W (A Child), Re

In care proceedings, factual issues are determined on the balance of probabilities. The seriousness of the consequences does not create a sliding scale towards the criminal standard. A party who seeks in later proceedings to overturn findings previously made after the legal burden was discharged must bear the burden of showing that those findings were wrong. That burden does not necessarily decide the case where the judge positively resolves conflicting expert evidence. A finding made on the balance of probabilities remains subject to residual doubt and should not be treated as immutable. A US-style Daubert hearing has no relevance to an appeal in civil proceedings without the jury procedure for which it was designed.

Parents of a four-year-old child sought permission to appeal from Hedley J’s dismissal of applications made after their child had been placed in foster care, made subject to care and placement orders, and placed for adoption. The applications sought a residence order, a stay of the adoption proceedings, leave to oppose the adoption application and variation of a reporting injunction.

The parents relied on new medical evidence questioning an earlier finding that serious injury to another child had been non-accidental. They challenged the burden and standard of proof applied by Hedley J and alleged a breach of Article 6 because there had been no Daubert hearing. The central issues were whether the earlier findings could be reopened on the burden resting on the parents, whether the balance of probabilities was the correct standard, and whether the proposed expert-evidence procedure was relevant.

Lord Justice Wilson refused permission to appeal because the proposed appeal had no real prospect of success.

1. Burden when challenging earlier findings. Hedley J was entitled to allow the parents to attempt to challenge findings made in earlier care proceedings, although he was not exercising appellate jurisdiction. The earlier findings concerning Y had originally been established by the local authority, which had borne the legal burden of proof. They formed a major part of the foundation for the conclusion that the evidence crossed the statutory threshold under the Children Act 1989 in relation to A. In the later proceedings, the burden therefore rested on A’s parents to establish that the earlier findings were wrong.
2. Standard and effect of proof. The judge correctly determined the factual issues on the balance of probabilities. The House of Lords decision in In Re B (Children) (Care Proceedings: Standard of Proof) (CAFCASS Intervening) [2008] UKHL 35; [2009] 1 AC 11 established that there was no sliding scale calibrated by the seriousness of the enquiry. The burden issue was academic because Hedley J positively found Dr Squier to be wrong and Dr Stoodley to be right, rather than merely relying on the parents’ failure to discharge the burden. A probability finding may be made despite residual doubt and should not subsequently be treated as immutable.
3. Daubert hearing. On the judge’s understanding, Daubert v Merrill-Dow Pharmaceuticals Inc [1993] 509 US 579 concerned a separate inquiry by a judge, sitting with a jury, into the strength and relevance of expert evidence. That procedure had no relevance to the proposed appeal in the present civil proceedings. Arguments concerning the possibility of failed adoptions or later resentment by adopted children did not bear on the issues decided by Hedley J.

The operative order was that the application was refused.

1. Court of Appeal (Civil Division): On 20 March 2009, Lord Justice Wilson refused permission to appeal from Hedley J’s dismissal of the parents’ applications: [2009] EWCA Civ 538.
2. High Court, Family Division, Principal Registry: On 30 January 2009, Hedley J dismissed the parents’ applications for a residence order, a stay and leave to oppose the adoption application, and variation of the reporting injunction.