H & Ors (minors), Re

The House considered the meaning of "likely to suffer significant harm" in section 31(2) of the Children Act 1989, the appropriate standard of proof in care proceedings and whether unproved allegations can found a finding of future risk. The court held that "likely" in section 31(2)(a) means a real possibility or a serious risk, not a requirement that harm be more likely than not. The normal civil standard of proof (balance of probabilities) applies in family proceedings, with judges taking account of the inherent improbability of serious allegations when weighing evidence, rather than adopting a distinct intermediate standard. Finally, the court held that a care-order threshold finding must be based on facts proved or admitted; mere suspicion or unresolved judicial doubt about unproved past misconduct cannot by itself satisfy the section 31(2) threshold, although evidence which falls short of proving past abuse may still, when combined with other proved facts, support a finding of future risk.

This appeal concerned care order applications by a local authority under section 31(2) of the Children Act 1989 in respect of three younger daughters. The local authority relied solely on allegations that the stepfather had sexually abused the eldest daughter (C). C had given evidence in criminal proceedings in which the stepfather was acquitted. At first instance Judge Davidson found he could not be sure to the requisite standard that the alleged abuse had occurred and dismissed the care order applications. The Court of Appeal dismissed the local authority's appeal (Kennedy L.J. dissenting). The matter came to the House of Lords.

The specific legal issues were (i) the meaning of "likely to suffer significant harm" in section 31(2)(a); (ii) the standard of proof applicable in care proceedings when serious allegations (including sexual abuse) are in issue; and (iii) whether the court must first find past abuse on the balance of probabilities before it can conclude there is a real risk of future harm.

The House held (majority) that: (i) "likely" denotes a real possibility or substantial risk which cannot sensibly be ignored and need not mean "more likely than not"; (ii) the ordinary civil standard of proof—the balance of probabilities—applies in family proceedings, with judges bearing in mind the inherent improbability of very serious allegations when assessing the evidence; and (iii) a finding under section 31(2)(a) must be based on facts proved or admitted. Unproved allegations and judicial suspicion alone do not constitute a factual basis for surmounting the care-order threshold, although evidence which does not establish past misconduct may nevertheless, in combination with other proved facts, justify a conclusion of real risk for the future.

The House therefore dismissed the local authority's appeal and affirmed that the threshold for care orders requires proved facts capable of supporting a conclusion of future risk, protecting parents from removal of children on the basis of suspicion alone.

Appeal dismissed. The House held that "likely" in section 31(2)(a) of the Children Act 1989 means a real possibility or substantial risk (not necessarily more likely than not); the ordinary civil standard of proof (balance of probabilities) applies in family proceedings, with judges taking account of the inherent improbability of serious allegations; and the threshold conditions in section 31(2) must be founded on facts proved or admitted — unproved allegations or mere judicial suspicion cannot alone satisfy the threshold.

Nottingham County Court (Judge Davidson Q.C.) — applications for care orders dismissed (he found he could not be sure on the requisite standard that alleged sexual abuse had occurred). Court of Appeal [1995] 1 F.L.R. 643 — appeal by local authority dismissed (Kennedy L.J. dissenting). Appeal to House of Lords [1995] UKHL 16 (this judgment).