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Re B: The ‘Heightened Civil Standard’ Laid to Rest

Jo Delahunty and Alison Grief, of Garden Court Chambers, highlight the demise of the "heightened civil standard of evidence" in the wake of the recent Lords decision in Re B.

image of Jo Delahnuty QC Garden Court Chambersimage of Alison Grief Carden Court Chambers

Jo Delahunty QC and Alison Grief, Barristers, Garden Court Chambers

On 9th June 2008 the House of Lords gave judgment in Re B (Children) [2008] UKHL 35; [2008] 2 FLR 141. Some hoped (and others feared) that the case would reduce the standard of proof in children’s cases, allowing the threshold for state intervention to be crossed based on a new, lower, test of ‘real possibility’ as opposed to the civil standard of’ beyond reasonable doubt’.  The appeal was fronted by the children’s guardian, supported by the local authority and the mother. The father alone resisted: until CAFCASS were granted leave to intervene and vigorously opposed the Petition.

The House were unimpressed both with the suggestion that a third tier of proof was warranted and with the reasons purporting to substantiate it.

The House robustly and unanimously rejected the appeal and confirmed that the binary system of proof remained appropriate and just: disputed facts were either proven on the balance of probabilities and found to have happened, or were not established to that requisite standard and thus were to be treated as not having occurred. With Day 1 having determined the appeal in the respondent and interveners favour, Day 2 was taken up by arguments raised by CAFCASS, asking the Lords to reject the suggestion, oft submitted in lower courts, that a ‘heightened ‘ standard of proof / or cogency of evidence was required to prove disputed allegations in serious child protection cases . 

The facts that gave rise to the appeal
The facts of the case that gave rise to the appeal were familiar: issues of emotional harm and violence affecting four children with specific allegations of sexual abuse made by one teenage girl against her step-father.

The judicial rebellion against Re H and R
The matter came before Charles J in a fact finding hearing to determine the factual basis for state intervention in the families complicated life: on what basis, if any, was a child  “suffering” or “likely to suffer” significant harm attributable to his parents’ care  ( the ‘threshold criteria’ under Section 31 Children Act 1989).

In a painstaking and meticulous judgment, Charles J concluded that, given the culture within the family of making and retracting allegations generally and the resulting lack of credibility of both the alleged victim and perpetrator, he was unable to find that it was more likely than not that the abuse occurred. However, he then went on to determine that, equally, he could not be satisfied that there was no real possibility that it did not occur. Consequently, he found, in his view as a matter of logic, that there was a ‘real possibility’ that the abuse had occurred. Despite having conducted the fact finding hearing, Charles J was not then allocated to hear the disposal/ welfare hearing

Bound by the judgment in Re H (Minors) [1996] AC 563 which said that harm could not be founded on ‘mere suspicion’, Charles J granted leave to appeal his decision with a view to the House of Lords reconsidering the dicta in Re H. He did so seeking to distinguish his ‘finding’ from ‘suspicion’ and cited recent developments in the law, as good reason. Charles J alluded to the court’s need to protect a child when the ‘real possibility’ of that harm had been established. He looked to immigration law and its test of ‘real possibility of harm’ precluding a state’s capacity to return a person to their country of origin for potential support. The Appellant (the Children’s Guardian) adopted and supported all points raised by Charles J and sought to lend weight to them by reliance upon the views of Ryder J expressed in an speech delivered to NYAS and later reproduced as in FLR Article ‘ The Risk Fallacy: a Tale of Two Thresholds ‘ ( 2008 FLR 28).

The Lords Response in Re B
In a forthright and succinct judgment the House, unanimously, rejected all grounds of the appeal. Lord Hoffman starkly reminded all concerned that

“the law operates a binary system in which the only values are 0 and 1……. If a legal rule requires a fact to be proved, a judge or jury must decide whether or not it happened. There is no room for a finding that it might have happened”

In her Leading Judgement Baroness Hale concurred: “[a judge] is not allowed to sit on the fence”. Moreover, she forcefully endorsed the comments made by Lord Nicholls 13 years earlier, she pointed out that the course sought by the appellant s would effectively reverse the burden of proof. She was alive to the tensions raised and balance to be drawn in the state’s ability to intervene in a family’s life verses a child’s right to be protected from significant harm, abuse and neglect were they to remain within it. 

The Next Question for the Lords posed by CAFCASS
As an organisation created to identify and promote children’s welfare, CAFCASS were clear that the barrier for continued state intervention was appropriately crossed by the threshold criteria being established on the balance of probabilities. Their concern was to ensure this test was applied in practice for all cases and not artificially heightened in the most serious cases of abuse, where ironically the child required the greater protection. This was their experience in child protection conferences across the land and in lower courts. Sex abuse, thought to be difficult to prove, was often put to one side in child protection registration or in court hearings and a lowest case denominator approach adopted for categorisation or threshold findings sought: for example, neglect rather than sexual abuse. This course potentially exposed a child to a risk that was not properly identified, proved and managed whilst also allowing the stain of suspicion to linger in referral and case records tainting the assessment of parent and child alike.

The origin of this dilemma lay, CAFCASS argued, in the interpretation of  Lord Nicholls leading judgement in Re H

“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”

Despite Lord Nicholls dismissing the notion that there should be anything other than two standards of proof, in practice the approach of practitioners, lawyers and court was confused. CAFCASS feared the perverse effect of the dicta was that those children who most needed protection were the ones for whom it was most difficult to establish the facts and invoke the court’s protective measures.
CAFCASS thus successfully cross petitioned the Lords for a re-statement on the law as to the existing test. They asked that it be reconfirmed as the ‘balance of probabilities simpliciter’. They found a sympathetic audience in their Lordships and in Baroness Hale in particular .

The Lords Reviewed The Genesis Of The Perception Of ‘Heightened Standard’ When Serious Allegations Fell For Determination.
In Re B Lord Hoffman categorised the previous cases thus:

1) Cases which are civil proceedings but the seriousness of the consequences required the criminal standard.
2) Where some event is inherently improbable, strong evidence may be needed to demonstrate its occurrence.
3) Cases where judges are simply confused about the standard or proof as opposed to the role of inherent improbabilities in deciding whether the burden of proving a fact to a given standard has been discharged”. 

The Lords went on to address whether a ‘higher degree of probability’ meant a higher standard?
Lord Bingham clearly thought so in B v Chief Constable of the Avon and Somerset Constabulary [2001] 1 ALL ER 562 (Sex Offender Orders Sec 2 Crime & Disorder Act 1998) when he stated

“The civil standard is a flexible standard…..In a serious case such as the present, the difference between the two standards is, in truth, largely illusory”. 

Lord Steyn, in R (Mc Cann) v Crown Court at Manchester [2002] 4 ALL ER 593(ASBO’s ) in referring to Lord Nicholls in Re H described it as the “heightened civil standard”.

In the care case, Re ET (Serious Injuries: Standard of Proof) [2003] 2 FLR 1205 Bodey J stated that “in a serious case such as the present [serious head injuries] the difference between the two standards is, in truth, largely illusory.” Baroness Hale, in Re B, fairly remarks that given the previous dicta “who…can blame him”?

Although the Court of Appeal had been quick to stamp on this development in Re U and Re B [2005] Fam 134, the recipe for confusion was obvious. If judges of distinction allowed the distinction between the criminal and civil standard to become blurred, how much better equipped were social workers, case managers and legal advisors at ground level to unravel the confusion ?

Children Act proceedings are civil proceedings. If there are only two standards of proof as per Lord Nicholls in Re H, where was there room, CAFCASS argued in care cases for a ‘commensurate’ or ‘heightened’ standard?

Does Re B Provide the Answers?
‘Yes’ is the resounding answer.

Baroness Hale in the lead judgment

“announce[s] loud and clear that the standard of proof in finding the facts necessary to establish the threshold criteria….or the welfare considerations… 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…The inherent probabilities are simply something to be taken into account, where relevant, in deciding where the truth lies”.

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 families from the intervention of the state, no matter how well meaning that intervention may be”

Readers will note that cogent evidence will still be required to prove alleged acts of harm. This remains an essential component of the trial process otherwise the balance of probabilities test would be undermined by default. What has now been clarified is that there is no escalating standard of proof, thus raising the evidential barrier, for 'more serious allegations’ simply because of their gravity. Re B confirms that serious allegations must be proven on cogent evidence but, crucially clarifies they no longer have the additional burden of 'inherent improbability' as an evidential load to bear. Thus the link between seriousness and improbability is broken but the need for cogent evidence to prove the allegations to the civil standard remains and is reinforced.

But what of other civil proceedings?
Baroness Hale had this to say.

“There are some proceedings, though civil in form, whose nature is such that it is appropriate to apply the criminal standard of proof.” 

This is Lord Hoffman’s first category and a class of actions which Lord Steyn in McCann stated should be made plain from the outset that, although civil in nature, are to be judged by the criminal standard of proof.

Other than those cases, Lord Hoffman states “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.”

Other Outcomes: The Value Of The Fact Finding Hearing And Judicial Continuity
The value of the balance of probabilities test was buttressed by the reaffirmed value of the fact finding hearing: a resource too oft threatened by court time constraints compounded by inconsistent judicial allocation between fact finding and final welfare determination hearings. Baroness Hale made plain the value of fact finding hearings as an integral part of the courts process in which judicial continuity was a key component. They should not now be treated as an optional extra nor ‘hived’ off to rotating tribunals.

Jo Delahunty QC and Alison Grief are specialist family barristers at Garden Court Chambers and were instructed by CAFCASS in the Re B case.