She announced loud and clear that the standard of proof for the threshold under section 31(2) and the welfare considerations under section 1 is the simple balance of probabilities, neither more nor less, disapproving the notion of a heightened civil standard that had grown out of Lord Nicholls' dicta in In re H. Lord Hoffmann agreed, describing the law as a binary system in which a fact in issue either happened or it did not, inherent probabilities being merely matters of common sense to be weighed in the evidence; the case was sent back for the same judge to complete the hearing.

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."
— Lord Hoffmann at [2](verbatim, verified against the judgment)

"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."
— Baroness Hale of Richmond at [70](verbatim, verified against the judgment)

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.