Finding that a Child is at Risk from Sexual Abuse:Re H (Minors)(Sexual Abuse: Standard of Proof)

AuthorCaroline Keenan
Published date01 November 1997
Date01 November 1997
Finding that a Child is at Risk from Sexual Abuse: Re H
(Minors) (Sexual Abuse: Standard of Proof)
Caroline Keenan*
In Re H (Minors) (Sexual Abuse: Standard of Proof)
the House of Lords was
faced with a case which raised fundamental questions about the standard of proof
to be applied by the court to allegations of sexual abuse. Such allegations could
form the basis for granting a care or supervision order on the grounds that the child
is, in the words of the Children Act 1989, likely to suffer significant harm if the
order is not made.
In the criminal courts, any alleged abuse would, of course,
require the criminal standard of proof. However, in civil care or supervision
proceedings, should only the ordinary civil standard be required, or should civil
courts adopt a standard which reflects the enormity of the allegation and therefore
requires more convincing evidence? Furthermore, should the same standard of
proof apply to allegations which raise the possibility that abuse would happen in
the future as to allegations that abuse had happened in the past? What if, as
happened in this case, the trial judge, whilst holding that there was a ‘real
possibility’ that the allegations were true, nevertheless decided that the evidence
was not sufficient to satisfy the required standard of proof for past sexual abuse?
Could he nevertheless find, on the basis of his strong suspicions, that there was the
requisite likelihood of future harm? These were not simply nice points of law but
were central to decisions about the lives of children and their families. There is a
great danger in setting standards of proof for evidence of abuse that are either too
high or too low. If the standard of proof is set too high the hurdle of proving a risk
of abuse may be too great and children will not be protected. Conversely, if the
standard is too low a child’s family life will be disrupted unnecessarily. It is
difficult to feel entirely comfortable with the standard of proof adopted by either
the majority or the minority in Re H. This is because neither adopted a standard
which gave equal weight to the risk of future abuse and the risk of unnecessary
The facts
In Re H a local authority applied for a care order in respect of the three youngest
girls of a family of four. It provided no evidence that these children had been
sexually abused in the past. Its concern arose from the fear that they might be
The Modern Law Review Limited 1997 (MLR 60:6, November). Published by Blackwell Publishers,
108 Cowley Road, Oxford OX4 1JF and 350 Main Street, Malden, MA 02148, USA. 857
* Department of Law, University of Bristol. The author would like to acknowledge the help of Mary Hayes
and Catherine Williams, Law Department, University of Sheffield and Peter Keenan, in commenting on
earlier drafts.
2 Section 31(2) provides that:
A court may only make a care or supervision order if it is satisfied:
(a) that the child concerned is suffering, or is likely to suffer, significant harm; and
(b) that the harm or likelihood of harm is attributable to: the care given to the child, or likely to be
given to him if the order were not made, not being what it would be reasonable to expect a parent to
have given to him.

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