In re S-B (Children) (Care Proceedings: Standard of Proof)

This appeal concerned the proper approach to identifying who was responsible for non-accidental injury to a child in care proceedings and the consequences for a sibling who had not been harmed. The Supreme Court reaffirmed that findings about past facts, including the identity of a perpetrator, must be reached on the civil standard of proof, the balance of probabilities (see Re H and Re B), and that the court must distinguish between proof of past facts and predictions of future harm under section 31(2) of the Children Act 1989. The Court held that a judge who misdirects on the standard of proof or uses a "real possibility" test to attribute future risk to a person without first making the necessary past-fact findings must have the case reheard.

This case arose from care proceedings after a baby, Jason, was found with bruising that the clinicians regarded as non-accidental. The proceedings involved both Jason, who had suffered harm, and his later-born brother William, who had not. The local authority sought care and placement orders and approval of plans for adoption. The issues at first instance included whether the injuries to Jason were non-accidental, who had inflicted them, and whether the threshold under section 31(2) of the Children Act 1989 was crossed in respect of both children.

The hearing history was: fact-finding and disposal hearings at first instance (split and then composite hearings), an intermediate Court of Appeal decision dismissing the mother’s appeal ([2009] EWCA Civ 1048), and this appeal to the Supreme Court. The mother challenged (i) the judge's approach to the standard of proof and the expression of comparative likelihoods as between the parents, and (ii) the judge's finding that William met the threshold for intervention because there was a "real possibility" that the mother had injured Jason.

The Supreme Court reviewed the law: the threshold conditions in section 31(2) Children Act 1989; the distinction between proof of past facts and predictions of future harm as explained in Re H; and the reaffirmation in Re B that past facts must be proved on the balance of probabilities. The Court emphasised the different roles of social workers and courts and the need for careful fact-finding. It held that the standard of proof for identifying a perpetrator is the balance of probabilities and that, although judges should make such findings where they properly can (because of the benefits for planning and the child's long-term interests), there is no obligation to identify a perpetrator if the evidence does not justify it. The Court criticised the trial judge for misdirecting herself by saying she required evidence "equivalent to the gravity of the allegations" and for later giving an adjunct indicating a 60/40 likelihood between parents which could not be treated as a finding. It also found error in crossing the threshold in respect of William on the basis that there was a mere "real possibility" that the mother had injured Jason: for the prediction of future harm to be based on that fact, the underlying past fact must first have been found on the balance of probabilities. The Supreme Court allowed the appeal and remitted the case for a complete rehearing before a different judge.

Appeal allowed and case remitted for rehearing. The Court held that identification of a perpetrator is a factual issue to be proved on the balance of probabilities; the trial judge had misdirected herself by importing a heightened evidential requirement and by treating an adjunct indicating comparative percentages as a finding; and it was impermissible to find the threshold crossed for the unharmed sibling on the basis of a "real possibility" of past harm without first finding the past fact on the balance of probabilities.

First instance family proceedings (fact-finding and disposal hearings); appeal to the Court of Appeal dismissed: [2009] EWCA Civ 1048; appeal to the Supreme Court allowed and matter remitted for rehearing: [2009] UKSC 17.