In re B (Children)

The House of Lords reaffirmed that the threshold in section 31(2)(a) of the Children Act 1989 requires facts relied on to be proved on the balance of probabilities; unresolved suspicions or a "real possibility" that past harm occurred cannot, by themselves, found a conclusion that a child "is likely to suffer significant harm". The court held there is a single civil standard of proof (the balance of probabilities) for facts in issue in care proceedings; the seriousness or consequences of an allegation do not alter that standard, though inherent probabilities are a matter to be taken into account in weighing evidence. The judgment distinguished the investigatory and interim stages (where suspicion and reasonable cause language is appropriate) from the final judicial decision under section 31, emphasised separation of roles between local authorities and the court, and endorsed that the same judge should, wherever practicable, hear the whole case.

This was an appeal concerning the proper legal test for establishing the threshold under section 31(2)(a) of the Children Act 1989: whether unproven allegations that amount to a "real possibility" of past abuse can suffice to show that a child "is likely to suffer significant harm" in the future.

Background and parties:

• The proceedings concerned two children (N and A) and complex family allegations including disputed allegations of sexual abuse made by another child, R.
• The local authority and the children's guardian supported an approach that would permit a finding of likelihood of future harm to be based, in some circumstances, on a real possibility that past abuse had occurred. The father and intervening Cafcass supported maintaining established authorities requiring proof on the balance of probabilities.

Procedural history:

• A lengthy fact-finding hearing before Charles J produced detailed findings but the judge said he could not decide on the balance of probabilities whether the alleged sexual abuse of R by Mr B had occurred and concluded there was a "real possibility" that it had. The judge prepared to treat that as relevant to future risk and gave leave to appeal to the Court of Appeal.
• The Court of Appeal dismissed the guardian's appeal and gave leave to appeal to the House of Lords. The appeal to the House of Lords raised the principle established in In re H (Minors) (Sexual Abuse: Standard of Proof) [1996] AC 563.

Issues framed by the court:

• Does the phrase "is likely to suffer significant harm" in section 31(2)(a) permit a finding based on a "real possibility" of past harm where that past harm has not been proved on the balance of probabilities?
• What is the standard of proof for facts in issue in care proceedings, and does the seriousness of the allegation require a heightened civil or criminal standard?
• How should unproven allegations be treated at the welfare stage under section 1(3)(e)?

Court’s reasoning and conclusions:

• The House of Lords reaffirmed the approach in In re H that facts upon which a prediction of future harm is based must be proved to the ordinary civil standard, on the balance of probabilities; it rejected substituting a "real possibility" test for the threshold.
• The court declared there is a single civil standard of proof — the balance of probabilities — and that the seriousness of allegations does not raise the standard, although inherent probabilities remain relevant when weighing evidence.
• The distinction between investigatory/interim statutory thresholds (which use "reasonable cause to suspect" or "to believe") and the final judicial threshold in section 31 was emphasised: Parliament used different language deliberately.
• At the welfare stage, unproven allegations should not be treated as established facts; their ramifications may remain part of the factual matrix but cannot form the basis for asserting current risk where not proved.
• The court recommended that the same judge should, where practicable, hear the whole case rather than split judging, and approved a concise form of words for experts where allegations were not proved.

Relief sought: The children's guardian sought to overrule In re H and to permit the "real possibility" test to operate at the threshold and welfare stages. The House of Lords refused that relief.

Appeal dismissed. The House of Lords reaffirmed that facts relied on to establish that a child "is likely to suffer significant harm" under section 31(2)(a) must be proved on the balance of probabilities; there is a single civil standard of proof and the seriousness of allegations does not alter that standard. Unproven allegations may remain part of the factual matrix but cannot by themselves establish a current risk at the welfare stage. The case was remitted for completion of the hearing by the same judge, with guidance on expert instructions.

Appeal to the House of Lords from the Court of Appeal ([2008] EWCA Civ 282). The underlying fact-finding hearing was before Charles J in the High Court (judgment handed down 19 October 2007).