In re B (Children) (FC)

In care proceedings, a prediction that a child is likely to suffer significant harm must be founded on facts proved on the balance of probabilities. The statutory likelihood is a real possibility that cannot sensibly be ignored, but an unproven possibility that past abuse occurred cannot supply its factual foundation.

There is one civil standard of proof: whether the fact more probably occurred than not. Neither the seriousness of the allegation nor the consequences changes that standard. Inherent probabilities remain relevant only as part of the evidence. Where harm is proved but its perpetrator cannot be identified, each possible perpetrator may nevertheless be considered at the welfare stage.

The proceedings concerned two children whose family life was marked by physical and emotional abuse and a culture of false or exaggerated allegations. In care proceedings, Charles J made extensive findings but could not decide on the balance of probabilities whether the father had sexually abused an older child. He nevertheless found a real possibility that the abuse had occurred.

The children's guardian argued that this possibility could support a prediction of future harm under section 31(2) of the Children Act 1989 and could be considered at the welfare stage. The Court of Appeal, bound by authority, dismissed the guardian's appeal in [2008] EWCA Civ 282 but permitted a further appeal.

The central issue before the House was whether a real possibility of past harm, which had not been proved on the balance of probabilities, could found a conclusion that a child was likely to suffer that harm in the future.

1. Appeal dismissed unanimously. Baroness Hale delivered the leading speech. Lord Hoffmann agreed with her reasoning, analysis of the authorities and conclusions. Lords Scott, Rodger and Walker also agreed with the result and the material reasoning.
2. Per Baroness Hale, section 31(2) of the Children Act 1989 requires the factual foundation for a prediction of future harm to be proved on the balance of probabilities. The word “likely” denotes a real possibility that cannot sensibly be ignored, but that predictive assessment must begin with proved facts. Unresolved doubts, suspicions and a real possibility that past abuse occurred cannot establish either the final statutory threshold or the same alleged risk at the welfare stage. The House reaffirmed In re H (Minors) (Sexual Abuse: Standard of Proof) [1996] AC 563 and approved In re M and R (Minors) (Abuse: Expert Evidence) [1996] 4 All ER 239.
3. Per Baroness Hale, that rule is consistent with cases in which harm was proved but the court could not identify its perpetrator. In that situation the threshold may be crossed, and each person within the pool may be treated as a possible perpetrator at the welfare stage. The court cannot disregard proved harm merely because responsibility remains uncertain. Uncertainty whether harm occurred is materially different from uncertainty about who caused proved harm.
4. Per Lord Hoffmann, in supplementary reasons agreed with by Lords Rodger and Walker, and per Baroness Hale, there is only one civil standard of proof. A fact is established when it more probably occurred than not. There is no heightened civil standard for serious allegations in care proceedings. Seriousness does not itself establish improbability, although the inherent probability of an event may be considered, where relevant, as part of evaluating the evidence. The approach of the Court of Appeal in In re U (A Child) [2004] EWCA Civ 567 was approved.
5. Per Baroness Hale, unproven allegations may remain part of the family's factual history, and the ramifications of making them may be relevant to professional assessment. Because the allegations themselves were not proved, they cannot support an assertion that there is a current risk of the same kind of harm.
6. Per Baroness Hale, a fact-finding hearing is part of the single trial of care proceedings. If a hearing is split, the same judge should ordinarily determine the remaining welfare issues. Continuity avoids duplicated evidence and ensures that the judge deciding welfare has heard the evidence bearing on family relationships, credibility and risk.
7. Per Baroness Hale, articles 2, 3 and 8 of the European Convention on Human Rights did not require revision of the existing law. A real protective risk must be founded on real facts. Indefinite removal based only on unproven allegations would not be supported by relevant and sufficient reasons. The case was returned to Charles J so that experts could be instructed and he could complete the hearing in accordance with the House's judgments.

1. House of Lords: In In re B (Children) (FC) [2008] UKHL 35, the House unanimously dismissed the appeal, varied the proposed expert instructions and returned the proceedings to Charles J for completion.
2. Court of Appeal: In [2008] EWCA Civ 282, the court dismissed the children's guardian's appeal because it was bound by existing authority, but granted permission to appeal to the House of Lords.
3. High Court: Charles J found extensive physical and emotional abuse but could not determine on the balance of probabilities whether the alleged sexual abuse had occurred. He framed the point of principle for appeal and later recused himself. The House held that he should resume and complete the hearing.