#FamLaw: Should There Be a Third Standard of Proof in Care Cases?

Should There Be a Third Standard of Proof in Care Cases? ~ Simon Goddard, solicitor, Red Kite Law.

Simon Goddard, solicitor, Red Kite Law, questions whether the balance of probabilities is the appropriate standard of proof in all care proceedings.

 

The exceptional case

A new care case lands on your desk. The parents are together, married, both employed and up until last week had been looking after their 3 month old baby with no problems. At the first interview you find out that they are accused of fracturing their baby’s arm and that the baby also has fractures of the ribs. This condition was discovered when they took their child to A and E one evening due to the child having a very high temperature and fitting.  It seems the ‘on call’ paediatrician noticed something unusual and had the child x-rayed. The parents, who – like their immediate family – have had no previous involvement with social services,   could provide no explanation for the injuries. The paediatrician called the public protection unit, and police and social workers arrived. The child is now in temporary foster care under an interim care order. Not surprisingly this was regarded as a non accidental injury (NAI).

What is the standard of proof?

The standard of proof by which it is determined whether the threshold in section 31(2) of the Children Act 1989 has been met is the balance of probabilities. This was laid down in Re H and R (Child Sexual Abuse: Standard Of Proof) [1996] 1 FLR 80. In the years following that case it was suggested by some that there should apply in some cases a “heightened” standard of proof.  Re B (Children) (Care Proceedings: Standard of Proof) [2008] UKHL 35, re-affirmed in Re S-B (Children) [2009] UKSC 17, confirmed that the standard was the balance of probabilities. I will return to these cases later in this article.

Should this be the applicable standard in all such cases? In criminal matters the standard is beyond all reasonable doubt, as expounded inWoolmington v DPP [1935] UKHL 1, a much higher standard than the civil standard, but then in theory the penalties are much higher in the criminal courts. However are the penalties really higher? What can be worse for a parent than to have their child removed from them? In fact some parents would prefer to go to prison than have a child taken from them.

Some parents will have a long history of involvement with social services by the time care proceedings are started because of neglect, drug use, domestic violence or simply not providing good enough care. In such circumstances it would not be out of the ordinary if a child suffered a NAI. It might be argued that for cases of this type the current standard of proof is wholly appropriate. But what about the “one off family” as described in the first paragraph. Is it not inherently unfair to apply the current standard to them especially in cases where the suspected harm is deduced by a process of elimination?

The standards of proof applied in other jurisdictions

In the United States of America there are three standards applied: beyond reasonable doubt, the preponderance of the evidence (the civil balance of probabilities’), and the clear and convincing evidence. Preponderance of the evidence, also known as balance of probabilities, is the standard required in most civil cases. This is also the standard of proof used in grand jury indictment proceedings (which, unlike civil proceedings, are procedurally irrebuttable), and in family court determinations solely involving money, such as child support under the Child Support Standards Act.

Clear and convincing evidence is a more onerous burden of persuasion than “preponderance of the evidence”. It is employed adjudicatively in administrative court determinations, as well as in civil and certain criminal proceedings in the United States.

This standard is also known as “clear, convincing, and satisfactory evidence”, “clear, cognizant, and convincing evidence”; and “clear, unequivocal, satisfactory, and convincing evidence”, and is applied in cases or situations involving an equitable remedy or where a presumptive civil liberty interest exists. It is also used in many types of cases including child custody issues.

Clear and convincing evidence requires that it is highly and substantially more probable than not that the evidence presented by a party during the trial is true and the person who wishes to prove that fact must have a firm belief in the evidence.  By this standard, a greater degree of believability must be met than the common standard of proof in civil actions, which requires only that the facts as a threshold be more likely than not to prove the issue for which they are asserted. Canada has a similar system.

In Australia the civil standard of proof is laid down in Statute under s140 of the Evidence Act 1995 being the balance of probabilities. However, the court can take into account under sub-s (2) the nature of the cause of action or defence, the nature of the subject matter of the proceedings and the gravity of the matters alleged. There has been much debate about whether there might be applicable a third standard of proof in Australian law but seemingly this was laid to rest in a 1995 case Witham v Holloway (a contempt case).

In New Zealand the common law recognises only two standards: the civil and criminal standards but the standards are flexibly applied. The court takes into account the seriousness of the alleged act and the potential consequences. So in civil proceedings involving particularly grave matters the court may require stronger evidence before it is satisfied that the civil standard has been met. Examples include access orders in family law:  M v Y (1994). However under the Children Young Persons and Their Families Act 1989 if a child is declared in need of care or protection on the grounds that he or she has committed an offence then the criminal standard is applied beyond reasonable doubt.

The balance of probabilities and inherent (im)probability

In Re H and R (1996) the House of Lords was unanimous that the applicable standard of proof in such cases was the balance of probabilities.

Following H and R suggestions would be made, especially in lower courts, that a ‘heightened ‘ standard of proof / or cogency of evidence was required to prove disputed allegations in serious child protection cases .

In Re B the children’s guardian argued in favour of a “real possibility” test.  Cafcass intervened and the second day of the appeal was occupied by arguments, raised by Cafcass, that a third standard of proof did not exist.
The main judgment was given by Baroness Hale of Richmond but supported by the Appellate Committee. Apart from Baroness Hale’s judgment, Lord Hoffman made a number of points about the standard of proof.  He stated:

“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 and R 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.

“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.”

He then went on to give some examples of cases of the three categories. Under the second category came Re H and R.  In that case Lord Nicholls of Birkenhead had stated:

“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 step-father 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.”

Lord Steyn in R (McCann) v Crown Court at Manchester [2003] 1 AC 787, 812 had cited the above dicta by Lord Nicholls as authority for the existence of a heightened civil standard and in B v Chief Constable of Avon and Somerset Constabulary [2001] 1WLR 340 354 said “in serious cases such as the present the difference between the two standards is in truth largely illusory”. Dame Elizabeth Butler Sloss restored some clarity in Re U ( A Child) (2005)  stating that the standard of proof to be applied in Children Act 1989 cases is the balance of probabilities and the approach is laid down by Lord Nicholls in Re H and R.

Lord Hoffman ended his speech in Re B by stating:

“There is only one rule of law, namely that the occurrence of the fact in issue must be proved to have been more probable than not. Common sense, not law, requires that in deciding this question, regard should be had, to whatever extent appropriate, to inherent probabilities. If a child alleges sexual abuse by a parent, it is common sense to start with the assumption that most parents do not abuse their children. But this assumption may be swiftly dispelled by other compelling evidence of the relationship between parent and child or parent and other children. It would be absurd to suggest that the tribunal must in all cases assume that serious conduct is unlikely to have occurred. In many cases, the other evidence will show that it was all too likely. If, for example, it is clear that a child was assaulted by one or other of two people, it would make no sense to start one’s reasoning by saying that assaulting children is a serious matter and therefore neither of them is likely to have done so. The fact is that one of them did and the question for the tribunal is simply whether it is more probable that one rather than the other was the perpetrator.”

Baroness Hale of Richmond started her judgment with the words:

“Taking a child away from her family is a momentous step, not only for her, but for her whole family, and for the local authority which does so.”

She referred to the review of Child Care Law in 1985 and the White Paper which led to the Children Act 1989 in which the white paper stated that “only where their children are put at unacceptable risk should it be possible compulsorily to intervene”. As a result of this wording Section 31(2) of the Children Act came into being:

“A court may only make a care order or a 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.”

The issue then in care cases is the meaning of “is suffering or likely to suffer significant harm”: in effect the threshold criteria. The court is also to have regard to Section 1(3)(e) of the Children Act 1989.

Baroness Hale took the view that if the children’s guardian’s approach was correct then it was effectively reversing the burden of proof, and stated that the threshold was there to protect both children and their parents from unjustified intervention.

Baroness Hale made it very clear that the standard of proof to establish the threshold is:

” the standard of proof in finding the facts necessary to establish the threshold criteria….or the welfare  considerations in section 1 of the 1989 Act is the simple balance of probabilities, neither more nor less. Neither the seriousness of the allegation nor the seriousness of the consequences should make any difference to the standard of proof to be applied in determining the facts. The inherent probabilities are simply something to be taken into account, where relevant, in deciding where the truth lies.”

That approach must be correct. Whilst the human mind is tempted to accept that some acts of which parents are accused are so vile that they cannot have done them, time and time again parents have been shown to have committed the most horrendous acts against their children. I agree that in relation to the “seriousness of the allegation” there should not be any change to the standard of proof, but in particular cases which I described in my opening paragraph I think a third standard has a place for serious consideration.

Is the standard of proof immutable?

Whilst in this country we retain the two standards of proof, they are under review in various types of proceedings.

For example, in solicitors disciplinary proceedings brought by the SRA the standard is the civil standard. In appeal proceedings before the solicitors disciplinary tribunal the standard is the criminal one.  The SRA wants to introduce the civil test in the latter proceedings whereas the Law Society wants to keep the criminal standard. In Re A Solicitor [1993] QB 69, which considered the standard of proof to be applied by the SDT’s predecessor, Lord Lane CJ held that “at least in cases such as the present, where what is alleged is tantamount to a criminal offence, the tribunal should apply the criminal standard of proof”.

Prior to 2008 the major statutory regulators of the healthcare professions had applied the criminal standard of proof in determining allegations of misconduct. At that time the Secretary of State for Health stated that “the clincher is that if a case against an individual doctor was that serious the criminal benchmark would apply”. Yet in July 2008 the Health and Social Care Act 2008 was passed and s112 now requires the standard of proof to be that which is applicable in civil proceedings.

There have been a number of important High Court decisions over the past decade which have sought to establish special standards, with cases relating to sex offenders orders , football banning orders and anti social behaviour orders. In all the three settings the court concluded that the standard of proof to be applied was of a different, more stringent nature than the balance of probabilities.

These other proceedings involve findings against individuals whereas care proceedings are there to protect children by applying the threshold test under the Children Act 1989. The system is there first and foremost for children. However, equally parents have rights too, a right to a family life under Article 8 of the European Convention on Human Rights balanced by children’s rights under Articles 2 and 3.

Expert evidence and the development of medical knowledge

There have been a number of care cases involving non accidental injuries in which medical evidence has played a decisive part, such as LBof Islington v Al Alas and Wray [2012] EWHC 865 (Fam), A London Borough v M [2012],   Re A ( A Child) [2012] EWCA Civ 1477  and A Local Authority v M and Others [2013] .

A common theme running through these cases concerned the possible existence of Rickets and Vitamin D deficiency in the children which might have provided an explanation of multiple fractures. The first case of Al Alas and Wray received considerable publicity. The judgment ran to 107 pages. The local authority lost their case and the judge reiterated the standard as the “balance of probabilities”.  The second case of M also resulted in a loss to the local authority on the balance of probabilities.  The parents in the third case, Re A, did not gain permission to appeal as the judge found that they had no reasonable prospect of persuading the Court of Appeal.

In the fourth case the initial findings went against the parents but in view of the Al Alas and Wray case the judge granted the parents an opportunity to call new expert evidence and was “not persuaded on the balance of probability that the parents did cause these injuries”.

All of these cases involved very eminent experts whose evidence was crucial in establishing the causes of the children’s injuries.

In A Local Authority v M and Others one of the experts said that he could not be sure to the criminal standard of proof that this was a case of non accidental injury and put the balance of probability at about 75% which would satisfy the civil standard . In his view the civil standard would be against the parents but the criminal one would have been for the parents.

In the case of LB of Islington v Al Alas and Wray, the criminal court acquitted the parents on the criminal standard of proof but the local authority wished to continue with their care case. It was only because of the intervention of the judge in that case, who ordered that new expert evidence be adduced which supported the parents’ contention, that the local authority failed in their application for a care order. If there was a “third or enhanced standard” would the local authority have continued with their application?

Experts in these types of cases play a massive role and expert opinion can change, especially as medical knowledge develops. If the expert is wrong then a parent can lose a child. The consequences are huge and my view is that there is room for another standard of proof, say an “enhanced standard” but only in very specific cases. I agree that the majority of care cases that come before the court should be decided on the “balance of probabilities”. Nor am I seeking to raise again the arguments rejected in Re B that the more serious the allegation, the better the evidence should be.

What does concern me however is the type of case that I described in my opening paragraph. In those cases I believe there is room in our common law for a “third or enhanced  standard of proof”. That standard would lie somewhere between the civil and criminal and could be equated to the third standard in America, the “clear and convincing evidence” which would not only apply a higher standard of proof but consequentially a higher standard of evidence.

What is an exceptional case?

When though would this third standard apply? It is very easy to say that it would only apply to the type of case which I have described above. Life though is not quite as black and white as that type of case. What of the parent who has had past issues with drugs and alcohol but has turned their life around? What if they have convictions which occurred many years in the past and which are now spent? In short how far back do a parent’s historical issues affect the current circumstances and how much weight should be attached to them? In all care cases historical evidence is often a defining factor to show that a parent cannot change and be the parent they should be.

It can be seen that there will probably not be many cases where this third standard should apply and quite rightly each case will be defined by the specifics of that case. Now that the care proceedings are so front loaded with disclosure it would be entirely possible for the court to determine at the first hearing whether this third standard would apply from the outset. That no doubt may lead to other litigation and other applications within the proceedings but that is the nature of court proceedings and no stone should be left unturned if a child has to be protected and the parent risks losing his or her child.

The child protection legislation and court procedures in this country are established to put children first. However, I do believe that there should be room for the court to consider in some cases, which I fully  accept are rare, that the standard of proof to cross the threshold has to be higher than simply the balance of probabilities.

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