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Lord Justice Hughes backs Lords decision on standards of proof

Lord Justice Hughes used the annual Hershman / Levy Memorial lecture to back the recent decision of the Lords in B (Children) in the debate over standards of proof in fact finding hearings. After a review of his experience in the family courts, contrasting family litigation with his experience elsewhere, he made four key, pragmatic points as to why he supports the Lords decision which rejected any attempts to revisit the principles of Re H & R.

First,  "proof on the balance of probabilities means what it says. It is a low threshold." While there will remain "a tiny number of cases in which it is genuinely impossible on the evidence to resolve the question whether the alleged facts are more likely than not to have happened....such tiny rump of cases will be vanishingly small." 

Secondly he pointed out that it is past harm that is being alleged and if it has not been established, then "what you have decided is that it probably never occurred" and that is not a proper basis for State intervention.

Thirdly, he did not see "the business of proof as a legal fiction" though it is not helpful "to try to formulate proof as a matter of percentages". Although you can put a figure to the threshold of balance of probabilities, 51%, "it is quite meaningless to calibrate your conclusion beyond that".

Fourthly, overturning the Re H & R test would see the "easy abandonment of the discipline of fact finding.  Why bother to find the facts, if a bare but unproven possibility of past harm will do to pass the threshold criteria?" That would merely leave questions unresolved so that no one can move on.

The event, organised by the Association of Lawyers for Children, was held at St Philips Chambers in Birmingham of Thursday 26 June. The event is held annually to commemorate the lives of former ALC members, David Hershman QC and Allan Levy QC and was attended by nearly 100 leading child lawyers and judges.

After the speech, Lord Justice Hughes   He also presented Outstanding Newcomer in the Field of Child Law award which went to Matthew Montanaro of Blakemores solicitors in Leamington Spa. Donations at the event helped to raise £340 towards charities associated with David and Allan, Acorns Children's Hospice and Great Ormond Street Hospital respectively.

The full text of Lord Justice Hughes' speech will be published in the Latest News section of the ALC website later today.

picture of Matthew Montanaro being awarded ALC outstanding newcomer award

 Matthew Montanaro receiving the ALC award for Outstanding Newcomer

 


 


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