Re H and R (Child Sexual Abuse: Standard of Proof)
| Jurisdiction | UK Non-devolved |
| Judgment Date | 14 December 1995 |
| Date | 14 December 1995 |
| Year | 1996 |
| Court | House of Lords |
Children - Care proceedings - Threshold conditions - Allegations of sexual abuse of elder sibling by mother's partner not proved - Whether condition that younger children likely to suffer significant harm satisfied - Standard of proof -
The mother had four children, all girls, the elder two by her husband, from whom she was separated, and the younger two by R., with whom she was living. In September 1993 the eldest girl, then aged 13, alleged that she had been sexually abused by R. since she was 7 or 8 years old. She was thereupon accommodated with foster parents and R. was charged with having raped her. In February 1994 the local authority was granted interim care orders in respect of the three younger children, followed by interim supervision orders. In October 1994 R. was tried on an indictment containing four counts of rape. The jury acquitted him on all counts after a very short retirement. The local authority proceeded with the applications for care orders in respect of the three younger children based solely on the alleged sexual abuse of the eldest girl by R. The local authority, relying on the different standard of proof in civil and criminal matters, asked the judge to find that R. had sexually abused the girl or that there was a substantial risk that he had done so, thereby satisfying the conditions prescribed by section 31(2) of the Children Act 1989F1 for the making of a care order. The judge rejected the evidence of the mother and R.; nevertheless he held that he was not sure to the requisite high standard of proof that the girl's allegations were true and that the statutory criterion for the making of a care order were not made out, albeit he had his suspicions that there was a real possibility that the girl's statement and evidence was true. On appeal by the local authority the Court of Appeal (by a majority) dismissed the appeal.
On appeal by the local authority:—
Held, dismissing the appeal (Lord Browne-Wilkinson and Lord Lloyd of Berwick dissenting), that the requirement in section 31(2)(a) of the Children Act 1989 that the court had to be satisfied that the child was likely to suffer significant harm if the care order was not made did not require a finding that such harm was more likely than not, but it sufficed if the occurrence of sexual harm was a real possibility; that the burden of proving any relevant fact lay on the applicant and that the standard of proof was that of the balance of probabilities; that the judge had rejected the only evidence alleged which gave rise to the making of the care order applications, and that, therefore, it was not open to him to proceed to the second stage and to consider the likelihood of further harm to the children since the establishment of the threshold conditions prescribed by section 31(2)(a) had to be founded on a factual basis and not on suspicions (post, pp. 10F, 12D–E, 22E–F, 23A, D–G, 24H, 26A–B, 28G–29A, F–H).
The following cases are referred to on their Lordships' opinions:
A. (A Minor) (Care Proceedings), In re [
B. (Minors) (Termination of Contact: Paramount Consideration), In re [
Bater v. Bater [1951] P. 35; [
Blyth v. Blyth [
Davies v. Taylor [
Dellow's Will Trusts, In re [
Dunning v. United Liverpool Hospitals' Board of Governors [
F. (Minors) (Wardship: Jurisdiction), In re [
G. (A Minor) (Child Abuse: Standard of Proof), In re [
H. v. H. (Minors) (Child Abuse: Evidence) [
Hornal v. Neuberger Products Ltd. [
M. (A Minor) (Appeal) (No. 2) [
M. (A Minor) (Care Orders: Threshold Conditions), In re [
Newham London Borough Council v. A.G. [
P. (A Minor) (Care: Evidence), In re [
Preston-Jones v. Preston-Jones [
Serio v. Serio (
W. (Minors) (Sexual Abuse: Standard of Proof), In re [
W. (Minors) (Wardship: Evidence), In re [
The following additional cases were cited in argument:
Birmingham City Council v. D. [
Mallett v. McMonagle [
Appeal from the Court of Appeal.
This was an appeal by leave dated 5 April 1995 of the House of Lords (Lord Keith of Kinkel, Lord Mustill and Lord Lloyd of Berwick) by the appellant, Nottinghamshire County Council, from the judgment dated 14 December 1994 of the Court of Appeal (Sir Stephen Brown P. and Millett L.J., Kennedy L.J. dissenting) dismissing the local authority's appeal from orders dated 23 November 1994 of Judge Davidson Q.C. in the Nottingham County Court. By the orders the judge dismissed (a) the applications dated 7 February 1994 of the local authority made pursuant to section 31 of the Children Act 1989 for care orders in respect of the fourth, fifth and sixth respondents, the children, the subject of the applications represented by their guardian ad litem; and (b) the applications dated 19 April 1994 of the local authority made pursuant to section 34(4) of the Children Act 1989 for authority to refuse contact between the children and the father.
The local authority did not pursue in the Court of Appeal and the House of Lords the applications under section 34(4) of the Act. The third respondent, the husband of the first respondent, the mother, took no part in the proceedings and took no part in the appeal to the House of Lords.
The facts are stated in their Lordships' opinions.
James Munby Q.C. for the local authority.
Allan Levy Q.C. and Judith Claxton for the first and second respondents, the mother and father.
Lindsey Kushner Q.C. for the guardian ad litem.
Their Lordships took time for consideration.
14 December. Lord Goff of Chieveley. My Lords, I have had the advantage of reading in draft the speech prepared by my noble and learned friend, Lord Nicholls of Birkenhead. For the reasons which he gives, I, too, would dismiss this appeal.
Lord Browne-Wilkinson. My Lords, I have the misfortune to disagree with the view reached by the majority of your Lordships. Although the area of disagreement is small, it is crucial both to the outcome of this appeal and to the extent to which children at risk can be protected by the courts.
I agree with my noble and learned friend, Lord Nicholls of Birkenhead, that the requirement in section 31(2) of the Children Act 1989, that the court must be satisfied that the child “is likely to suffer significant harm” does not require the court to find that such harm is more likely than not: it is enough if the occurrence of such harm is a real possibility. I further agree with him that the burden of proving any relevant fact is on the applicant and that the standard of proof is the ordinary civil standard, i.e. balance of probabilities. The point on which I differ is how those principles fall to be applied by a judge faced with the decision whether he is “satisfied” that the child is likely to suffer significant harm. Even on this point, I agree that the judge can only act on evidence and on facts which, so far as relevant, have been proved. He has to be satisfied by the evidence before him that there is a real possibility of serious harm to the child.
Where I part company is in thinking that the facts relevant to an assessment of risk (“is likely to suffer … harm”) are not the same as the facts relevant to a decision that harm is in fact being suffered. In order to be satisfied that an event has occurred or is occurring the evidence has to show on balance of probabilities that such event did occur or is occurring. But in order to be satisfied that there is a risk of such an occurrence, the ambit of the relevant facts is in my view wider. The combined effect of a number of factors which suggest that a state of affairs, though not proved to exist, may well exist is the normal basis for the assessment of future risk. To be satisfied of the existence of a risk does not require proof of the occurrence of past historical events but proof of facts which are relevant to the making of a prognosis.
Let me give an example, albeit a dated one. Say that in 1940 those responsible for giving air-raid warnings had received five unconfirmed sightings of approaching aircraft which might be enemy bombers. They could not, on balance of probabilities, have reached a conclusion that any one of those sightings was of an enemy aircraft: nor could they logically have put together five non-proven sightings so as to be satisfied that enemy aircraft were in fact approaching. But their task was not simply to decide whether enemy aircraft were approaching but whether there was a risk of an air-raid. The facts relevant to the assessment of such risk were the reports that unconfirmed sightings had been made, not the truth of such reports. They could well, on the basis of those unconfirmed...
To continue reading
Request your trial
-
Shobna Gulati and Others v MGN Ltd
...He points to the well-known principle that the more serious the allegation, the stronger evidence required to prove it ( Re H (Minors) [1996] AC 563) and goes on to say that those principles should apply where the case relied on involves criminality (which in this case it does, or may). He ......
-
[1] The Hon. Gaston Browne, Leader of the Opposition [2] The Hon. Lester B. Bird [3] The Hon. Asot A. Michael [4] Mr. Eisen Baptiste [5] Ms. Paulet Hinkson Appellants/Applicants v [1] The Constituencies Boundaries Commission [2] Attorney General of Antigua and Barbuda [3] The Speaker of the House of Representatives [4] The Prime Minister of Antigua and Barbuda Attorney General (for and on Behalf of her Excellency the Governor General) Respondents [ECSC]
...chances and positively impact the UPP's chances or vice versa. Consequently, this ground of appeal also fails. In re H. and Others (Minors) (Sexual Abuse: Standard of Proof) [1996] AC 563 applied; and In re Dellow's Will Trusts [1964] 1 WLR 451 applied. 4. The test for establishing appare......
-
Abby Elizabeth Swain and Others v Swains Plc and Others
...an allegation being true the more cogent must be the evidence if the civil standard of proof is to be discharged – see Re H (Minors) (Sexual Abuse: Standard of Proof) [1996] AC 563 per Lord Nicholls at 586, where he said: "The balance of probabilities standard means that a court is satisfie......
-
IG Index Plc v 1. James Colley and Others
...standard of proof and the correct approach to the quality and nature of evidence required to satisfy it. In re H. & Others (Minors) (Sexual Abuse: Standard of Proof) [1996] AC 563 at 586D-H Lord Nicholls held: "The balance of probability standard means that the court is satisfied an event o......
-
Global Arbitration Review - The Guide to M&A Arbitration: United Kingdom
...rules of law to which they relate. He said:37 ibid.38 As to rescission, see below.39 Re H & R (Minors) (Sexual Abuse: Standard of Proof ) [1996] AC 563, 586, per Lord Nicholls.40 N Blackaby and C Partasides (eds), Redfern and Hunter on International Arbitration (6th edn, 2015) at para. 6.84......
-
National Bank Trust v Ilya Yurov: "a Ponzi scheme with a fancy name" – Proving Fraud in the English Courts
...be specifically set out in the particulars of claim. 5 Three Rivers, 185. 6 Ibid., 186; National Bank v Yurov, 251. 7 In Re H (Minors) [1996] AC 563. Kekhman, 41-45. 8 Kekhman, 51-66. 9 Ibid., 67-77. 10 JSC BTA Bank v Ablyazov [2013] EWHC 510 (Comm) at 197-198; Kekhman, 78-81. 11 Kekhman, 8......
-
Professional Discipline & Regulatory E-bulletin April 2010
...was to be applied, particularly in cases where the charges were very serious. One interpretation which had grown up from Re H [1996] AC 563 was that there was a 'heightened' standard of proof in such situations. Another view was that where an event was improbable, then the more cogent was t......
-
An End To The Criminal Standard Of Proof In Professional Oversight? It's Beyond Reasonable Doubt
...that it did occur before, on the balance of probability, its occurrence will be established." (per Lord Nicholls in In Re H (Minors) [1996] AC 563) This is not the same as requiring a higher level of proof, as it has often been misinterpreted (see the Supreme Court's decision in In Re SB (C......
-
Keeping control of terrorists without losing control of constitutionalism.
...(212.) Id. [section] 4(13). (213.) Id [section] 4(7). (214.) [2004] UKHL 56, [164], [2005] 2 A.C. 68, 151 (Lord Rodger). (215.) Re H, [1996] A.C. 563, 586-87 (Lord (216.) B v. Chief Constable of Avon & Somerset Constabulary, [2001] 1 W.L.R. 340, 354, [31] (Lord Bingham); Gough v. Chief ......
-
Subject Index
...359, CA. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 237–238Griffiths vDPP [2007] EWHC619 (Admin) . . . 276H (Minors),Re [1996] AC563 . . . . . . . . . . . . . . . 344Hadžihasanović(Case No. IT-01-47) Decision onAdmissibility of Documents of the Defenceof Enver Hadžihasano......
-
Subject Index
...v Brickell [1987] Ch 378 ......................................................... 225H (Minors) (Sexual Abuse: Standard ofProof), Re [1996] AC 563............... 147Hamer v United Kingdom (1979) 24 DR5 .......................................................195Hardiman v United Kingdom [199......
-
The burden of proof in market abuse cases
...[1981] 1 WLR 505 at 514.10. [1957] EWCA Civ 1605, [2006] QB 468 at 498 para 64.11. In Re H (Minors) (Sexual Abuse: Standard of Proof) [1996] AC 563 HK at 586.12. UKHL 33 (11 June 2008).13. Re CD [2008] UKHL 33 at 48.14. Bv. Chief Constable of the Avon and Somerset Constabulary [2001] 1 WLR ......