A Council v B & Ors

In care proceedings, fact-finding on disputed allegations applies the civil standard. The court must decide matters from evidence, facts proved to the appropriate standard and reasoning, having regard to the evidence as a whole. Seriousness affects the assessment of inherent probabilities but does not create a heightened standard of proof.

The concepts of more likely than not and real possibility perform different functions. A real possibility of past harm does not itself prove that harm on the balance of probabilities. Where competing accounts remain equally unresolved, the court must not resolve the issue by guesswork or by making an intermediate finding unsupported by evidence and reasoning.

The local authority brought public law proceedings concerning three children. The parents conceded that the statutory threshold was crossed on grounds including physical and emotional harm, neglect and harm to social and educational development. The hearing therefore required findings beyond the concessions, principally to inform disposal and future risk management.

The disputed issues included domestic violence, the family’s allegation culture, the treatment of the older children in relation to schools, alleged sexual abuse of one child by her father, and alleged sexual abuse of another child by her older sibling. The central question was whether the disputed allegations could be proved to the civil standard and, where they could not, what conclusions could properly be drawn from the remaining evidence.

1. Fact-finding and standard of proof. The court applied the balance of probabilities. Findings had to be based on evidence, facts established to the civil standard and sufficiently convincing reasoning. The judge was required to assess the evidence in its totality rather than in separate compartments. Serious allegations require careful attention to inherent probabilities, but they do not attract a different standard of proof.
2. Different legal functions of likelihood. “More likely than not” determines whether a past event is proved. “Real possibility” is the lower test used in assessing future risk or likelihood of harm. The two tests must not be conflated.
3. Stark factual alternatives. Even where the evidence presents two stark alternatives, an inability to decide which is more likely does not establish either alternative. The court must not attribute weight mathematically or reach a conclusion by suspicion or guesswork. If the evidence and reasoning do not permit a properly founded finding, both the allegation and denial may remain real possibilities.
4. Application to the allegations. The judge found that the parents and older children had participated in a family culture of exaggerated or false allegations, particularly in the campaign against S and in disputes with schools. Those findings materially reduced the reliability of unsupported allegations. The allegations that S had sexually abused N were rejected. The court could not safely determine whether R had been sexually abused by Mr B as alleged, or whether the allegations were false. It therefore made no positive finding of sexual abuse, but concluded that there remained a real possibility that it had occurred. If the alleged persistent abuse had occurred, it was more likely than not that Mrs B knew, or ought reasonably to have appreciated the risk, and failed to protect R.
5. The threshold had been conceded. Additional findings were nevertheless necessary to permit an informed decision at the disposal and risk-management stage. The judgment’s further observations about the treatment of unproved allegations at disposal, exoneration and the interaction with Convention rights were expressly presented as matters requiring further argument and were not final holdings.