Michael Segal summarises a case of alleged sexual abuse within a family, and the difficulty involved in a related welfare hearing

Legal case notes: Re B (children)(sexual abuse: standard of proof) [2008] 2 FCR 339, House of Lords

The facts
A married couple, Mr and Mrs B, had two children, a nine-year-old girl N and a six-year-old boy. Mrs B had two children by a previous marriage, a 16-year-old girl R and a 17-year-old boy. N’s school became concerned about her possible sexualised behaviour. R alleged that Mr B had sexually abused her. The local authority began care proceedings, in which the burden of proving that the children had suffered or were likely to suffer significant harm rested on the local authority. Although there were allegations of emotional abuse, it was an important part of the local authority’s case that if it were proved that Mr B had sexually abused R in the past, he was likely to sexually abuse N in the future.

A district judge made interim care orders in respect of N and R. The children were placed with foster carers, and the care proceedings were transferred to the High Court.

The High Court judge found that the children had suffered significant harm, in the form of emotional abuse, and were likely to suffer further such harm, so that he had power to make full care orders. But he was unable to make a finding of fact about the alleged sexual abuse.

He said that he could not make a properly founded and reasoned conclusion that it was more likely than not that Mr B had sexually abused R, nor could he make a properly founded and reasoned conclusion that it was more likely than not that Mr B had not sexually abused her.

He concluded that to do either would be a guess, and that all he could do was to find that there was a ‘real possibility’ that Mr B had sexually abused R, but that the welfare hearing, ie the hearing to decide the children’s future in the light of the harm that they had suffered and were likely to suffer, would have to take place on the basis that Mr B had not in fact sexually abused R.

However, the guardian considered that the welfare hearing could and should take place on the basis of the ‘’real possibility’, ie that N’s future should be decided on the basis that Mr B was likely to sexually abuse her in the future, if steps were not taken to prevent this, and appealed. The Court of Appeal dismissed the appeal, and the guardian appealed to the House of Lords.

The judge should have made up his mind and found either that the allegation had been proved or not proved. In the English legal system, the judge is not allowed to sit on the fence. He has to find for one side or the other.

Lord Hoffman said: ‘There is no room for a finding that it might have happened. The law operates a binary system in which the only values are 0 and 1. The fact either happened or it did not. If the tribunal is left in doubt, the doubt is resolved by a rule that one party or the other carries the burden of proof. If the party who bears the burden of proof fails to discharge it, a value of 0 is returned and the fact is treated as not having happened. If he does discharge it, a value of 1 is returned and the fact is treated as having happened.’ 

Baroness Hale said: ‘The task is a difficult one. It must be performed without prejudice and preconceived ideas, but it is the task which we are paid to perform to the best of our ability.’ It is not possible to be satisfied that a child is likely to suffer a particular kind of harm in the future when the basis for suggesting this is no more than a ‘real possibility’ that another child has suffered the same kind of harm. There had been some discussion in argument about the standard of proof.

The House of Lords held that the standard of proof is the civil standard, the simple balance of probabilities, ie was it more likely than not that Mr B had sexually abused R? Neither the seriousness of the allegation nor the seriousness of its consequences should make any difference to the standard of proof. There is no room in a care case for the application of the criminal standard of proof, ie proof beyond reasonable doubt.

The House of Lords took the opportunity to clear up recently expressed doubts about the standard of proof, ie the strictness with which allegations must be proved.

There has recently been an attempt in care cases to blur the distinction between the civil standard of proof (on the balance of probabilities) and the criminal standard of proof (beyond reasonable doubt). It has been suggested that there is a variable standard of proof, ie the more serious the allegation, the more ‘cogent’ must be the evidence required to prove it.

This has led to confusion and misunderstanding, and Baroness Hale said that it was time for the court to ‘loosen its grip on the variability or “cogency” approach, and give it its quietus.’

The House of Lords makes it clear in this case that there are no intermediate standards of proof, and that the proper approach in a care case is the ‘simple balance of probabilities’. On the one hand, as Baroness Hale emphasised, it is a momentous step to take a child away from its family but, on the other hand, care proceedings are civil proceedings not criminal proceedings, and the objective is the protection of the child, not the punishment of the perpetrator.

Michael Segal has been a district judge of the Principal Registry of the Family Division since 1985. This is a specialist family court and about two-thirds of its work concerns disputes about children.

The cases presented here aim to help the reader understand better the nature of and the types of decision making within the court system.

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