A Law Lords judgement this week should clear up confusion for child protection practitioners about the standard of proof required for care proceedings, Cafcass has said.
The judgement clearly stated that the civil standard of proof – the balance of probabilities – applied to all care proceedings, meaning judges must decide whether it is more likely than not that a child has suffered – or is likely to suffer – significant harm.
The ruling was made as the Lords dismissed an appeal brought by a guardian representing two children in an ongoing case, which Cafcass intervened in.
Higher standard of proof
Baroness Hale said that a 1996 Law Lords judgement – known as re: H & R – had inadvertently created the impression that a higher standard of proof was required for more serious allegations in care cases.
This was because in re: H & R, Lord Nicholls had said “a court should be more sure before finding serious allegations proved than when deciding less serious or trivial matters”, because the former were less likely to occur.
However, Hale said: “Neither the seriousness of the allegation nor the consequences should make any difference to the standard of proof to be applied in determining the facts.”
Confusion in family courts
Cafcass head of safeguarding Elizabeth Hall said the Re: H & R judgement had led to a lot of confusion in family courts. She added: “It’s led to a perverse outcome where the more serious the possible risk of harm to a child, or the allegation of harm, the harder it is to prove.”
The new ruling will have an immediate impact on the work of family courts. Hall said: “It should mean in the future that there is less confusion about what evidence is appropriate for the courts to make a finding on, particularly in sexual abuse cases.”
This week’s ruling also dismissed the guardian’s claim that the threshold for a care order could be met when there was a “real possibility” that significant harm had taken place or would occur – a lower threshold than “balance of probabilities”.
In the case in question, a High Court judge had not been able to conclude that abuse took place but said there was a “real possibility” that it had.
Hale said: “The threshold is there to protect both the children and their parents from unjustified intervention in their lives. It would provide no protection at all if it could be established on the basis of unsubstantiated suspicions: that is, where a judge cannot say that there is a real possibility that abuse took place, so concludes that there is a real possibility that it did.”