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You are here: BAILII >> Databases >> United Kingdom House of Lords Decisions >> H & Ors (minors), Re [1995] UKHL 16 (05 April 2000) URL: https://www.bailii.org/uk/cases/UKHL/1995/16.html Cite as: [1996] 1 FLR 80, [1996] Fam Law 74, [2006] AC 563, [1996] 2 WLR 8, [1996] AC 563, [1996] 1 FCR 509, [1996] 1 All ER 1, [1995] UKHL 16 |
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[1995] UKHL 16
Lord Goff of Chieveley
Lord Browne-Wilkinson
Lord Mustill
Lord Lloyd of Berwick
Lord Nicholls of Birkenhead
LORD GOFF OF CHIEVELEY
My Lords,
LORD BROWNE-WILKINSON
My Lords.
"This is far from saying that I am satisfied the child's complaints are untrue. I do not brush them aside as the jury seem tohave
done. I am, at the least, more than a little suspicious that [Mr. R]
has
abused
her
as she says. If it were
relevant.
I would be prepared to
hold
that there is a
real
possibility that
her
statement and
her
evidence are true, nor
has
[Mr. R] by
his
evidence and demeanour, not only throughout the
hearing
but the whole of this matter, done anything to dispel those suspicions ..."
LORD MUSTILL
My Lords,
LORD LLOYD OF BERWICK
My Lords,
"A court may only make a care order or supervision order if it is satisfied (a) that the child concerned is suffering, or is likely to suffer, significantharm;
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."
"I am at the least more than a little suspicious that the [father]has
abused
her
as she says. If it were
relevant,
I would be prepared to
hold
that there is a
real
possibility that
her
statement and
her
evidence are true, nor
has
the [father] by
his
evidence and demeanour, not only throughout the
hearing
but the whole of this matter, done anything to dispel those suspicions ..."
(1) In order to establish that a child is "likely" to suffer significant harm
in the future, is it necessary to establish the likelihood of such
harm
on a balance of probabilities, i.e. to establish that it is more likely than not that the child will suffer such
harm
in the future, or is it enough that there is a "substantial" as opposed to a "speculative" risk?
"The word 'likely' which occurs in the last two of the three passages from the judgment which Ihave
quoted above, may be used in different senses. Sometimes it may be used to mean 'more likely than not' at other times to mean 'quite likely' or 'not improbably' though less likely than not."
"If the court is satisfied on the evidence that - (a) the case for the petitionhas
been proved; and (b) where the ground of the petition is adultery, the petitioner
has
not in any manner . . . condoned, the adultery ... the court shall pronounce a decree of divorce ..."
Lord Pearson said, at p. 676:
"The phrase 'is satisfied' means, in my view, simply 'makes up its mind'; the court on the evidence comes to a conclusion which, in conjunction with other conclusions, will lead to the judicial decision."
"Charges of sexual abuse in civil proceedings must be proved to a standard beyond a mere balance of probability, but not necessarily a standard as demanding as the criminal standard."
"[The judge] mayhave
found individual facts, such as inappropriate knowledge or behaviour, which constitute a
high
degree of concern about the child without being able to say on the test that they amount to actual abuse. They are,
however,
![]()
relevant
to the exercise of the discretion.
He
may
have
sufficient evidence of concern about the past care of the child to be satisfied that the child was in a potentially abusing situation without
having
sufficient evidence to be satisfied as to the extent of the abuse in the past or the identity of the abuser."
Stuart-Smith L.J. said, at p. 121:
"In the type of case with which we are concerned in these appeals there may be insufficient evidence upon which the judge can conclude that the fatherhas
sexually abused
his
children, nevertheless there may be sufficient evidence to show that there is a
real
chance, possibility or probability that
he
will do so in the future if granted access."
"It is not necessary to make a finding of sexual abuse against a named person in order for the judge to assess the risks to the child ofreturned
to that environment.
He
is engaged in a different exercise, that of the assessment of the possibilities for the future."
Neill L.J. said, at p. 228:
"There may also be cases,however,
where the court may not be in a position to make a positive finding on the evidence as to what
has
![]()
happened
in the past, but may nevertheless come to the conclusion that a child may be at risk for the future."
"Bearing in mind all these factors ... I find myself in the position that I cannot be sure to therequisite
![]()
high
standard of proof that C.'s allegations are true. It must follow that the statutory criteria for the making of a care order are not made out."
"If the likelihood of the child sufferingharm
in the future depends upon the truth of disputed allegations, the court must investigate the allegations and determine, on the balance of probabilities, whether they are true or false. It is not sufficient that there is a
real
possibility that the allegations may be true if the probability is that they are not."
"In the first it is plain that the court must be satisfied, on a balance of probabilities, that the child is suffering significantharm.
It is not enough for the court to conclude that there is a
real
possibility that the child may be suffering significant
harm.
The same test must be applied to the second factual situation."
"I very muchhope
that in approaching cases under the Children Act 1989 courts will not be invited to perform in every case a strict legalistic analysis of the statutory meaning of section 31."
(1) "Likely" in section 31(2)(a) means that there is a serious risk orreal
possibility that the child will suffer significant
harm.
(2) Where it is claimed that the childhas
suffered or is suffering significant
harm
the standard of proof is the simple balance of probabilities, no matter
how
serious the underlying allegation.
(3) Where it is claimed that the child is likely to suffer significantharm,
the simple one-stage approach suffices. The question is whether, on all the evidence, the court considers that there is a
real
possibility of the child's suffering significant
harm
in the future. If so, the threshold criterion is satisfied. The court does not
have
to be satisfied on the balance of probabilities that the child
has
in fact suffered significant
harm
in the past, whether by sexual abuse or otherwise, even where the allegation of abuse is the foundation of the local authority's case for a care order.
LORD NICHOLLS OF BIRKENHEAD
My Lords,
"if it is satisfied - (a) that the child concerned is suffering, or is likely to suffer, significantharm;
and (b) that the
harm,
or likelihood of
harm,
is attributable to - (i) the care given to the child, or likely to be given
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."
"It must follow that the statutory criteria for the making of a care order are not made out. This is far from saying that I am satisfied the child's complaints are untrue. I do not brush them aside as the jury seem tohave
done. I am, at the least, more than a little suspicious that [Mr R]
has
abused
her
as she says. If it were
relevant,
I would be prepared to
hold
that there is a
real
possibility that
her
statement and
her
evidence are true, nor
has
[Mr R] by
his
evidence and demeanour, not only throughout the
hearing
but the whole of this matter, done anything to dispel those suspicions, but this in the circumstances is nihil ad
rem."
"Likely" to suffer harm
The burden of proof
The standard of proof
"The more serious the allegation the more cogent is the evidencerequired
to overcome the unlikelihood of what is alleged and thus to prove it."
The threshold conditions
Suspicion and the threshold conditions
"... where the risk ofharm
depends on the truth of disputed allegations, the court must investigate them and determine whether they are true or false. Unless it finds that they are true, it cannot be satisfied that the child is likely to suffer significant
harm
if the order is not made."
"I . . . do not accept that if the evidencerelates
to alleged misconduct . . . that misconduct must itself be proved on a balance of probabilities before the evidence can be used to satisfy the threshold criteria in section 31(2)(a)."
A conclusion based on facts
Conclusion