B (Children) (Care Proceedings: Standard of Proof) (CAFCASS intervening)

JurisdictionUK Non-devolved
CourtHouse of Lords
JudgeLORD SCOTT OF FOSCOTE,LORD RODGER OF EARLSFERRY,BARONESS HALE OF RICHMOND
Judgment Date11 June 2008
Neutral Citation[2008] UKHL 35
Date11 June 2008

[2008] UKHL 35

HOUSE OF LORDS

Appellate Committee

Lord Hoffmann

Lord Scott of Foscote

Lord Rodger of Earlsferry

Lord Walker of Gestingthorpe

Baroness Hale of Richmond

In re B (Children) (FC)

Appellants:

Stephen Cobb QC

Stuart Fuller

(Instructed by Stantons)

Respondents:

Marianna Hildyard QC

Helen Mountfield

Isabelle Watson

(Instructed by Church Bruce)

Interveners

Jo Delahunty QC

Alison Grief

(Instructed by CAFCASS)

LORD HOFFMANN

My Lords,

1

I have had the advantage of reading in draft the speech to be delivered by my noble and learned friend Baroness Hale of Richmond and I am in complete agreement with her reasoning, analysis of the authorities and conclusions. I add some observations on the standard of proof only to underline, without in any way qualifying, what she has said.

2

If a legal rule requires a fact to be proved (a "fact in issue"), a judge or jury must decide whether or not it happened. 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.

3

The effect of the decision of the House in Re H (Minors)(Sexual Abuse: Standard of Proof) [1996] AC 563 is that section 31(2)(a) of the Children Act 1989 requires any facts used as the basis of a prediction that a child is "likely to suffer significant harm" to be proved to have happened. Every such fact is to be treated as a fact in issue. The majority of the House rejected the analogy with facts which merely form part of the material from which a fact in issue may be inferred, which need not each be proved to have happened. There is of course no conceptual reason for rejecting this analogy, which in the context of some predictions (such as Lord Browne-Wilkinson's example of air raid warnings) might be prudent and appropriate. But the House decided that it was inappropriate for the purposes of section 31(2)(a). It is this rule which the House reaffirms today.

4

The question which appears to have given rise to some practical difficulty is the standard of proof in such cases, that is to say, the degree of persuasion which the tribunal must feel before it decides that the fact in issue did happen. Re H (minors) makes it clear that it must apply the ordinary civil standard of proof. It must be satisfied that the occurrence of the fact in question was more likely than not.

5

Some confusion has however been caused by dicta which suggest that the standard of proof may vary with the gravity of the misconduct alleged or even the seriousness of the consequences for the person concerned. The cases in which such statements have been made fall into three categories. First, there are cases in which the court has for one purpose classified the proceedings as civil (for example, for the purposes of article 6 of the European Convention) but nevertheless thought that, because of the serious consequences of the proceedings, the criminal standard of proof or something like it should be applied. Secondly, there are cases in which it has been observed that when some event is inherently improbable, strong evidence may be needed to persuade a tribunal that it more probably happened than not. Thirdly, there are cases in which judges are simply confused about whether they are talking about the standard of proof or about the role of inherent probabilities in deciding whether the burden of proving a fact to a given standard has been discharged.

6

A case in the first category was R v Secretary of State for the Home Department, Ex p Khawaja [1984] AC 74 which concerned the summary removal of an immigrant on the ground that he had obtained leave to enter by fraud or deception. These were civil proceedings and Lord Scarman, who dealt with this point most fully, was reluctant to say that the criminal standard of proof should apply: see p. 112. Instead, he said:

"I have come to the conclusion that the choice between the two standards is not one of any great moment. It is largely a matter of words. There is no need to import into this branch of the civil law the formula used for the guidance of juries in criminal cases. The civil standard as interpreted and applied by the civil courts will meet the ends of justice."

7

He then cited Bater v Bater [1951] P 35, in which the Court of Appeal managed to rule that although it was a misdirection for a judge in matrimonial proceedings to say that the criminal standard of proof applied to allegations of cruelty ( Davis v Davis [1950] P 125) it was correct to say that they had to be proved beyond reasonable doubt. Lord Scarman then referred to Hornal v Neuberger Products Ltd [1957] 1 QB 247, which was a case in the second category, and went on at p113:

"My Lords, I would adopt as appropriate to cases of restraint put by the executive upon the liberty of the individual the civil standard flexibly applied in the way set forth in the cases cited… It is not necessary to import into the civil proceedings of judicial review the formula devised by judges for the guidance of juries in criminal cases. Liberty is at stake: that is, as the court recognised in Bater v. Bater [1951] P. 35 and in Hornal v. Neuberger Products Ltd. [1957] 1 Q.B. 247, a grave matter. The reviewing court will therefore require to be satisfied that the facts which are required for the justification of the restraint put upon liberty do exist. The flexibility of the civil standard of proof suffices to ensure that the court will require the high degree of probability which is appropriate to what is at stake."

8

Another case in the first category is B v Chief Constable of Avon and Somerset Constabulary [2001] 1 WLR 340, which concerned a "sex offender order" under section 2 of the Crime and Disorder Act 1998. Magistrates may make such an order if it is proved that a person is a sex offender and has acted in such a way as to give reasonable cause to believe that an order is necessary to protect the public from serious harm. The order may impose restrictions upon the person's freedom of movement and activity. Lord Bingham CJ said (at pp. 353-354) that the proceedings were civil in domestic law and for the purposes of the Convention but —

"…the civil standard of proof does not invariably mean a bare balance of probability, and does not mean so in the present case. The civil standard is a flexible standard to be applied with greater or lesser strictness according to the seriousness of what has to be proved and the implications of proving those matters: Bater v Bater [1951] P 35, Hornal v Neuberger Products Ltd [1957] 1 QB 247 and R v Secretary of State for the Home Department, ex parte Khawaja [1984] AC 74…. In a serious case such as the present, the difference between the two standards is, in truth, largely illusory. I have no doubt that, in deciding whether the condition in section 2(1)(a) is fulfilled, a magistrates' court should apply a civil standard of proof which will for all practical purposes be indistinguishable from the criminal standard."

9

A similar point arose in R (McCann) v Crown Court at Manchester [2003] 1 AC 787, which concerned an anti-social behaviour order under section 1 of the 1998 Act. The House held that the proceedings were civil for the purposes of article 6 of the Convention. On the standard of proof, however, Lord Steyn said at para 37:

"I agree that, given the seriousness of matters involved, at least some reference to the heightened civil standard would usually be necessary: In re H (Minors)(Sexual Abuse: Standard of Proof) [1996] AC 563, 586D-H, per Lord Nicholls of Birkenhead. For essentially practical reasons, the Recorder of Manchester decided to apply the criminal standard. The Court of Appeal said that would usually be the right course to adopt. Lord Bingham of Cornhill has observed that the heightened civil standard and the criminal standard are virtually indistinguishable. I do not disagree with any of these views. But in my view pragmatism dictates that the task of magistrates should be made more straightforward by ruling that they must in all cases under section 1 apply the criminal standard."

10

The leading case in the second category was, until Re H (Minors) [1996] AC 563, the decision of the Court of Appeal in Hornal v Neuberger Products Ltd [1957] 1 QB 247. The question there was the appropriate standard of proof of an allegation of fraud in civil proceedings. In a frequently cited passage, Morris LJ said (at p. 266) that it was the normal standard for civil proceedings; proof on a balance of probability. But the gravity of an allegation of fraud was something which should be taken into account in deciding whether the burden had been discharged:

"Though no court and no jury would give less careful attention to issues lacking gravity than to those marked by it, the very elements of gravity become a part of the whole range of circumstances which have to be weighed in the scale when deciding as to the balance of probabilities."

11

It was this notion of having regard to inherent probabilities which Lord Nicholls of Birkenhead attempted to capture in In re H (Minors)(Sexual Abuse: Standard of Proof) [1996] AC 563, 586D-H:

"The balance of probability standard means that a court is satisfied an event occurred if the court considers that, on the evidence, the occurrence of the event was more likely than not. When assessing the probabilities the court will have in mind as a factor, to...

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