Thursday, 12 June 2008

Appeal arising from findings that a High Court judge could not determine whether or not the children were at risk of harm. Appeal dismissed.

Full Report:

1. I have had the advantage of reading in draft the speech to be delivered by my noble and learned friend Baroness Hale of Richmond and I am in complete agreement with her reasoning, analysis of the authorities and conclusions. I add some observations on the standard of proof only to underline, without in any way qualifying, what she has said. 2. If a legal rule requires a fact to be proved (a "fact in issue"), a judge or jury must decide whether or not it happened. There is no room for a finding that it might have happened. The law operates a binary system in which the only values are 0 and 1. The fact either happened or it did not. If the tribunal is left in doubt, the doubt is resolved by a rule that one party or the other carries the burden of proof. If the party who bears the burden of proof fails to discharge it, a value of 0 is returned and the fact is treated as not having happened. If he does discharge it, a value of 1 is returned and the fact is treated as having happened. 3. The effect of the decision of the House in Re H (Minors)(Sexual Abuse: Standard of Proof) [1996] AC 563 is that section 31(2)(a) of the Children Act 1989 requires any facts used as the basis of a prediction that a child is "likely to suffer significant harm" to be proved to have happened. Every such fact is to be treated as a fact in issue. The majority of the House rejected the analogy with facts which merely form part of the material from which a fact in issue may be inferred, which need not each be proved to have happened. There is of course no conceptual reason for rejecting this analogy, which in the context of some predictions (such as Lord Browne-Wilkinson's example of air raid warnings) might be prudent and appropriate. But the House decided that it was inappropriate for the purposes of section 31(2)(a). It is this rule which the House reaffirms today. 4. The question which appears to have given rise to some practical difficulty is the standard of proof in such cases, that is to say, the degree of persuasion which the tribunal must feel before it decides that the fact in issue did happen. Re H (minors) makes it clear that it must apply the ordinary civil standard of proof. It must be satisfied that the occurrence of the fact in question was more likely than not. 5. Some confusion has however been caused by dicta which suggest that the standard of proof may vary with the gravity of the misconduct alleged or even the seriousness of the consequences for the person concerned. The cases in which such statements have been made fall into three categories. First, there are cases in which the court has for one purpose classified the proceedings as civil (for example, for the purposes of article 6 of the European Convention) but nevertheless thought that, because of the serious consequences of the proceedings, the criminal standard of proof or something like it should be applied. Secondly, there are cases in which it has been observed that when some event is inherently improbable, strong evidence may be needed to persuade a tribunal that it more probably happened than not. Thirdly, there are cases in which judges are simply confused about whether they are talking about the standard of proof or about the role of inherent probabilities in deciding whether the burden of proving a fact to a given standard has been discharged. 6. A case in the first category was R v Secretary of State for the Home Department, Ex p Khawaja [1984] AC 74 which concerned the summary removal of an immigrant on the ground that he had obtained leave to enter by fraud or deception. These were civil proceedings and Lord Scarman, who dealt with this point most fully, was reluctant to say that the criminal standard of proof should apply: see p. 112. Instead, he said: "I have come to the conclusion that the choice between the two standards is not one of any great moment. It is largely a matter of words. There is no need to import into this branch of the civil law the formula used for the guidance of juries in criminal cases. The civil standard as interpreted and applied by the civil courts will meet the ends of justice." 7. He then cited Bater v Bater [1951] P 35, in which the Court of Appeal managed to rule that although it was a misdirection for a judge in matrimonial proceedings to say that the criminal standard of proof applied to allegations of cruelty (Davis v Davis [1950] P 125) it was correct to say that they had to be proved beyond reasonable doubt. Lord Scarman then referred to Hornal v Neuberger Products Ltd [1957] 1 QB 247, which was a case in the second category, and went on at p113:

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