Re U (A Child) (Serious Injury: Standard of Proof): Re B (A Child)
| Jurisdiction | England & Wales |
| Judgment Date | 14 May 2004 |
| Neutral Citation | [2004] EWCA Civ 567 |
| Docket Number | Case No: B1/2004/0182 PTA |
| Court | Court of Appeal (Civil Division) |
| Date | 14 May 2004 |
[2004] EWCA Civ 567
The President
Lord Justice Thorpe and
Lord Justice Mantell
Case No: B1/2004/0182 PTA
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT (FAMILY DIVISION)
The Hon Mrs Justice Bracewell
Royal Courts of Justice
Strand,
London, WC2A 2LL
(1)
Mr Andrew McFarlane QC and Mr Christopher Gibbons (instructed by Mushtaq and Co.) for the Appellant
Miss Glenda Vencatachellum (instructed by Pye-Smiths) for the father.
Miss Judith Rowe QC and Miss Sally Stone (instructed by the Respondent Local Authority)
Miss Margaret Hodgson for the Child by her Guardian ad Litem
(2)
Mr Stephen Cobb QC (instructed by Harman and Harman) for the Appellant
Mr Charles Howard QC and Ms Sarah O'Connor (instructed by the Respondent Local Authority)
Miss Eleanor Grey and Miss Janet Waddicor (instructed by the Department for Education and Skills) as Intervenor in both cases.
IN THE MATTER OF LU (A CHILD)
IT IS ORDERED THAT, until further order, no one shall publish or reveal
(a) the name or address of the child or children
(b) the name or address of the mother or father
(c) the name or hospital of any doctor or medical expert
who is or are involved in these proceedings or publish or reveal any particular or particulars or other information which would be likely to lead to the identification of the said child or person.
AND that there be liberty to apply for variation or discharge of this Order to the High Court.
IN THE MATTER OF LB (A CHILD)
IT IS ORDERED THAT, until further order, no one shall publish or reveal
(a) the name or address of the child,
(b) the name or address of the mother or father, or any carer of the child,
(c) the name or hospital of any doctor or medical expert,
who is or are involved in these proceedings or publish reveal any particular or particulars or other information which would be likely to lead to the identification of the said child or person.
AND that there be liberty to apply for variation or discharge of this Order to the High Court.
Dame Elizabeth Butler-Sloss, P:
This is the judgment of the Court to which each member of the Court has contributed.
These two cases were listed sequentially since in each application for permission to appeal two general issues were raised as to the standard of proof to be applied to applications in care proceedings based upon the allegation that the parent had caused serious harm to the child and to the impact of the decision of the Court of Appeal (Criminal Division) in R v. Cannings [2004] EWCA Crim.1 upon such cases.
In the case of LU which we heard first in time, the child, LU, the subject of the proceedings was born on the 11 th July 2001 and is now two and a half. The mother sought to appeal the findings by Bracewell J, in a judgment handed down on the 7th November 2002 at the first (section 31 threshold) hearing, that the mother had been responsible for three incidents of deliberately imposed airway obstruction suffered by the baby in August 2001 and a further incident in October 2001. The second (disposal) hearing was fixed before Kirkwood J for the 17 th March 2004. The applications for permission to appeal, for extension of time of some 14 months and to adduce further evidence were adjourned by Thorpe LJ to the full Court. Mr McFarlane QC and Mr Gibbons represented the mother, Miss Vencatachellum for the father, Miss Rowe QC and Miss Stone for the local authority and Miss Hodgson for the guardian. We granted permission to adduce additional evidence. We refused permission to appeal and extension of time. We now give our reasons for our decision.
In the case of LB, the child, LB, was born on the 28 th October 1999. The mother sought to appeal the finding by Bracewell J on the 10 th January 2003 at the first (threshold) hearing that she had been responsible for 11 incidents of rigor suffered by the child between the 25 th September and the 1st October 2001. The decision on the second (disposal) hearing was given by Holman J on the 12 th September 2003. Holman J made a care order and approved a care plan by which LB would continue to live with her paternal grandparents. The applications for permission to appeal and for extension of time were adjourned by Thorpe LJ to the full Court. Mr Cobb QC appeared for the mother and Mr Howard QC and Ms O'Connor for the local authority. The guardian was not represented on the appeal. We reserved our decision on appeal.
We invited the Department for Education and Skills to intervene in both cases and it was represented by Miss Eleanor Grey and Miss Waddicor.
The standard of proof in civil family cases
Counsel for the mother in each application submitted that the principles set out by the House of Lords in re H (Minors) (Sexual Abuse:Standard of Proof)) [1996] AC 563, had been refined by subsequent dicta in three recent cases. Lord Nicholls in his speech in re H said at page 586et seq.
"Where the matters in issue are facts the standard of proof required in non-criminal proceedings is the preponderance of probability, usually referred to as the balance of probability. This is the established general principle. There are exceptions such as contempt of court applications, but I can see no reason for thinking that family proceedings are, or should be, an exception. By family proceedings I mean proceedings so described in the Act of 1989, sections 105 and 8(3). Despite their special features, family proceedings remain essentially a form of civil proceedings. Family proceedings often raise very serious issues, but so do other forms of civil proceedings.
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 whatever extent is appropriate in the particular case, that the more serious the allegation the less likely it is that the event occurred and, hence, the stronger should be the evidence before the court concludes that the allegation is established on the balance of probability. Fraud is usually less likely than negligence. Deliberate physical injury is usually less likely than accidental physical injury. A stepfather is usually less likely to have repeatedly raped and had non-consensual oral sex with his under age stepdaughter than on some occasion to have lost his temper and slapped her. Built into the preponderance of probability standard is a generous degree of flexibility in respect of the seriousness of the allegation.
Although the result is much the same, this does not mean that where a serious allegation is in issue the standard of proof required is higher. It means only that the inherent probability or improbability of an event is itself a matter to be taken into account when weighing the probabilities and deciding whether, on balance, the event occurred. The more improbable the event, the stronger must be the evidence that it did occur before, on the balance of probability, its occurrence will be established. Ungoed-Thomas J. expressed this neatly in In re Dellow's Will Trusts (1964) 1 W.L.R. 451, 455: "The more serious the allegation the more cogent is the evidence required to overcome the unlikelihood of what is alleged and thus to prove it."
This substantially accords with the approach adopted in authorities such as the well known judgment of Morris L.J. in Hornal v. Neuberger Products Ltd. (1957) 1 Q.B. 247, 266: This approach also provides a means by which the balance of probability standard can accommodate one's instinctive feeling that even in civil proceedings a court should be more sure before finding serious allegations proved than when deciding less serious or trivial matters."
In the first of the cases relied upon by Counsel, the Divisional Court heard an appeal, B v Chief Constable of Avon and Somerset Constabulary [2001] 1 WLR 340, against the making of a sex offender order under section 2 of the Crime and Disorder Act 1998(the 1998 Act). The justices had found that the defendant was a sex offender within the meaning of section 2(1) (a) of the Act and that he had acted on a number of occasions in a way which brought him within section 2(1) (b). Section 2(1) states that, if it appears to a chief officer of police that the following conditions are fulfilled …. in subsection (1) (a)
"that the person is a sex offender;" and
in subsection (1) (b)
"that the person has acted, since the relevant date, in such a way as to give reasonable cause to believe that an order under this section is necessary to protect the public from serious harm from him,"
then the chief officer may apply for an order under the section.
Lord Bingham of Cornhill, CJ in his judgment considered the standard of proof to be applied in that appeal and said at paragraph 31
"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. In deciding whether the condition in section 2(1) (b) is fulfilled the magistrates' court should apply the civil standard with the strictness appropriate to the seriousness of the matters to be proved and the implications of proving them."
We understand from that passage that Lord Bingham was drawing a distinction between the standard of proof necessary to establish each of the two subsections and that the standard of...
To continue reading
Request your trial
-
Briggs v Drylined Homes Ltd
...of probabilities; (3) The court must survey the “wide canvas” of the evidence ( Re U, Re B (Serious injuries: Standard of Proof) [2004] EWCA Civ 567 at [26], per Dame Elizabeth Butler-Sloss P (as then was)); the factual determination “must be based on all available materials” ( A County Co......
- Devon County Council v EB
-
In the matter of J, T, and C (Care Orders: Concurrent Criminal and Family Proceedings: Burden of Proof)
... ... eye and he believed that A had hit him causing the injury. D said the injury was sustained as a result of W falling ... Ms McA interviewed T and C in their home as part of a child protection investigation. At that interview T, whilst ... concerned with the child) and in terms of the standard of proof. They had to be sure of guilt; I have to ... In Re U (Serious Injury: Standard of Proof); Re B [2004] 2 FLR 263 the Court ... ...
-
TG (A Child)
...re U (A Child) (Department for Education and Skills intervening), In re B (A Child) (Department for Education and Skills intervening) [2004] EWCA Civ 567, [2005] Fam 134, para [23]: "The judge in care proceedings must never forget that today's medical certainty may be discarded by the next......
-
Interpreting the Threshold Criteria under section 31(2) of the Children Act 1989 – the House of Lords decision in Re B1
...upon whichto base their assessmentsof family relationships and par-43 [2003] 1 AC 787.44 [2003] 2 FLR 1205.45 [2004] EWCACiv 567, [2005] Fam134.46 n 1 aboveat [70].47 ibid, see in particular [71]^[72].48 Re S (Care Proceedings: SplitHearing) [1996 ] 2 FLR 773 ; ReY & K (Children) (Care proc......