Re S-B (Children) (Care Proceedings: Standard of Proof)
| Jurisdiction | England & Wales |
| Judge | LADY HALE |
| Judgment Date | 14 December 2009 |
| Neutral Citation | [2009] UKSC 17 |
| Date | 14 December 2009 |
| Court | Supreme Court |
[2009] UKSC 17
Lord Hope, Deputy President
Lord Rodger
Lady Hale
Lord Brown
Lord Collins
Lord Kerr
Lord Clarke
Appellant
Anthony Hayden QC
Magdalen Case
(Instructed by Dawson Cornwell)
Respondent
Susan Grocott QC
Sasha Watkinson
(Instructed by Trafford Borough Council Legal and Democratic Services)
2nd Respondent
Frances Judd QC
Alexander Kloss
(Instructed by Rowlands Solicitors)
This is the judgment of the court.
This case is about the proper approach to deciding who has been responsible for harming a child in proceedings taken to protect that child, and others in the family, from harm. It raises profound issues: on the one hand, children need to be protected from harm; but on the other hand, both they and their families need to be protected from the injustice and potential damage to their whole futures done by removing children from a parent who is not, in fact, responsible for causing them any harm at all. The facts of this case present us with that dilemma in an unusually stark form.
The facts
Because we have decided to allow this appeal and send the case back to be decided afresh, we should say only enough about the facts to explain how the dilemma arises. We shall use pseudonyms for the two children concerned, one who has been harmed and one who has not. Jason was born on 19 May 2007. On 15 June 2007, when he was just four weeks old, he was found to have bruising on his arms and face, which the doctors immediately thought was caused non-accidentally and not, as the mother suggested, by the baby pinching himself or sleeping on his dummy. Jason has not lived with his family since then, although he has had frequent and good quality contact with his mother.
Jason was living with his mother and father at the time and described by the doctors as "thriving". Both parents said that it was the father who had got up to attend to the baby when he woke up on the morning when the bruises were noticed. The mother took the baby to the clinic that morning and pointed them out to the health visitor. It was not possible to give precise timing for the bruises but it was not suggested that they were old or of different ages. They could have been inflicted by both parents, but the judge found it more likely that only one of them had inflicted them. The bruises had not been there for so long, nor would they have caused the baby such pain and distress, that the other parent must have known that he was being harmed. This was not, therefore, a case where one parent had failed to protect the child from harm caused by the other. It was, colloquially, a pure "whodunit".
The other child is William, born on 12 July 2008, while the proceedings to protect Jason were in train. By then the parents had separated, although they were still in touch with one another. The father had stopped visiting Jason, had withdrawn from co-operation with the social workers and with his solicitors, and played no further part in the proceedings. He has parental responsibility for Jason but not for William. William was removed from his mother shortly after birth and placed with the same foster carer as his brother. He has never been harmed. The case for removing him from his mother rests on the likelihood of his being harmed in the future if he is returned to her.
The law
In this country we take the removal of children from their families extremely seriously. The Children Act 1989 was passed almost a decade before the Human Rights Act 1998, but its provisions were informed by the United Kingdom's obligations under article 8 and article 6 of the European Convention on Human Rights. These affect both the test and the process for intervening in the family lives of children and their parents.
As to the test, it is not enough that the social workers, the experts or the court think that a child would be better off living with another family. That would be social engineering of a kind which is not permitted in a democratic society. The jurisprudence of the European Court of Human Rights requires that there be a "pressing social need" for intervention and that the intervention be proportionate to that need. Before the court can consider what would be best for the child, therefore, section 31(2) of the 1989 Act requires that it be satisfied of the so-called "threshold conditions":
"(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 –
(i) 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 give to him; or
(ii) the child's being beyond parental control."
The leading case on the interpretation of these conditions is the decision of the House of Lords in Re H (Minors) (Sexual Abuse: Standard of Proof) [1996] AC 563. Three propositions were established which have not been questioned since. First, it is not enough that the court suspects that a child may have suffered significant harm or that there was a real possibility that he did. If the case is based on actual harm, the court must be satisfied on the balance of probabilities that the child was actually harmed. Second, if the case is based on the likelihood of future harm, the court must be satisfied on the balance of probabilities that the facts upon which that prediction was based did actually happen. It is not enough that they may have done so or that there was a real possibility that they did. Third, however, if the case is based on the likelihood of future harm, the court does not have to be satisfied that such harm is more likely than not to happen. It is enough that there is "a real possibility, a possibility that cannot sensibly be ignored having regard to the nature and gravity of the feared harm in the particular case" (per Lord Nicholls of Birkenhead, at p 585F).
Thus the law has drawn a clear distinction between probability as it applies to past facts and probability as it applies to future predictions. Past facts must be proved to have happened on the balance of probabilities, that is, that it is more likely than not that they did happen. Predictions about future facts need only be based upon a degree of likelihood that they will happen which is sufficient to justify preventive action. This will depend upon the nature and gravity of the harm: a lesser degree of likelihood that the child will be killed will justify immediate preventive action than the degree of likelihood that the child will not be sent to school.
The House of Lords was invited to revisit the standard of proof of past facts in Re B (Children) (Care Proceedings: Standard of Proof) [2008] UKHL 35, [2009] AC 11, where the judge had been unable to decide whether the alleged abuse had taken place. The suggestion that it would be sufficient if there were a "real possibility" that the child had been abused was unanimously rejected. The House also reaffirmed that the standard of proof of past facts was the simple balance of probabilities, no more and no less.
The problem had arisen, as Lord Hoffmann explained, because of dicta which suggested that the standard of proof might vary with the gravity of the misconduct alleged or even the seriousness of the consequences for the person concerned (para 5). He pointed out that the cases in which such statements were made fell into three categories. In the first were cases which the law classed as civil but in which the criminal standard was appropriate. Into this category came sex offender orders and anti-social behaviour orders: see B v Chief Constable of Avon and Somerset Constabulary [2001] 1 WLR 340 and R (McCann) v Crown Court at Manchester [2002] UKHL 39, [2003] 1 AC 787. In the second were cases which were not about the standard of proof at all, but about the quality of evidence. If an event is inherently improbable, it may take better evidence to persuade the judge that it has happened than would be required if the event were a commonplace. This was what Lord Nicholls was discussing in Re H (Minors), above, at p 586. Yet, despite the care that Lord Nicholls had taken to explain that having regard to the inherent probabilities did not mean that the standard of proof was higher, others had referred to a "heightened standard of proof" where the allegations were serious. In the third category, therefore, were cases in which the judges were simply confused about whether they were talking about the standard of proof or the role of inherent probabilities in deciding whether it had been discharged. Apart from cases in the first category, therefore, "the time has come to say, once and for all, that there is only one civil standard of proof and that is proof that that the fact in issue more probably occurred than not" (para 13).
This did, of course, leave a role for inherent probabilities in considering whether it was more likely than not that an event had taken place. But, as Lord Hoffmann went on to point out at para 15, there was no necessary connection between seriousness and inherent probability:
"It would be absurd to suggest that the tribunal must in all cases assume that serious conduct is unlikely to have occurred. In many cases, the other evidence will show that it was all too likely. If, for example, it is clear that a child was assaulted by one or other of two people, it would make no sense to start one's reasoning by saying that assaulting children is a serious matter and therefore neither of them is likely to have done so. The fact is that one of them did and the question for the tribunal is simply whether it is more probable that one rather than the other was the perpetrator."
Lady Hale made the same point, at para 73:
"It may be unlikely that any person looking after a baby would take him by...
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