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Standard of Proof in Care Order Applications under the Children Act 1989

M E Rodgers

Solicitor and Senior Lecturer in Law
Faculty of Law
Nottingham Trent University


Copyright © 1996 M E Rodgers.
First Published in Web Journal of Current Legal Issues in association with Blackstone Press Ltd.


In re H and Others (Minors) [1995] 2 WLR 8, HL is the culmination of a series of appeals by the Nottingham County Council against the judgment of His Honour Judge Davidson on 23rd November 1994. The application for care orders under Children Act 1989, s 31, in respect of 3 children was refused. A subsequent appeal to the Court of Appeal was dismissed on 14th December 1994. The Local Authority appealed to the House of Lords, the matter being heard on 17 & 18th July 1995, with judgement reserved, and opinions being delivered on 14th December 1995.





The mother had four children, all girls, of whom two were born during the mother's marriage to Mr H, and the younger two born during the mother's relationship with Mr R, a relationship that was still continuing. The eldest daughter, C, made allegations in September 1993 to the effect that she had been sexually abused by Mr R on a regular basis since she was about 7 or 8 years of age - a period of about 5 years. C was accommodated by the Local Authority, and charges were brought against Mr R for rape. In early 1994, the Local Authority applied for, and was granted, interim care orders on the three other daughters. These orders were later followed by interim supervision orders. Mr R was tried on four charges of rape in October 1994, with C being the principal witness. Mr R was acquitted by the jury on all counts after a short retirement. The applications for full care orders were pursued by the Local Authority, relying on the alleged sexual abuse of C. The Local Authority case being that, albeit the criminal case had been unsuccessful, it was still open to the judge to find the younger girls were "likely to suffer significant harm", and hence satisfy the threshold criteria of the Children Act 1989, s 31 (2), as the standard of proof in the civil case was lower than that in the criminal proceedings. His Honour Judge Davidson held that whilst he remained "more than a little suspicious" that C had been abused by Mr R, he "could not be sure to the requisite high standard of proof that C's allegations were true" and consequently could not find the threshold criteria satisfied, and declined to make the orders. The Court of Appeal (Sir Stephen Brown, Kennedy (dissenting) and Millett LJJ) upheld the approach of the judge at first instance and dismissed the Local Authority's appeal.

The Local Authority appealed with leave of the House of Lords.

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The House of Lords dismissed the appeal (Lord Browne-Wilkinson and Lord Lloyd of Berwick dissenting).

One of the main issues to be considered was the standard of proof required to satisfy the threshold criteria in s 31 (2)(a), and the nature of the evidence required to establish whether a child "is likely to suffer significant harm". Their Lordships were of the view that the standard of proof, even in a case involving sexual abuse, was that of the civil law in general - the balance of probabilities. They consequently overruled the cases of In re G (A Minor)(Child Abuse: Standard of Proof) [1987] 1 WLR 1461 and In re W (Minors)(Sexual Abuse: Standard of Proof) [1994] 1 FLR 419, both Court of Appeal decisions. With regard to the meaning to be given to the word "likely", it should be interpreted as being "a real possibility".

The only evidence to support the case were the allegations made by C, and the judge had rejected this evidence. Without anything more, the court could not go on to conclude that there was a real possibility that the other children would suffer significant harm in the future. In any case the court must found its conclusions on facts. Facts which are alleged, but un-proven would not carry any, or sufficient weight to justify the court being satisfied that the threshold criteria were met, and hence the Local Authority case must fail.

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This case has been heralded as a landmark in the interpretation of the Children Act 1989 and has been received with some alarm by various local authorities. The House of Lords decision has been said to "tighten rules on child protection" - The Guardian, 15 December 1995, and has been "hailed" as a "major breakthrough" - The Express & Star, 15 December 1995. However, a careful reading of the leading speech, delivered by Lord Nicholls of Birkenhead, shows that the decision is not a breakthrough in preventing traumas such as the Orkney case, and neither should it tighten the means by which children can be protected under care orders by local authorities.

The House of Lords was concerned with three major issues, the meaning of "likely" in the context of the Children Act 1989 s 31 (2), the standard of proof that is required, in particular when sexual abuse is alleged, and finally, whether in the absence of clear evidence to support abuse, the suspicion of the judge is sufficient to found the making of the care order.

The relevant legislation states that a court can only consider making a care order "if it is satisfied that the child concerned is suffering, or is likely to suffer, significant harm" and that this actual or likely harm is due 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 give" s 31 (2)(a)(b).

In interpreting the word "likely" in s 31, both the Court of Appeal and the House of Lords adopted the same interpretation. The correct meaning was whether there "is a real possibility [of harm], 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 (at p 23). The Law Lords were quite content to agree on this interpretation in preference to such meanings as "probable" or "more likely than not". Lord Nicholls being of the opinion that this latter interpretation would have resulted in care orders not being available in cases where Parliament clearly intended them to be.

This interpretation is certainly a common-sense one, which, whilst it allows some discretion to the trial judge, does allow a degree of balance between the rights of the child to be protected and the parentsí rights to be free from unwarranted state intervention. Hence the meaning should be applauded.

A more contentious point, to which the Lords then directed themselves, was that of the standard of proof required in care cases, especially where sexual abuse is involved. In previous Court of Appeal decisions, there has been some confusion with some cases preferring to use the standard "balance of probabilities" test, and others requiring a higher standard, but falling below that of the criminal standard of "beyond reasonable doubt". In Re W (Minors)(Sexual Abuse: Standard of Proof) [1994] 1 FLR 419 the Court of Appeal highlighted both of the available options. Bedlam LJ states (at p 429):

"the standard of proof to be required is nevertheless commensurate with the serious nature of the issues raised. So they must be proved to a standard beyond a mere balance of probabilities but not necessarily a standard as demanding as the criminal standard".

By contrast, Balcombe LJ states the standard as follows (at p 424):

"The standard is the balance of probabilities. The more serious the allegations the more convincing is the evidence needed to tip the balance in respect of it".

In Re H, the test propounded by Balcombe LJ was preferred. Lord Nicholls explains his understanding of the way in which the evidence must "tip the balance" thus (at p 23):

"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."

Lord Lloyd, whilst not decrying the test put forward by Balcombe, did not like the use of the phrase "tip the balance" which he felt was merely stating the obvious and which he feared would harden into a formula capable of being misunderstood. It could be suggested that the argument on different standards of proof is founded on a mere play on words. If, as Lord Nicholls states, the evidence must be stronger to prove a serious allegation, is he not simply endorsing the view of Bedlam LJ that the standard of proof is commensurate with the seriousness of the issues raised? The semantics are such that it is not clear if this case really has clarified the conflicting views on standard of proof. Despite the House of Lords (and other lower courts) drawing a distinction between the two approaches, it is submitted that the distinction is a false one. The words may be different, but ultimately, and in practice, they require the courts to approach the issue of how cogent the evidence is in the same way. In either test, the evidence must be sufficiently cogent to warrant the imposition of what is in reality a serious order - that of removing a child from its parents. The only real alteration is that all courts should now be using the same language. If this can be deemed to be a landmark, then perhaps the case deserves this status - if not, then perhaps the final issue looked at by the House will provide it.

The final issue for consideration by the House, was whether the disputed and unproved evidence of C was sufficient to satisfy the court that care orders on the other children should be made. In other words, is mere suspicion enough? The trial judge had indicated that he was suspicious that the sexual abuse had occurred as mentioned in the Court of Appeal by Millett LJ. He had, however, decided that this would not meet the threshold criteria of s 31, already mentioned. The Court of Appeal agreed with this finding, as did the House of Lords. Is this a new or novel finding, or is it simply a statement of something which courts should have been doing since the Children Act 1989 was brought into force?

Initially it should be noted that the language of s 31 is present or future - a child is suffering, or is likely to suffer. As highlighted by Masson and Morris (1992, p 97) "the fact that there has been harm in the past will not be sufficient unless it is likely that it will be repeated", or in other words, past harm, on its own, should never be sufficient to found an application for a care order, unless additional evidence can be adduced to support the view that it will occur again. Even if the trial judge had been satisfied the eldest daughter C had been sexually abused by Mr R (which he wasn't), the Local Authority should not have been able to succeed unless they could have shown by means of other evidence, that Mr R was likely to abuse again. As Lord Nicholls points out (at p 29) "this is not a case where Mr R has a history of abuse". If local authorities are making applications without the presence of such supporting evidence, then it is clearly within a courts remit to refuse the application, and arguably if the court does make an order in this situation, they are not applying the Children Act 1989 correctly.

Comments have been made that, following this decision, local authorities will only be able to succeed in care order applications if they have evidence of actual/past abuse. Representatives for local authorities should not despair, and neither should representatives for the parents shout out with glee. This is simply not the case and Lord Nicholls makes this quite clear. If a local authority fails to establish sexual, or other abuse, using the standards put forward in the instant case, it is still possible to obtain the orders if the authority can provide other evidence indicating future harm. Lord Nicholls goes to some length to explain that there are a range of facts that may be relevant to the courtís decision. The court must always be guided by proven, as opposed to unproven facts, but even if a fact is unproven that does not mean the order cannot be made if the evidence "does establish a combination of profoundly worrying features affecting the care of the child within the family. In such cases it would be open to the find that, although satisfied the child is yet suffering significant harm, on the basis of such facts as are proved there is a likelihood that he will do so in future" (per Lord Nicholls at pp 28-29). In this case, no other facts were put before the court (unlike a similar case reported as Re G and R (Child Sexual Abuse: Standard of Proof) [1995] 2 FLR 867), and hence this option was not available. It is no surprise that the care orders were not made. The Local Authority appears to have proceeded on very little evidence at all, something that all local authority solicitors should be careful to avoid and the result that was given was nothing more than should have been expected.

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From the above, it is apparent that the case is nothing out of the ordinary. Yes, it does perhaps clarify, or make consistent some of the terminology for the courts. It does not change the nature of the evidence required to obtain a care order, nor does it change the burden of proof. It does make abundantly clear that orders cannot be made where there is no evidence but this can only be the right approach. The decision may not be a victory for any campaign groups, but it is certainly a victory for common-sense. One very disheartening aspect of the matter remains - the fact that the case took one year to be decided after the Court of Appeal decision. It can only be speculated why the House of Lords took nearly 6 months to reach its decision. Is this consistent with the Children Act 1989 s 1 (3) welfare principle which highlights the fact that delay is prejudicial to the welfare of the child? It is submitted that it is not, and the House should address this issue in any future matters it is called upon to decide.

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Masson & Morris (1992) The Children Act Manual (London: Sweet and Maxwell)

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