Supreme Court confirms standard of proof when considering child injury – the role of the Social Worker – balance of probabilities – whether a judge should seek to identify the perpetrators of harm if unable to decide on balance of probabilities

When considering who caused injury to a child out of a pool of two or more potential perpetrators, the standard of proof was the civil standard on the balance of probabilities and that standard did not vary according to the gravity of the injuries or conduct alleged:  In re S-B (Children)(Care Proceedings: Standard of Proof): Judgment 14 December 2009.

 

The Supreme Court so held in allowing an appeal by the mother against the dismissal by the Court of appeal of her appeal against care and placement for adoption orders in respect of her two children at the request of Trafford Metropolitan Borough Council.

 

The case, said LADY HALE who gave the judgment of the court, concerned two brothers, one of whom had been harmed and one who had not.  The first had been inflicted by one or both of his parents.  The trial judge had found it more likely that only of them had been the perpetrator.

 

In In Re B (Children) (Care proceedings: Standard of Proof) 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 Re H 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.

 

The House in In re B had also recognised that courts and local authorities had different roles to play in protecting children from harm. Social workers were the detectives.  They put the evidence which they had assembled before a court and asked for an order.  The court subjected that evidence to critical scrutiny, found what the facts were, made predictions based upon the facts, and balanced a range of considerations in deciding what would be best for the child.

 

It should no more be expected that every case which a local authority brought to a court resulted in an order than it should be expected that every prosecution resulted in a conviction.

 

If every child protection case were to result in an order, it would mean either that local authorities were not bringing enough cases to court or that the courts were not subjecting those cases to a sufficiently rigorous scrutiny

 

The first question was whether it was settled law that the test to be applied to the identification of perpetrators was the balance of probabilities.  The observations 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.

 

The second and third questions which arose asked whether judges should refrain from seeking to identify perpetrators at all if they were unable to do so on the civil standard and whether they should now be discouraged from expressing a view on the comparative likelihood as between possible perpetrators.  Those appeared to be linked but they were distinct.

 

As to the second, 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 the parental care unless it would have been reasonable to expect a parent to have prevented it. 

 

In North Yorkshire County Council v SA  it was held that it was wrong to apply a “no possibility” test when identifying the pool of possible perpetrators.  That was far too wide.  Dame Elizabeth Butler-Sloss (President) preferred a test of a “likelihood or real possibility”  There were real advantages in adopting that approach.  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, as the President had indicated, 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.

 

As to the third question:  while it was helpful to have a finding as to who had caused the injuries (if such a finding could be made) it was positively unhelpful to have the sort of indication of percentages of likelihood that the judge had been invited to give in the present case.

 

It was established in In Re H that a prediction of future harm had to be based upon findings of actual fact made on the balance of probabilities.  It was only once those facts had been found that the degree of likelihood of future events became “the real possibility” test adopted in In Re H.