In re H (Minors) (Sexual Abuse: Standard of Proof)

In care proceedings, the applicant bears the burden of proving the threshold conditions in section 31(2) of the Children Act 1989. Past or present facts must be proved on the ordinary civil standard. The seriousness of an allegation does not raise that standard, although inherent improbability may require stronger evidence before the balance is satisfied.

A child is ‘likely’ to suffer significant harm where there is a real possibility which cannot sensibly be ignored, having regard to the nature and gravity of the feared harm. The prediction must rest on proved facts and proper inferences. An unproved allegation and the judge’s resulting suspicion cannot themselves provide the factual foundation. Proven surrounding facts, including a combination of individually minor but profoundly worrying features, may nevertheless establish future risk even though alleged past maltreatment has not been proved.

A local authority sought care orders for three girls on the sole basis that their stepfather had sexually abused their older sister. The stepfather had been acquitted at a criminal trial. After a seven-day hearing, the county court judge did not find the alleged abuse proved, although he considered that the allegation might be true, and dismissed the applications.

The Court of Appeal, by a majority, dismissed the authority’s appeal: [1995] 1 F.L.R. 643. The authority appealed to the House of Lords. The principal questions concerned the meaning of ‘likely’ in section 31(2) of the Children Act 1989, the civil standard for proving sexual abuse, and whether an unproved allegation could nevertheless found a conclusion that the younger children faced significant future harm.

Appeal dismissed by a majority of three to two. Lord Nicholls of Birkenhead delivered the leading speech. Lord Goff of Chieveley and Lord Mustill agreed with his reasons. Lord Browne-Wilkinson and Lord Lloyd of Berwick dissented.

1. Per Lord Nicholls, ‘likely’ in section 31(2)(a) of the Children Act 1989 means a real possibility of significant harm which cannot sensibly be ignored, assessed in light of the nature and gravity of the feared harm. It does not mean that harm is more likely than not. The same meaning applies to corresponding uses elsewhere in the Act and to the care ‘likely’ to be given under section 31(2)(b).

2. The applicant bears the legal burden of affirmatively establishing the section 31(2) conditions. Disputed past or present facts are proved on the ordinary civil standard of the balance of probabilities. Seriousness does not create a higher or intermediate standard. It affects the evidential assessment because the more inherently improbable an event, the stronger the evidence needed to establish it on that balance.

3. A finding of future risk must have a factual foundation. A disputed allegation which has not been proved is not a fact, and the judge’s unresolved suspicion cannot supply the deficiency. This protects parents from intervention based only on suspicion. The rule does not require proof of past harm in every case. Proven family history, relationships, attitudes, omissions, threats, abnormal behaviour and parental responses may together establish a real possibility of future harm, even though alleged maltreatment itself remains unproved.

4. Here, the local authority’s case depended exclusively on proof that the older girl had been abused. Without that fact there was no basis for thinking that the younger girls were at risk. Reading the judgment as a whole, the county court judge had not applied a materially higher standard than the proper civil standard. Once abuse was not proved, the statutory threshold was not crossed.

Dissent. Lord Browne-Wilkinson and Lord Lloyd would have allowed the appeal. They considered that proved subsidiary facts and evidence capable of supporting a real possibility that abuse occurred could form the basis of a prospective risk assessment, even though the alleged abuse was not itself proved. Lord Lloyd also considered that the judge had applied an excessively high standard of proof. He would have remitted the case for a further hearing if concern continued.

1. House of Lords: The local authority’s appeal was dismissed by a majority of three to two. The decision of the Court of Appeal was upheld.
2. Court of Appeal: By a majority, Sir Stephen Brown P and Millett LJ dismissed the local authority’s appeal; Kennedy LJ dissented: [1995] 1 F.L.R. 643.
3. Nottingham County Court: Judge Davidson QC dismissed the applications for care orders after finding that the alleged sexual abuse had not been proved to the required civil standard.