[1995] UKHL 16
HOUSE
OF LORDS
OPINIONS OF THE LORDS OF APPEAL FOR JUDGMENT
IN THE CAUSE
IN
RE
H
AND OTHERS (MINORS) (A. P.) (
RESPONDENTS)
ON THURSDAY 14 DECEMBER 1995
Lord Goff of Chieveley
Lord Browne-Wilkinson
Lord Mustill
Lord Lloyd of Berwick
Lord Nicholls of Birkenhead
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
reports,
have
been satisfied that there was a
real
possibility of an air-raid and given warning accordingly.
- So in the present case, the major issue was whether Dl
had
been sexually abused (the macro fact). In the course of the
hearing
before the judge a number of other facts (the micro facts) were established to the judge's satisfaction by the evidence. The judge in
his
careful judgment summarised these micro-facts: that Dl
had
been consistent in
her
story from the time of
her
first complaint; that
her
statement was full and detailed showing "a classic unfolding
revelation
of progressively worse abuse"; that there were opportunities for such abuse by Mr. R and that
he
had
been lying in denying that
he
had
ever been alone either with Dl or with any of the other children; that D2
had
made statements which indicated that she
had
witnessed "inappropriate" behaviour between Mr. R and Dl; that the mother (contrary to
her
evidence) also suspected that something
had
been going on between Mr. R and Dl and
had
sought to dissuade D2 from saying anything to the social workers. The judge also found a number of micro facts pointing the other way.
Having
summarized all these micro facts pointing each way,
he
reached
his
conclusion on the macro fact: "I cannot be sure to the
requisite
high
standard of proof that [Dl's] allegations are true". But
he
also made further findings (which
he
thought to be irrelevant in law) on the basis of the micro facts:
"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 to
have
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 ..."
- That conclusion that there was a
real
possibility that the evidence of Dl was true was a finding based on evidence and the micro facts that
he
had
found. It was not a mere suspicion as to the risk that Mr. R was an abuser: it was a finding of risk based on facts.
- My Lords, I am anxious that the decision of the
House
in this case may establish the law in an unworkable form to the detriment of many children at risk. Child abuse, particularly sex abuse, is notoriously difficult to prove in a court of law. The
relevant
facts are extremely sensitive and emotive. They are often known only to the child and to the alleged abuser. If legal proof of actual abuse is a prerequisite to a finding that a child is at risk of abuse, the court will be powerless to intervene to protect children in
relation
to whom there are the gravest suspicions of actual abuse but the necessary evidence legally to prove such abuse is lacking. Take the present case. Say that the proceedings
had
related
to Dl, the complainant,
herself.
After a long
hearing
a judge
has
reached
the conclusion on evidence that there is a "
real
possibility" that
her
evidence is true, i.e. that she
has
in fact been gravely abused. Can Parliament
really
have
intended that neither the court nor anyone else should
have
jurisdiction to intervene so as to protect Dl from any abuse which she may well
have
been enduring? I venture to think not.
- My Lords, for those
reasons
and those given by my noble and learned friend Lord Lloyd of Berwick I would allow the appeal.
LORD MUSTILL
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 would dismiss this appeal.
LORD LLOYD OF BERWICK
My Lords,
- In this case we are concerned with two sisters and two
half-sisters.
In September 1993 the eldest sister, C, then aged 15, gave a detailed written statement to the police in which she alleged that she
had
been subject to sexual abuse by
her
step-father since the age of 7 or 8, culminating in four acts of rape. The step-father (whom I shall
refer
to as "the father") was arrested and charged. C gave evidence at
his
trial. In October 1994
he
was acquitted on all six counts. The jury took only 14 minutes to
reach
their verdict.
- Meanwhile in February 1994 Nottinghamshire County Council applied for care orders in
respect
of the three younger sisters. It was decided not to apply for a care order in
respect
of C, since she
had
been living with foster-parents since November 1993, following a short period under police protection, and the placement appeared to be satisfactory.
- The
hearing
took place before
His
Honour
Judge Davidson Q.C. in November 1994. It lasted seven days. The question
he
had
to decide was whether the threshold criteria set out in section 31(2) of the Children Act 1989 were satisfied. That subsection provides:
"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, 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."
- Since it was not suggested that the three younger sisters
had
suffered or were suffering any
harm,
the question was whether, on the evidence before the court, the judge was satisfied that they were likely to suffer significant
harm
in the future.
- The judge
heard
from the mother (who came from prison to give
her
evidence) as well as the father. As to the mother,
he
found that
he
could not
rely
on
her
evidence, since she
had
been untruthful in at least three
respects
in the witness box. As to the father,
he
said that
he
had
seldom been less impressed by a witness. But, as
he
went on to point out, the fact that the mother and the father told material lies in the witness box did not mean that C was necessarily telling the truth.
- As to C
herself,
the judge set out carefully and comprehensively the factors which told for or against
her
evidence. It was clearly a most anxious case. But in the event
he
found that
he
could not be sure to the "
requisite
high
standard of proof" that C's allegations were true. Accordingly
he
held
that
he
had
no jurisdiction to make a care order. The threshold test was not met. But the judge did not leave it there.
He
went on to say that
he
was far from satisfied that C's complaint was untrue.
"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 ..."
- The Court of Appeal dismissed the local authority's appeal. Kennedy L.J. dissenting. There is now an appeal to your Lordships'
House.
The parties
have
helpfully
identified five points for decision. The first three are of general importance. I will take them in the
reverse
order, since it is only the third which gives rise to any difficulty.
(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" in ordinary language may mean probable, in the sense of more likely than not; or it may include what might well
happen.
Thus in Davies v. Taylor [1974] A.C. 207, one of the questions was whether the judge
had
applied the correct test in a case under the Fatal Accidents Acts 1846-1959. In the course of
his
judgment
he
had
used the word "likely" to indicate the test which
he
was applying. Lord Cross of Chelsea said, at p. 222:
"The word 'likely' which occurs in the last two of the three passages from the judgment which I
have
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."
- Similarly, in Dunning v. United Liverpool
Hospitals'
Board of Governors [1973] 1 W.L.R. 586, the question was whether a claim in
respect
of personal injuries was "likely to be made" for the purposes of section 31 of the Administration of Justice Act 1970. Lord Denning M.R. said, at p. 590 that "likely to be made" should be construed as meaning "may" or "may well be made." James L.J. said that
he
would construe "likely" as meaning a "
reasonable
prospect."
- Coming to section 31(2)(a) of the Act itself, the Court of Appeal in Newham London Borough Council v. A.G. [1993] 1 F.L.R. 281,
rejected
an argument that "likely to suffer significant
harm"
was to be equated with "on the balance of probabilities". In In
re
A (A Minor) (Care Proceedings) [1993] 1 F.L.R. 824, it was again argued that "likely" meant more probable than not. Thorpe J.
held
that the argument was not open to the appellants in the light of Newham London Borough Council v. A.G., a decision which
he
regarded
as of great importance.
- In the present case the Court of Appeal
have
held
unanimously, in line with the Newham case, that the threshold test is satisfied if, in the court's view, there is a
real
or substantial risk of significant
harm
in the future.
- Mr. Levy, for the
respondents,
submitted that the Newham case was wrongly decided.
He
pointed out that both
halves
of section 31(2)(a) are governed by the words "if [the court] is satisfied." Since, as was common ground, the court
has
to be satisfied on a balance of probabilities under the first
half
of the clause, i.e. that the child is suffering
harm,
it must follow (so
he
argued) that the court must be satisfied on a balance of probabilities that the child will suffer
harm
under the second
half
of the clause. Therefore "likely" in the second
half
of the clause must mean more likely than not. But this is a non sequitur. It confuses what
has
to be proved under the second
half
of the clause, i.e. the likelihood of significant
harm,
with the standard of proof
required
under the first
half
of the clause. There is no necessary connection between the two.
- As for the word "satisfied" on which Mr. Levy placed
reliance,
it does not throw any light on the degree of risk contemplated by the second
half
of the clause. It is a word with a range of meanings covering the criminal burden of proof ("satisfied so as to be sure") through the civil burden of proof ("satisfied on a balance of probabilities") to a synonym for "conclude" or "determine." In Blyth v. Blyth [1966] A.C. 643, the
House
had
to consider section 4(2) of the Matrimonial Causes Act 1950. That subsection provided:
"If the court is satisfied on the evidence that - (a) the case for the petition
has
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."
- Lord Pearce, at p. 672,
regarded
"satisfied" as a neutral word allowing of proof to a different degree in
relation
to the two
halves
of the subsection, i.e. proof of adultery and proof that the petitioner
has
not condoned the adultery. So
here,
the word "satisfied" in section 31(2)(a) is neutral. It means that the court must make up its mind. It thus bears the same meaning in
relation
to both
halves
of the clause, but. as I
have
said, throws no light on the meaning of "likely."
- I therefore conclude that the decision of the Court of Appeal as to the meaning of "likely to suffer significant
harm"
was correct.
- In so far as it is either
relevant
or necessary in proceedings under the Act to prove an allegation of sexual abuse, is the standard of proof
required
(i) a standard
higher
than the ordinary civil standard though falling short of the criminal standard of proof, (ii) the balance of probabilities, but so that the more serious the allegation the more convincing is the evidence needed to tip the balance in
respect
of it. or (iii) the simple balance of probabilities.
- All three counsel were agreed that the correct answer to the above question should be (ii). As a
result
there was no argument as to the theoretical difference between the three possible answers, or. perhaps more important, the practical consequences. Nor was there any citation of earlier authority on the point, of which there is a great deal.
- In the course of
his
judgment at first instance Judge Davidson
referred
to and followed the
headnote
in In
re
W (Minors) (Sexual Abuse: Standard of Proof) [1994] 1 F.L.R. 419, 420 which
reads:
"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."
- In other words, the judge favoured solution (i). In the Court of Appeal [1995] 1 F.L.R. 643 Millett L.J. said, at p. 659E, that in all civil cases there is only one standard of proof, namely, proof on the balance of probabilities, and that, contempt of court apart, it is never necessary to prove facts to a standard beyond the balance of probabilities. Since we
have
heard
no argument on the point, I am not for my part prepared to endorse so wide a proposition. It will
have
to await a future occasion when authorities in other branches of the civil law, including decisions of your Lordships'
House,
can be considered. So I propose to confine what I am about to say to the standard of proof under section 31(2) of the Act.
- In my view the standard of proof under that subsection ought to be the simple balance of probability
however
serious the allegations involved. I
have
reached
that view for a number of
reasons,
but mainly because section 31(2) provides only the threshold criteria for making a care order. It by no means follows that an order will be made even if the threshold criteria are satisfied. The court must then go on to consider the statutory checklist in section 1(3) of the Act. But if the threshold criteria are not met, the local authority can do nothing,
however
grave the anticipated injury to the child, or
however
serious the apprehended consequences. This seems to me to be a strong argument in favour of making the threshold lower rather than
higher.
It would be a bizarre
result
if the more serious the anticipated injury, whether physical or sexual, the more difficult it became for the local authority to satisfy the initial burden of proof, and thereby ultimately, if the welfare test is satisfied, secure protection for the child.
- Another indirect pointer may be found in section 26 of the Family Law
Reform
Act 1969. At common law the presumption of legitimacy could only be
rebutted
by proof beyond
reasonable
doubt. This was one of the considerations which led the
House
to its conclusion in Preston-Jones v. Preston-Jones [1951] A.C. 391. By section 26 of the Act of 1969 the presumption can now be
rebutted
on a simple balance of probabilities. Although in Serio v. Serio [1983] 4 F.L.R. 756, 763 the Court of Appeal
held
that the standard of proof should be "commensurate with the seriousness of the issue involved" (in other words, that it might
require
more than a mere balance of probabilities), this seems to
read
words into the statute which are not there. If the legislature
has
ordained that the presumption of legitimacy can be
rebutted
on a simple balance of probabilities, I
have
no great difficulty in concluding that section 31(2)
requires
a simple balance of probabilities, and no more, even when there is a serious allegation of sexual abuse.
- There
remains
the question whether anything should be said about the cogency of the evidence needed to "tip the balance". For my part I do not find these words
helpful,
since they are little more than a statement of the obvious; and there is a danger that the
repeated
use of the words will
harden
into a formula, which, like other formulas (especially those based on a metaphor) may lead to misunderstanding. The formula seems to owe its origin to the need to qualify or explain Denning L.J.'s judgment in Bater v. Eater [1951] p. 35 and
Hornal
v. Neuberger Products Ltd. [1957] 1 Q.B. 247. But once it is accepted that the standard of proof under section 31(2) is the simple balance of probabilities, and that the subsection does not
require
a degree of probability commensurate with the seriousness of the allegation, then the need for the qualification disappears. Despite the unanimity of counsel's preference for answer (ii) to the second question, I would prefer (iii), and leave the
rest
to the good sense of judges and magistrates. They will be well aware of, and pay full
regard
to, the factual context in which they must
reach
their difficult decisions.
- As for the present case, I can
have
no doubt that the judge applied a
higher
than ordinary standard of proof. It is what
he
says in plain terms. Sir Stephen Brown P. said that the judge may nevertheless
have
applied the right test and drew attention to the
reference
in
his
judgment to In
re
W (Minors) (Sexual Abuse: Standard of Proof) [1994] 1 F.L.R. 419. But In
re
W is the very case in which the Court of Appeal
held
that a
higher
than ordinary standard is
required.
Millett L.J. also thought that the judge
had
applied the correct test, despite what the judge said. I fear that in this
respect
the majority of the Court of Appeal were being over-generous to the judge.
- Where the allegation that a child is "likely to suffer significant
harm"
within the meaning of the second limb of section 31(2)(a) of the Act arises solely out of alleged sexual abuse in the past, is it first necessary to prove to the appropriate standard of proof (see (2) above) that such abuse
has
in fact occurred?
- The third question is the one that gives rise to difficulty. The problem can be stated quite simply. The case
has
been fought on the basis that the sole cause for concern are the allegations of sexual abuse made by C. It may be that in that
respect
the case is unusual, and that in many, if not most cases, a local authority applying for a care order will
rely
on a number of contributing factors. It is only when the local authority
relies,
as
here,
on a single incident or series of incidents
relating
to the same child, that the problem arises in a stark form. If the court finds on the balance of probabilities that the incidents did not occur,
how
can it go on to
hold
that by
reason
of those incidents there is a
real
or substantial risk of significant
harm
in the future?
- Before giving my answer to that conundrum, it is
helpful
to look at the background to section 31 of the Act. A feature of the 1970s and 1980s was the sudden and very rapid increase in the number of applications for wardship in the
High
Court, mainly due to the increased use of wardship by local authorities: see The Government White Paper on The Law on Child Care and Family Services (1987) (Cm. 62) p. 15, para. 59 published in January 1987, and the table set out in Bromley's Family Law, 8th ed., (1992) p. 477. One of the purposes of the Act of 1989, as I understand it, was to abrogate the power of the
High
Court to place a ward of court in care, (see section 100 of the Act, which
repealed
section 7 of the Family Law
Reform
Act 1969 and placed tight
restrictions
on the
High
Court's inherent jurisdiction), while at the same time making the benefits of the old wardship jurisdiction more generally available. As Butler-Sloss L.J. said in In
re
B (Minors) (Termination of Contact: Paramount Consideration) [1993] Fam. 301, at 310, the Act "aims to incorporate the best of the wardship jurisdiction within the statutory framework". The consequence was that Part IV and V of the Act became the only route open to a local authority for protecting children at risk.
- A number of cases prior to 1991 (when the Act of 1989 came into force) illustrate the old wardship approach. Thus in
H.
v.
H.
(Minor) (Child Abuse: Evidence) [1990] Fam. 86, a case concerning access, Butler-Sloss L.J. said, at p. 101:
"[The judge] may
have
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 father
has
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."
- In In
re
W (Minors) (Wardship: Evidence) [1990] 1 F.L.R. 203, another wardship case, Butler-Sloss L.J. said, at p. 215:
"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 of
returned
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."
- Although these cases were decided in wardship, and not under the Children Act, they underline a general point. Evidence which is insufficient to establish the truth of an allegation to a
required
standard of proof, nevertheless
remains
evidence in the case. It need not be disregarded. The point will be familiar to anyone who
has
taken part in a criminal trial. It is not uncommon for defence counsel to tell the jury that unless they are sure that a particular witness is telling the truth, they must
reject
his
evidence altogether. But this is quite wrong. The witness's evidence
remains
evidence in the case. The jury is entitled to take it into account in deciding whether on all the evidence they are sure of the defendant's guilt.
- I now
return
to the second
half
of section 31(2)(a). It
requires
the court to be satisfied that the child is likely to suffer significant
harm
in the future. There is nothing in the second
half
of the subsection which
requires
the court to make a finding about anything in the past or present. The finding of future risk must, of course, be based on evidence. It cannot be based on
hunch.
If there is no evidence to support a finding of risk, the finding will be set aside. But if there is such evidence, then a finding may be made, even though the same evidence is insufficient to support a finding of past fact. In the present case the judge was not persuaded by C.'s evidence that she
had
been sexually abused. But that does not mean that
he
rejected
her
evidence as worthless. On the contrary,
he
went out of
his
way to find that she might well
have
been telling the truth.
He
was prepared to
hold
that this was a
real
possibility.
- In those circumstances it would, I think,
have
been open to
him
to find, on C.'s evidence, that there was a
real
possibility of one or more of C.'s sisters suffering significant
harm
so as to satisfy the threshold test. But the judge never asked
himself
that question.
He
adopted what
has
been called the two-stage approach. Once
he
had
decided not to make a finding of sexual abuse on the balance of probabilities,
he
never asked
himself
the vital question posed by the second
half
of the subsection, whether, on such evidence as there was,
he
should make a finding of serious risk for the future. I quote from
his
judgment:
"Bearing in mind all these factors ... I find myself in the position that I cannot be sure to the
requisite
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."
- With great
respect
this does not follow. The fact that the first
half
of section 31(2)(a) is not satisfied on the balance of probabilities does not mean that the second
half
may not be satisfied. The two
halves
of the subsection are not interlinked, logically or linguistically. They could as well
have
been contained in separate sub-paragraphs.
- Sir Stephen Brown P. [1995] 1 F.L.R. 641, 652, and Milieu L.J., at p. 657, upheld and adopted the judge's two-stage approach. Milieu L.J. said, at p. 658:
"If the likelihood of the child suffering
harm
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."
- The fallacy, if I may
respectfully
say so, lies in the protasis. The likelihood of future
harm
does not depend on proof that disputed allegations are true. It depends on the evidence. If the evidence in support of the disputed allegations is such as to give rise to a
real
or substantial risk of significant
harm
in the future, then the truth of the disputed allegation need not be proved.
- In another passage p. 658 Millett L.J.
refers
to the two different factual situations covered by section 31(2)(a).
"In the first it is plain that the court must be satisfied, on a balance of probabilities, that the child is suffering significant
harm.
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
have
difficulty with the last sentence for two
reasons.
In the first place, there is nothing in the subsection which
requires
the same test to be applied to both
halves
of the subsection: see Blyth v. Blyth [1966] A.C. 643. The argument accepted by the majority in the court below is very similar, if not identical, to the argument
rejected
by the majority of the
House
in that case. Secondly, I am not clear in what sense the future, which is the subject matter of the second
half
of the subsection, can ever be said to be a "factual situation" subject to proof in the same way as past or present fact: see Davies v. Taylor [1974] A.C. 207, 212, per Lord
Reid
at p. 212.
- I confess that I much prefer the simpler one-stage approach adopted by Kennedy L.J. Although a two-stage approach may come naturally to lawyers, the same cannot necessarily be said for magistrates, social workers, and others who
have
got to understand and apply section 31. It may not be too difficult when there is an isolated issue of fact on which alone the outcome depends. But this will seldom, if ever, be the case in practice. Facts are always surrounded by other facts. Macro facts, to adopt my noble and learned friend Lord Browne-Wilkinson's vivid terminology, are surrounded by micro facts. In the usual case, there will be a number of interlocking considerations, all of which will give rise to separate issues of fact, and on all of which, if the Court of Appeal be right, the court would
have
to make separate findings on the balance of probabilities before proceeding to the second stage. Suppose, for example, there are three or four matters for concern which
have
led the social services to the belief that a child is at risk, on each of which there is credible evidence, supported, it may be, by evidence from a child psychiatrist, but suppose the evidence is insufficient on any of them to justify a finding that the child
has
been abused. Is the court powerless to proceed to the second stage? This is not what Parliament
has
said, and I do not think it is what Parliament intended. Parliament
has
asked a simple question: Is the court satisfied that there is a serious risk of significant
harm
in the future? This question should be capable of being answered without too much over-analysis.
- In an unusual case such as the present, which
has
been fought on the basis of a single issue of past fact, it will no doubt make sense for the court to start by deciding whether that issue
has
been proved to its satisfaction, or not. But this is only the beginning. Even if the evidence falls short of proof of the fact in issue, the court must go on to evaluate the evidence on that issue, together with all the other evidence in the case, and ask itself the critical question as to future risk.
- In Newham London Borough Council v. A.G. [1993] 1 F.L.R. 281, 289 Sir Stephen Brown P. said at page 289:
"I very much
hope
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."
- The editors of Clarke
Hall
& Morrison on Children, 10th ed. (Loose-leaf), vol. 1, para. 612, commented: "This strongly suggests that the court should be flexible in interpreting section 31 and then exercise its discretion in the light of sections 1 and 8." I agree.
- I
have
left to the end an argument which Millett L.J.
regarded
as confirming
his
approach. Under section 43 of the Act, a court may make an assessment order if it is satisfied that the local authority
has
"
reasonable
cause to suspect" that a child is likely to suffer significant
harm.
Under section 44 the court may make an emergency order if it is satisfied that there is "
reasonable
cause to believe" that the child is likely to suffer significant
harm.
Similarly, under section 38 it may make an interim care order if it is satisfied that there are "
reasonable
grounds for believing" that a child is likely to suffer significant
harm.
Finally, under section 31(2) the court may make an order if it is satisfied that the child is likely to suffer significant
harm.
- These sections
represent
progressive stages on the road to the making of a care order, from "cause to suspect" through "ground for belief" to the substantive finding. Little evidence suffices at the early stages. Much more evidence is
required
at the later stages. But it will be noticed that at all the stages the court
has
to be "satisfied" on whatever evidence there is. So the use of the word "satisfied" at the final stage does not, I think, point a contrast with the earlier stages; nor does it show, as Millett L.J. thought, that the likelihood of significant
harm
has
to be proved on a balance of probabilities before a care order can be made. For the
reasons
which I
have
attempted to state in answer to the first question "satisfied" is a neutral word which means no more than conclude or determine or decide.
- I can summarise my views as follows:
(1) "Likely" in section 31(2)(a) means that there is a serious risk or
real
possibility that the child will suffer significant
harm.
(2) Where it is claimed that the child
has
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 significant
harm,
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.
- It follows that the judge fell into error in two
respects.
First
he
applied a standard of proof in
respect
of C. 's allegation of sexual abuse which was manifestly too
high.
Secondly,
he
never asked
himself
the right question about significant
harm
in the future.
He
was misled by the two-stage approach, as a consequence of which
he
held
that the second and vital question did not arise.
- For the
reasons
which I
have
given, as well as those given by Kennedy L.J., I would allow this appeal. If I
have
not quoted at length from Kennedy L.J.'s judgment, it is only because I
have
read
it with admiration, and agree with every word.
- I would therefore
have
remitted
the case to the judge for a further
hearing
if there be continuing cause for concern. But as a majority of your Lordships take a different view, this will not be necessary.
LORD NICHOLLS OF BIRKENHEAD
My Lords,
- The subject of this appeal is the care of children. Section 31 of the Children Act 1989 empowers the court to make an order placing a child in the care of a local authority or putting a child under the supervision of a local authority or a probation officer. Section 31(2) provides that a court may only make such an order:
"if it is satisfied - (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
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."
- In short, the court must be satisfied of the existence or likelihood of
harm
attributable either to the care the child is
receiving
or likely to
receive
or to the child being beyond parental control.
Harm
means ill-treatment or impairment of
health
or development: see section 31(9). This appeal concerns the need for the court to be "satisfied" that the child is suffering significant
harm
or is "likely" to do so.
- The facts are set out in the judgment of Sir Stephen Brown P sitting in the Court of Appeal,
reported
at [1995] F.L.R. 643. For present purposes I can summarise them shortly. The mother
has
four children, all girls. Dl and D2 were children of
her
marriage to Mr.
H
in 1979. Dl was born in June 1978 and D2 in August 1981. Mr.
H
and the mother then separated. In 1984 she commenced living with Mr. R and they
had
two children: D3, born in March 1985, and D4, born in April 1992.
- In September 1993, when she was 15, Dl made a statement to the police. She said she
had
been sexually abused by Mr. R ever since she was 7 or 8 years old. She was then accommodated with foster-parents, and Mr. R was charged with
having
raped
her.
In February 1994 the local authority applied for care orders in
respect
of the three younger girls. Interim care orders were made, followed by interim supervision orders.
- In October 1994 Mr. R was tried on an indictment containing four counts of rape of Dl. Dl was the principal witness for the Crown. The jury acquitted Mr. R on all counts after a very short
retirement.
Despite this the local authority proceeded with the applications for care orders in
respect
of D2, D3 and D4. These girls were then aged 13, 8 and 2 years. The local authority's case, and this is an important feature of these proceedings, was based solely on the alleged sexual abuse of Dl by Mr. R.
Relying
on the different standard of proof applicable in civil and criminal matters, the local authority asked the Judge still to find that Mr. R
had
sexually abused Dl, or at least that there was a substantial risk
he
had
done so, thereby, so it was said, satisfying the section 31(2) conditions for the making of a care order in
respect
of the three younger girls.
- The applications were
heard
by Judge Davidson Q.C. sitting in the Nottingham County Court. On 23 November, after a
hearing
lasting seven days,
he
dismissed the applications.
He
was not impressed by the evidence of Mr. R or of the mother. Nevertheless
he
concluded
he
could not be sure "to the
requisite
high
standard of proof" that Dl's allegations were true.
He
added:
"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 to
have
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."
- By a majority, comprising the President and Millett L.J., the Court of Appeal dismissed an appeal by the local authority. Kennedy L.J. disagreed.
"Likely" to suffer
harm
- I shall consider first the meaning of "likely" in the expression "likely to suffer significant
harm"
in section 31. In your Lordships'
House
Mr. Levy Q.C. advanced an argument not open in the courts below.
He
submitted that likely means probable, and that the decision of the Court of Appeal to the contrary in Newham London Borough Council v. AG [1993] 1 F.L.R. 281 was wrong. I cannot accept this contention.
- In everyday usage one meaning of the word likely, perhaps its primary meaning, is probable, in the sense of more likely than not. This is not its only meaning. If I am going walking on Kinder Scout and ask whether it is likely to rain, I am using likely in a different sense. I am enquiring whether there is a
real
risk of rain, a risk that ought not to be ignored. In which sense is likely being used in this subsection?
- In section 31(2) Parliament
has
stated the prerequisites which must exist before the court
has
power to make a care order. These prerequisites mark the boundary line drawn by Parliament between the differing interests. On one side are the interests of parents in caring for their own child, a course which prima facie is also in the interests of the child. On the other side there will be circumstances in which the interests of the child may dictate a need for
his
care to be entrusted to others. In section 31(2) Parliament
has
stated the minimum conditions which must be present before the court can look more widely at all the circumstances and decide whether the child's welfare
requires
that a local authority shall
receive
the child into their care and
have
parental
responsibility
for
him.
The court must be satisfied that the child is already suffering significant
harm.
Or the court must be satisfied that, looking ahead, although the child may not yet be suffering such
harm,
he
or she is likely to do so in the future. The court may make a care order if, but only if, it is satisfied in one or other of these
respects.
- In this context Parliament cannot
have
been using likely in the sense of more likely than not. If the word likely were given this meaning, it would
have
the effect of leaving outside the scope of care and supervision orders cases where the court is satisfied there is a
real
possibility of significant
harm
to the child in the future but that possibility falls short of being more likely than not. Strictly, if this were the correct
reading
of the Act, a care or supervision order would not be available even in a case where the risk of significant
harm
is as likely as not. Nothing would suffice short of proof that the child will probably suffer significant
harm.
- The difficulty with this interpretation of section 31(2)(a) is that it would draw the boundary line at an altogether inapposite point. What is in issue is the prospect, or risk, of the child suffering significant
harm.
When exposed to this risk a child may need protection just as much when the risk is considered to be less than fifty-fifty as when the risk is of a
higher
order. Conversely, so far as the parents are concerned, there is no particular magic in a threshold test based on a probability of significant
harm
as distinct from a
real
possibility. It is otherwise if there is no
real
possibility. It is eminently understandable that Parliament should provide that where there is no
real
possibility of significant
harm,
parental
responsibility
should
remain
solely with the parents. That makes sense as a threshold in the interests of the parents and the child in a way that a
higher
threshold, based on probability, would not.
- In my view, therefore, the context shows that in section 31(2)(a) likely is being used in the sense of 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. By parity of
reasoning
the expression likely to suffer significant
harm
bears the same meaning elsewhere in the Act; for instance, in sections 43, 44 and 46. Likely also bears a similar meaning, for a similar
reason,
in the
requirement
in section 3l(2)(b) that the
harm
or likelihood of
harm
must be attributable to the care given to the child or "likely" to be given
him
if the order were not made.
The burden of proof
- The power of the court to make a care or supervision order only arises if the court is "satisfied" that the criteria stated in section 31(2) exist. The expression "if the court is satisfied",
here
and elsewhere in the Act, envisages that the court must be judicially satisfied on proper material. There is also inherent in the expression an indication of the need for the subject matter to be affirmatively proved. If the court is left in a state of indecision the matter
has
not been established to the level, or standard, needed for the court to be "satisfied". Thus in section 31(2), in order for the threshold to be crossed, the conditions set out in paragraphs (a) and (b) must be affirmatively established to the satisfaction of the court.
- The legal burden of establishing the existence of these conditions
rests
on the applicant for a care order. The general principle is that
he
who asserts must prove. Generally, although there are exceptions, a plaintiff or applicant must establish the existence of all the pre-conditions and other facts entitling
him
to the order
he
seeks. There is nothing in the language or context of section 31(2) to suggest that the normal principle should not apply to the threshold conditions.
The standard of proof
- 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.
- No doubt it is this feeling which prompts judicial comment from time to time that grave issues call for proof to a standard
higher
than the preponderance of probability. Similar suggestions
have
been made
recently
regarding
proof of allegations of sexual abuse of children: see In
re
G (A Minor) (Child Abuse: Standards of Proof) [1987] 1 W.L.R 1461,1466, and In
re
W (Minors) (Sexual Abuse: Standard of Proof} [1994] 1 F.L.R. 419,429. So I must pursue this a little further. The law looks for probability, not certainty. Certainty is seldom attainable. But probability is an unsatisfactorily vague criterion because there are degrees of probability. In establishing principles
regarding
the standard of proof, therefore, the law seeks to define the degree of probability appropriate for different types of proceedings. Proof beyond
reasonable
doubt, in whatever form of words expressed, is one standard. Proof on a preponderance of probability is another, a lower standard
having
the in-built flexibility already mentioned. If the balance of probability standard were departed from, and a third standard were substituted in some civil cases, it would be necessary to identify what the standard is and when it would apply.
Herein
lies a difficulty. If the standard were to be
higher
than the balance of probability but lower than the criminal standard of proof beyond
reasonable
doubt, what would it be? The only alternative which suggests itself is that the standard should be commensurate with the gravity of the allegation and the seriousness of the consequences. A formula to this effect
has
its attraction. But I doubt whether in practice it would add much to the present test in civil cases, and it would risk causing confusion and uncertainty. As at present advised I think it is better to stick to the existing, established law on this subject. I can see no compelling need for a change.
- I therefore agree with the
recent
decisions of the Court of Appeal in several cases involving the care of children, to the effect that the standard of proof is the ordinary civil standard of balance of probability: see
H
v.
H
(Minor) (Child Abuse: Evidence) [1990] Fam. 86, 94, 100, In
re
M (A Minor) (Appeal) (No 2) [1994] 1 F.L.R. 59,67, and In
re
W (minors) (Sexual Abuse: Standard of Proof) [1994] 1 F.L.R. 419,424, per Balcombe L.J. The Court of Appeal were of the same view in the present case. It follows that the contrary observations already mentioned, in In
re
G (A Minor) ( Child Abuse: Standard of Proof) [1987] 1 W.L.R. 1461,1466, and In
re
W (Minors) (Sexual Abuse: Standard of Proof) [1994] 1 F.L.R. 419,429, are not an accurate statement of the law.
The threshold conditions
- There is no difficulty in applying this standard to the threshold conditions. The first limb of section 31(2)(a) predicates an existing state of affairs: that the child is suffering significant
harm.
The
relevant
time for this purpose is the date of the care order application or, if temporary protective arrangements
have
been continuously in place from an earlier date, the date when those arrangements were initiated. This was decided by your Lordships'
House
in In
re
M (A Minor) (Care Orders: Threshold Conditions) [1994] 2 A.C. 424. Whether at that time the child was suffering significant
harm
is an issue to be decided by the court on the basis of the facts admitted or proved before it. The balance of probability standard applies to proof of the facts.
- The same approach applies to the second limb of section 31(2)(a). This is concerned with evaluating the risk of something
happening
in the future: aye or no, is there a
real
possibility that the child will suffer significant
harm?
Having
heard
and considered the evidence, and decided any disputed questions of
relevant
fact upon the balance of probability, the court must
reach
a decision on
how
highly
it evaluates the risk of significant
harm
befalling the child, always
remembering
upon whom the burden of proof
rests.
Suspicion and the threshold conditions
- This brings me to the most difficult part of the appeal. The problem is presented in stark form by the facts in this case. The local authority do not suggest that the first limb of section 31(2)(a) is satisfied in
respect
of D2, D3 or D4. They do not seek a finding that any of the three younger girls is suffering
harm.
Their case for the making of a care order is based exclusively on the second limb. In support of the allegation that D2, D3 and D4 are likely to suffer significant
harm,
the local authority
rely
solely upon the allegation that over many years Dl was subject to
repeated
sexual abuse by Mr. R.
- The judge
held
that the latter allegation was not made out. Mr. R did not establish that abuse did not occur. The outcome on this disputed serious allegation of fact was that the local authority, upon whom the burden of proof
rested,
failed to establish that abuse did occur.
However,
the judge
remained
suspicious and,
had
it been
relevant,
he
would
have
held
there was a
reasonable
possibility that Dl's allegations were true. The question arising from these conclusions can be expressed thus: when a local authority assert but fail to prove past misconduct, can the judge's suspicions or lingering doubts on that issue form the basis for concluding that the second limb of section 31(2)(a)
has
been established?
- In many instances where misconduct is alleged but not proved this question will not arise. Other allegations may be proved. The matters proved may suffice to show a likelihood of future
harm.
However,
the present case is not unique. In
re
P (A Minor) (Care: Evidence) [1994] 2 F.L.R. 751 is another instance where the same problem arose. There the only matter
relied
upon was the death of the child's baby brother while in the care of the parents. Douglas Brown J.
held
that it was for the local authority to prove that the death was non-accidental and that, since they failed to do so, there was no factual basis for a finding of likelihood of
harm
to the surviving child.
- In the Court of Appeal in the present case [1995] 1 F.L.R. 643 the President adopted the same approach (at p. 652). Since the judge
rejected
the only allegation which gave rise to the applications for care orders, it was not then open to
him
to go on and consider the likelihood of
harm
to the children. Millett LJ. agreed.
He
said, at p. 657:
"... where the risk of
harm
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."
- Kennedy L.J.
reached
a different conclusion. To satisfy the second limb there must be acceptable evidence of a
real
risk that significant
harm
will be sustained, but
he
added, at p. 654:
"I . . . do not accept that if the evidence
relates
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
- The starting point
here
is that courts act on evidence. They
reach
their decisions on the basis of the evidence before them. When considering whether an applicant for a care order
has
shown that the child is suffering
harm
or is likely to do so, a court will
have
regard
to the undisputed evidence. The judge will attach to that evidence such weight, or importance, as
he
considers appropriate. Likewise with
regard
to disputed evidence which the judge accepts as
reliable.
None of that is controversial. But the
rejection
of a disputed allegation as not proved on the balance of probability leaves scope for the possibility that the non-proven allegation may be true after all. There
remains
room for the judge to
have
doubts and suspicions on this score. This is the area of controversy.
- In my view these unresolved judicial doubts and suspicions can no more form the basis of a conclusion that the second threshold condition in section 31(2)(a)
has
been established than they can form the basis of a conclusion that the first
has
been established. My
reasons
are as follows.
- Evidence is the means whereby
relevant
facts are proved in court. What the evidence is
required
to establish depends upon the issue the court
has
to decide. At some interlocutory
hearings,
for instance, the issue will be whether the plaintiff
has
a good arguable case. The plaintiff may assert
he
is at risk of the defendant trespassing on
his
land or committing a breach of contract and that, in consequence,
he
will suffer serious damage. When deciding whether to grant an interlocutory injunction the court will not be concerned to
resolve
disputes raised by the parties' conflicting affidavit evidence.
- At trials,
however,
the court normally
has
to
resolve
disputed issues of
relevant
fact before it can
reach
its conclusion on the issue it
has
to decide. This is a commonplace exercise, carried out daily by courts and tribunals throughout the country. This exercise applies as much where the issue is whether an event may
happen
in the future as where the issue is whether an event did or did not
happen
in the past. To decide whether a car was being driven negligently, the court will
have
to decide what was
happening
immediately before the accident and
how
the car was being driven and why. Its findings on these facts form the essential basis for its conclusion on the issue of whether the car was being driven with
reasonable
care. Likewise, if the issue before the court concerns the possibility of something
happening
in the future, such as whether the name or get-up under which goods are being sold is likely to deceive future buyers. To decide that issue the court must identify and, when disputed, decide the
relevant
facts about the way the goods are being sold and to whom and in what circumstances. Then, but only then. can the court
reach
a conclusion on the crucial issue. A decision by a court on the likelihood of a future
happening
must be founded on a basis of present facts and the inferences fairly to be drawn therefrom.
- The same, familiar approach is applicable when a court is considering whether the threshold conditions in section 31(2)(a) are established.
Here,
as much as anywhere else, the court's conclusion must be founded on a factual base. The court must
have
before it facts on which its conclusion can properly be based. That is clearly so in the case of the first limb of section 31(2)(2). There must be facts, proved to the court's satisfaction if disputed, on which the court can properly conclude that the child is suffering
harm.
An alleged but non-proven fact is not a fact for this purpose. Similarly with the second limb: there must be facts from which the court can properly conclude there is a
real
possibility that the child will suffer
harm
in the future.
Here
also, if the facts are disputed, the court must
resolve
the dispute so far as necessary to
reach
a proper conclusion on the issue it
has
to decide.
- There are several indications in the Act that when considering the threshold conditions the court is to apply the ordinary approach, of founding its conclusion on facts, and that nothing less will do. The first pointer is the difference in the statutory language when dealing with earlier stages in the procedures which may culminate in a care order. Under Part V of the Act a local authority are under a duty to investigate where they
have
"
reasonable
cause to suspect" that a child is suffering or is likely to suffer
harm.
The court may make a child assessment order if satisfied that the applicant
has
"
reasonable
cause to suspect" that the child is suffering or is likely to suffer
harm.
The police may take steps to
remove
or prevent the
removal
of a child where a constable
has
"
reasonable
cause to believe" that the child would otherwise be likely to suffer
harm.
The court may make an emergency protection order only if satisfied there is "
reasonable
cause to believe" that the child is likely to suffer
harm
in certain eventualities. Under section 38 the court may make an interim care order or an interim supervision order if satisfied there are "
reasonable
grounds for believing" that the section 31(2) circumstances exist.
- In marked contrast is the wording of section 31(2). The earlier stages are concerned with preliminary or interim steps or orders.
Reasonable
cause to believe or suspect provides the test. At those stages, as in my example of an application for an interlocutory injunction, there will usually not
have
been a full court
hearing.
But when the stage is
reached
of making a care order, with the far-
reaching
consequences this may
have
for the child and the parents, Parliament prescribed a different and
higher
test: "a court may only make a care or supervision order if it is satisfied . . . that ... the child . . . is suffering, or is likely to suffer, significant
harm
..." This is the language of proof, not suspicion. At this stage more is
required
than suspicion,
however
reasonably
based.
- The next pointer is that the second threshold condition in paragraph (a) is cheek by jowl with the first. Take a case where a care order is sought in
respect
of a child on the ground that for some time
his
parents
have
been maltreating
him.
Having
heard
the evidence, the court finds the allegation is not proved. No maltreatment
has
been established. The evidence is
rejected
as insufficient. That being so, the first condition is not made out, because there is no factual basis from which the court could conclude that the child is suffering significant
harm
attributable to the care being given to
him.
Suspicion that there may
have
been maltreatment clearly will not do. It would be odd if, in
respect
of the self-same non-proven allegations, the selfsame insufficient evidence could nonetheless be
regarded
as a sufficient factual basis for satisfying the court there is a
real
possibility of
harm
to the child in the future.
- The third pointer is that if indeed this were the position, this would effectively
reverse
the burden of proof in an important
respect.
It would mean that once apparently credible evidence of misconduct
has
been given, those against whom the allegations are made must disprove them. Otherwise it would be open to a court to
hold
that, although the misconduct
has
not been proved, it
has
not been disproved and there is a
real
possibility that the misconduct did occur. Accordingly there is a
real
possibility that the child will suffer
harm
in the future and,
hence,
the threshold criteria are met. I do not believe Parliament intended that section 31(2) should work in this way.
- Thus far I
have
concentrated on explaining that a court's conclusion that the threshold conditions are satisfied must
have
a factual base, and that an alleged but unproved fact, serious or trivial, is not a fact for this purpose. Nor is judicial suspicion, because that is no more than a judicial state of uncertainty about whether or not an event
happened.
- I must now put this into perspective by noting, and emphasising, the width of the range of facts which may be
relevant
when the court is considering the threshold conditions. The range of facts which may properly be taken into account is infinite. Facts include the
history
of members of the family, the state of
relationships
within a family, proposed changes within the membership of a family, parental attitudes, and omissions which might not
reasonably
have
been expected, just as much as actual physical assaults. They include threats, and abnormal behaviour by a child, and unsatisfactory parental
responses
to complaints or allegations. And facts, which are minor or even trivial if considered in isolation, when taken together may suffice to satisfy the court of the likelihood of future
harm.
The court will attach to all the
relevant
facts the appropriate weight when coming to an overall conclusion on the crucial issue.
- I must emphasise a further point. I
have
indicated that unproved allegations of maltreatment cannot form the basis for a finding by the court that either limb of section 31(2)(a) is established. It is, of course, open to a court to conclude there is a
real
possibility that the child will suffer
harm
in the future although
harm
in the past
has
not been established. There will be cases where, although the alleged maltreatment itself is not proved, 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 a court in appropriate circumstances to find that, although not 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 the future.
- That is not the present case. The three younger girls are not at risk unless Dl was abused by Mr. R in the past. If she was not abused, there is no
reason
for thinking the others may be. This is not a case where Mr. R
has
a
history
of abuse. Thus the one and only
relevant
fact is whether Dl was abused by Mr. R as she says. The other surrounding facts, such as the fact that Dl made a complaint and the fact that
her
mother
responded
unsatisfactorily, lead nowhere
relevant
in this case if they do not lead to the conclusion that Dl was abused. To decide that the others are at risk because there is a possibility that Dl was abused would be to base the decision, not on fact, but on suspicion: the suspicion that Dl may
have
been abused. That would be to lower the threshold prescribed by Parliament.
Conclusion
- I am very conscious of the difficulties confronting social workers and others in obtaining
hard
evidence, which will stand up when challenged in court, of the maltreatment meted out to children behind closed doors. Cruelty and physical abuse are notoriously difficult to prove. The task of social workers is usually anxious and often thankless. They are criticised for not
having
taken action in
response
to warning signs which are obvious enough when seen in the clear light of
hindsight.
Or they are criticised for making applications based on serious allegations which, in the event, are not established in court. Sometimes, whatever they do, they cannot do right.
- I am also conscious of the difficulties facing judges when there is conflicting testimony on serious allegations. On some occasions judges are left deeply anxious at the end of a case. There may be an understandable inclination to "play safe" in the interests of the child. Sometimes judges wish to safeguard a child whom they fear may be at risk without at the same time
having
to fasten a label of very serious misconduct onto one of the parents.
- These are among the difficulties and considerations Parliament addressed in the Children Act when deciding
how,
to use the fashionable terminology, the balance should be struck between the various interests. As I
read
the Act, Parliament decided that the threshold for a care order should be that the child is suffering significant
harm,
or there is a
real
possibility that
he
will do so. In the latter
regard
the threshold is comparatively low. Therein lies the protection for children. But, as I
read
the Act, Parliament also decided that proof of the
relevant
facts is needed if this threshold is to be surmounted. Before the section 1 welfare test and the welfare "checklist" can be applied, the threshold
has
to be crossed. Therein lies the protection for parents. They are not to be at risk of
having
their child taken from them and
removed
into the care of the local authority on the basis only of suspicions, whether of the judge or of the local authority or anyone else. A conclusion that the child is suffering or is likely to suffer
harm
must be based on facts, not just suspicion.
- It follows that I would dismiss this appeal. In
his
judgment, when deciding that the alleged sexual abuse was not proved, the Judge
referred
to the
headnote
in In
re
W (Minors) (Sexual Abuse: Standard of Proof) [1994] 1 F.L.R. 419 and the need for a
higher
than ordinary standard of proof. Despite these
references
the Court of Appeal were satisfied that the Judge applied the right test. I agree.
Reading
his
judgment overall, I am not persuaded
he
adopted a materially different standard of proof from the standard I
have
mentioned above. Sexual abuse not
having
been proved, there were no facts upon which the Judge could properly conclude there was a likelihood of
harm
to the three younger girls.
- I
have
not
referred
to the wardship cases such as In
re
F (Minors) (Wardship: Jurisdiction) [1988] 2 F.L.R. 123,
H
v.
H
(Minor) (Child Abuse: Evidence) [1990] Fam. 86 and In
re
W (Minors) (Wardship: Evidence) [1990] 1 F.L.R. 203. I do not consider they assist in arriving at the proper meaning of the
relevant
provisions of the Children Act. In the material
respects the Act set up a new code. It is to be approached and interpreted accordingly.