CHILDREN ? Care proceedings ? Threshold conditions ? Whether children likely to suffer significant harm ? Whether likelihood of harm attributable to care likely to be given to children if care order not made ? Uncertainty as to which parent responsible for significant harm suffered in past ? Whether threshold condition that children likely to suffer significant harm satisfied ? Whether standard of proof balance of probabilities ? Children Act 1989, s 31(2)
SC: Lord Hope of Craighead DPSC, Lord Rodger of Earlsferry, Baroness Hale of Richmond, Lord Brown of Eaton-Under-Heywood, Lord Collins of Mapesbury, Lord Kerr of Tonaghmore, Lord Clarke of Stone-Cum-Ebony JJSC: 14 December 2009
The test to be applied to the identification of a potential perpetrator, out of a pool of two or more potential perpetrators, who might have caused harm to a child was the balance of probabilities and that standard of proof did not vary according to the gravity of the misconduct alleged or the seriousness of the consequences for the persons concerned.
The Supreme Court so held in allowing an appeal by the mother, S-B, against a decision of the Court of Appeal (Thorpe, Longmore LJJ and Bodey J)  EWCA Civ 1048 dismissing the mother?s appeal against care and placement for adoption orders in respect of her two children made, on the request of Trafford Metropolitan Borough Council, by Judge Kushner QC, sitting as a deputy judge of the Family Division in Manchester on 11 February 2009. The court remitted the case for a complete rehearing before a different judge.
BARONESS HALE OF RICHMOND JSC, giving the judgment of the court, said that the leading case on the ?threshold provisions? for the making of a care order under s 31(2) of the Children Act 1989 was In re H (Minors) (Sexual Abuse: Standard of Proof)  AC 563. In In re B (Children) (Care Proceedings: Standard of Proof) (CAFCASS intervening)  AC 11 the House of Lords had reaffirmed that the standard of proof of past facts was the simple balance of probabilities, no more and no less. A problem had arisen because of dicta which suggested that the standard of proof might vary with the gravity of the misconduct alleged or even the seriousness of the consequences for the person concerned. Despite the care that Lord Nicholls of Birkenhead had taken in In re H , at p 586, to explain that he did not mean that the standard of proof was higher, others had referred to a ?heightened standard of proof? where the allegations were serious. In re B reaffirmed the principles adopted in In re H while rejecting the nostrum, ?the more serious the allegation, the more cogent the evidence needed to prove it?, which had become a commonplace but was a misinterpretation of what Lord Nicholls had in fact said. In re B was not a new departure in any context.
A question which arose was whether it was now settled law that the test to be applied to the identification of perpetrators was the balance of probabilities. The parties were agreed that it was and they were right. The observations in In re B, at paras 15 and 73, made it clear that the same approach was to be applied to the identification of perpetrators as to any other factual issue in the case. There was no necessary connection between the seriousness of an allegation and the improbability that it had taken place. The test was the balance of probabilities, nothing more and nothing less. It might be difficult for the judge to decide, even on the balance of probabilities, who had caused the harm to the child. There was no obligation to do so. Unlike a finding of harm, it was not a necessary ingredient of the threshold criteria. Judges should not strain to identify the perpetrators.
Another question was whether judges should refrain from seeking to identify perpetrators at all if they were unable to do so on the civil standard. However, if the judge could not identify a perpetrator or perpetrators, it was still important to identify the pool of possible perpetrators. If the harm had been caused by someone outside the home or family, for example at school or in hospital or by a stranger, then it was not attributable to parental care unless it would have been reasonable to expect a parent to have prevented it. The cases were littered with references to a ?finding of exculpation? or to ?ruling out? a particular person as responsible for the harm suffered. That was to set the bar far too high. It suggested that parents and other carers were expected to prove their innocence beyond reasonable doubt. If the evidence was not such as to establish responsibility on the balance of probabilities it should nevertheless be such as to establish whether there was a real possibility that a particular person was involved. When looking at how best to protect the child and provide for his future, the judge would have to consider the strength of that possibility as part of the overall circumstances of the case.
Appearances: Anthony Hayden QC and Magdalen Case (instructed by Dawson Cornwell) for the mother; Susan Grocott QC and Sasha Watkinson (instructed by Legal Services, Trafford Metropolitan Borough Council, Manchester) for the local authority; Frances Judd QC and Alexander Kloss (instructed by Rowlands, Manchester) for the children?s guardian.
Reported by: B L Scully, barrister