Evidence allowed – Care Application after Abuse
Children had made allegations of serious sexual abuse against their step-father. He was acquitted at trial, but the local authority went ahead with care proceedings. The parents appealed against a finding that a likely risk to the children had still been been found.
Held: A care order could only to be made if the need was proved on the facts, however strong is the suspicion.
The House considered the matters which, in this context, the court may take into account in assessing whether the child is likely to suffer significant harm. In the context of section 31(2)(a) ‘likely’ does not mean more probable than not. It means a real possibility, a possibility that cannot sensibly be ignored having regard to the nature and gravity of the feared harm in the particular case. This is a comparatively low level of risk.
(Majority) For the purpose of satisfying this threshold level of risk in cases (such as alleged sexual abuse) in which there is a dispute over whether the child has indeed suffered past harm, the court may have regard only to harm proved to the requisite standard to have happened. Otherwise the purpose for which the threshold criteria were prescribed by Parliament could be defeated in a case where the only evidence that the child was likely to suffer harm in the future was an unproved allegation that he had suffered harm in the past. It would be extraordinary if, in respect of the self-same non-proven allegations, the self-same insufficient evidence could nonetheless be regarded as a sufficient factual basis for satisfying the court there is a real possibility of harm in the future.’
The court will require cogent evidence before making a finding of dishonesty: the very gravity of an allegation of fraud is a circumstance which has to be weighed in the scale in deciding as to the balance of probabilities. ‘Where the matters in issue are facts the standard of proof required in non-criminal proceedings is the preponderance of probability, usually referred to as the balance of probability.’
Lord Nicholls of Birkenhead said: ‘The balance of probability standard means that the 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 stepfather 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 it did occur before, on the balance of probability, its occurrence will be established. Ungoed-Thomas J expressed this neatly in In re Dellow’s Will Trusts  1 WLR 451,455: ‘The more serious the allegation the more cogent is the evidence required to overcome the unlikelihood of what is alleged and thus to prove it.’
This substantially accords with the approach adopted in authorities such as the well known judgment of Morris LJ of Hornal v Neuberger Products Ltd  1 QB 247, 266. This approach also provides a means by which the balance of probabilities standard can accommodate one’s instinctive feeling that even in civil proceedings a court should be more sure before finding serious allegations proved than when deciding less serious or trivial matters. No doubt it is this feeling which prompts judicial comment from time to time that grave issues call for proof to a standard higher than the preponderance of probability.”
Lord Browne-Wilkinson dissenting, said that ‘the facts relevant to an assessment of risk (‘is likely to suffer . . harm’) are not the same as the facts relevant to a decision that harm is in fact being suffered. In order to be satisfied that an event has occurred or is occurring the evidence has to show on balance of probabilities that such event did occur or is occurring. But in order to be satisfied that there is a risk of such an occurrence, the ambit of the relevant facts is in my view wider. The combined effect of a number of factors which suggest that a state of affairs, though not proved to exist, may well exist is the normal basis for the assessment of future risk. To be satisfied of the existence of a risk does not require proof of the occurrence of past historical events but proof of facts which are relevant to the making of a prognosis.’
Lord Goff of Chieveley, Lord Browne-Wilkinson, Lord Mustill, Lord Lloyd of Berwick, Lord Nicholls of Birkenhead
Independent 17-Jan-1996,  AC 563,  1 FLR 80,  UKHL 16,  Fam Law 74,  1 FCR 509,  2 WLR 8,  1 All ER 1
Children Act 1989 31(2)(a)
England and Wales
Cited – Hornal v Neuberger Products Ltd CA 1956
Proof Standard for Misrepresentation
The court was asked what was the standard of proof required to establish the tort of misrepresentation, and it contrasted the different standards of proof applicable in civil and criminal cases.
Held: The standard was the balance of . .
Cited – In re Dellow’s Will Trusts; Lloyd’s Bank v Institute of Cancer Research ChD 1964
Husband and wife, having made mutual wills each leaving their estate to the other, had been found dead in their home from coal gas poisoning. The court asked what was required to displace the presumption that the husband, the older of the two, had . .
Cited – Blyth v Blyth HL 1966
The House was asked as to the standard of proof required to establish that adultery had been condoned under the subsection.
Held: Lord Denning said: ‘In short it comes to this: so far as the grounds for divorce are concerned, the case, like . .
Appeal from – In re H and R (Minors) CA 1994
An allegation had been made by a daughter of sexual abuse against her step-father. Despite his acquittal, the local authority went ahead with an application for a care order. The authority now appealed against a finding that it had not established a . .
Cited – In Re W (Minors) (Wardship: Evidence) CA 1990
A wardship was applied for after allegations of sexual abuse. Butler-Sloss LJ said ‘It is not necessary to make a finding of sexual abuse against a named person in order for the judge to assess the risks to the child of returned to that environment. . .
Cited – H v H (Minor) (Child Abuse: Evidence); Re H (A Minor); Re K (Minors) (Child Abuse: Evidence) CA 1989
An application was made for a wardship after allegations of child abuse.
Held: The test for evidence of child abuse which is appropriate is the ordinary civil standard of balance of probabilities as applied to the facts of each case.
Cited – Davies v Taylor HL 1974
The plaintiff’s husband was killed in a road accident caused by the defendant’s negligence. They were childless. She had deserted him five weeks before his death and thereafter, he learned about her adultery with a fellow employee. He tried to . .
Cited – Dunning v United Liverpool Hospitals’ Board of Governors CA 1973
Mrs D had been treated at hospital, and sought release of her records to establish whether she had any basis for a claim in negligence. The court considered whether an application under section 31 of the 1970 Act for pre-action discovery had been . .
Cited – Preston-Jones v Preston-Jones HL 1951
There are some medical matters of which the court has judicial knowledge, such as the normal period of human gestation. At common law the presumption of legitimacy could only be rebutted by proof beyond reasonable doubt. Proof of adultery in . .
Cited – In re A (A Minor) (Care Proceedings) FD 2-Jan-1993
It was again argued that ‘likely’ meant more probable than not.
Held: The argument was not open to the appellants in the light of Newham London Borough Council. . .
Cited – Newham London Borough Council v Attorney-General CA 1993
The court rejected an argument that ‘likely to suffer significant harm’ in the subsection was to be equated with ‘on the balance of probabilities’. . .
Cited – In re Dellow’s Will Trusts; Lloyd’s Bank v Institute of Cancer Research ChD 1964
Ungoed-Thomas J said: ‘The more serious the allegation the more cogent is the evidence required to overcome the unliklihood of what is alleged and thus to prove it.’ . .
Cited – In re O and N (Minors); In re B (Minors) (Care: Preliminary hearing) HL 3-Apr-2003
The appeals were from conflicting decisions in care applications where one or other or both parents were guilty of lack of care, but there was no evidence to say which was responsible.
Held: The threshold criteria had been met, and the court . .
Cited – In re S (A Child) (Identification: Restrictions on Publication) CA 10-Jul-2003
An order was sought to protect from publicity a child whose mother faced trial for the murder of his brother. The child was now in care.
Held: The court must balance the need to protect the child with the need for freedom of the press. The . .
Cited – In re A (a Child) (Care proceedings: Non-accidental injury) CA 1-Jul-2003
The 11 year old child had been subject to non-accidental injury. The perpetrator could not be identified form among those who had care of him. The Family Court had held the first part of a split trial. The judge had been unable to exclude the . .
Cited – Lord, Regina (on the Application of) v Secretary of State for the Home Department Admn 1-Sep-2003
The claimant was a category A prisoner serving a sentence of life imprisonment for murder. He sought the reasons for his categorisation as a Class A prisoner. Unhappy at the disclosure made, he sought information under the 1998 Act. It was argued . .
Cited – Sadler v The General Medical Council PC 15-Jul-2003
(The Committee on Professional Performance of the GMC) The distinction drawn in Krippendorf between a practitioner’s current competence and past performance was not to be taken too far. The purpose of the assessment was not to punish the . .
Cited – The Chief Constable of Lancashire v Potter Admn 13-Oct-2003
The claimant appealed refusal of an Anti-Social Behaviour order by the magistrates. The respondent was a street prostitute in Preston. The magistrates had declined to aggregate her behaviour with that of others to find that it caused harrassment . .
Cited – Niru Battery Manufacturing Company, Bank Sepah Iran v Milestone Trading Limited CA 23-Oct-2003
The claimant had contracted to purchase lead from some of the defendants. There were delays in payment but when funds were made available they should have been repaid. An incorrect bill of lading was presented. The bill certified that the goods had . .
Cited – DEG-Deutsche Investitions und Entwicklungsgesellschaft mbH v Koshy and Other (No 3); Gwembe Valley Development Co Ltd (in receivership) v Same (No 3) CA 28-Jul-2003
The company sought to recover damages from a director who had acted dishonestly, by concealing a financial interest in a different company which had made loans to the claimant company. He replied that the claim was out of time. At first instance the . .
Cited – Lancashire County Council and Another v B and Others; Lancashire County Council v A HL 16-Mar-2000
A seven month old child had been injured, but it was not possible to establish whether this had taken place whilst with her parents or with a child minder. The Council brought care proceedings also for the minder’s own child B.
Held: Even . .
Cited – Smith New Court Securities Ltd v Scrimgeour Vickers HL 21-Nov-1996
The defendant had made misrepresentations, inducing the claimant to enter into share transactions which he would not otherwise have entered into, and which lost money.
Held: A deceitful wrongdoer is properly liable for all actual damage . .
Cited – A Father (Mr A) v A Mother (Mrs A); Their Two Children (B And C) FD 4-Feb-2004
After a divorce, the father sought a joint residence order for the two young children. The mother alleged sexually inappropriate behaviour by the father. The court found this allegation clearly untrue. The dispute was bitter and protracted. . .
Cited – In re LU (A Child); In re LB (A Child) (Serious Injury: Standard of Proof); re U (A Child) (Department for Education and Skills intervening) CA 14-May-2004
In each case, the other parent appealed care orders where she had been found to have injured her children. In each case the sole evidence was the injury to the child’s health and expert medical evidence. The cases were referred following the . .
Cited – B v Chief Constable of Avon and Somerset Constabulary QBD 5-Apr-2000
The defendant appealed the making of a sex offender order under 1998 Act. The justices had found that the defendant was a sex offender within section 2(1)(a) and that he had acted on a number of occasions in a way which brought him within section . .
Cited – Clingham (formerly C (a minor)) v Royal Borough of Kensington and Chelsea; Regina v Crown Court at Manchester Ex parte McCann and Others HL 17-Oct-2002
The applicants had been made subject of anti-social behaviour orders. They challenged the basis upon which the orders had been made.
Held: The orders had no identifiable consequences which would make the process a criminal one. Civil standards . .
Applied – Re ET (Serious Injuries: Standard of Proof) FD 2003
The court heard a care application in which the baby had sustained skull, brain and other injuries alleged to be at the hands of her parents.
Held: The standard of proof was the civil standard of the balance of probabilities and directed . .
Cited – A Local Authority v S and W and T By her Guardian FD 27-May-2004
A child had died. The father was accused and acquitted of murder by way of shaken baby syndrome. The local authority persisted with an application for care orders for the other children.
Held: ‘I do not claim to have divined truth. I have . .
Cited – Bici and Bici v Ministry of Defence QBD 7-Apr-2004
Claimants sought damages for personal injuries incurred when, in Pristina, Kosovo and during a riot, British soldiers on a UN peacekeeping expedition fired on a car.
Held: The incidents occurred in the course of peace-keeping duties. It was . .
Cited – North Yorkshire County Council v SA and others CA 1-Jul-2003
The child was taken to hospital with injuries which the doctors concluded were non-accidental. The identity of the abuser was in doubt.
Held: The court set out to identify the procedures in cases involving suspected non-accidental injuries . .
Cited – Parks v Clout CA 10-Jun-2003
The claimant said that the respondent had obtained a grant of letters of administration, and taken a share in the estate, by fraudulently destroying the deceased’s last will. He appealed against his claim being struck out as having no realistic . .
Cited – Cream Holdings Limited and others v Banerjee and others HL 14-Oct-2004
On her dismissal from the claimant company, Ms Banerjee took confidential papers revealing misconduct to the local newspaper, which published some. The claimant sought an injunction to prevent any further publication. The defendants argued that the . .
Distinguished – Regina (DJ) v Mental Health Review Tribunal; Regina (AN) v Mental Health Review Tribunal (Northern Region) Admn 11-Apr-2005
Each applicant sought judicial review of the refusal of the tribunal to authorise their release from detention under the 1983 Act, saying that the Tribunal had accepted evidence to a lower standard of proof.
Held: Neither the criminal standard . .
Cited – J v S T (Formerly J) CA 21-Nov-1996
The parties had married, but the male partner was a transsexual, having been born female and having undergone treatment for Gender Identity Dysphoria. After IVF treatment, the couple had a child. As the marriage broke down the truth was revealed in . .
Cited – Raja v Van Hoogstraten ChD 19-Dec-2005
Damages were claimed after claimant alleged involvement by the defendant in the murder of the deceased. The defendant had been tried and acquitted of murder and manslaughter, but the allegation was now pursued. The defendant had since failed to . .
Cited – Attheraces Ltd and Another v British Horse Racing Board and Another ChD 21-Dec-2005
The claimants relayed horse racing events to bookmakers. The respondents collected data about the races and horses. The claimants sought the freedom to use that data, and the defendants asserted a database right to control such use.
Held: BHB . .
Cited – AN, Regina (on the Application of) v Mental Health Review Tribunal (Northern Region) and others CA 21-Dec-2005
The appellant was detained under section 37 of the 1983 Act as a mental patient with a restriction under section 41. He sought his release.
Held: The standard of proof in such applications remained the balance of probabilities, but that . .
Cited – Roiter Zucker (A Firm) v Minai QBD 30-Nov-2005
The defendant resisted payment of her solicitors’ fees saying that they had failed in their duty to her not to exchange contracts without having finance in place to complete the purchase. It was alleged that she had tampered with documents produced . .
Cited – Henry v British Broadcasting Corporation QBD 9-Mar-2006
The claimant said that the defendant had accused her of falsifying hospital waiting statistics. The defendant pleaded justification.
Held: There were stark differences in the evidence given by different witnesses. Nevertheless the evidence . .
Cited – KD v Chief Constable of Hampshire QBD 23-Nov-2005
The claimant’s daughter had made a complaint of rape. She alleged that she was sexually harassed by the investigating police officer, and sought damages also from the defendant, his employer. The officer denied that anything improper or . .
Cited – St Paul Travelers Insurance Co Ltd v Okporuah and others ChD 10-Aug-2006
The first defendant had acquired several properties, and was due to make repayments greatly in excess of his income. A further defendant, his brother, was a solicitor who was known to have been involved in mortgage fraud and was suspected of having . .
Cited – B and B v A County Council CA 21-Nov-2006
The claimants sought damages from the defendant local authority after their identities had been wrongfully revealed to the natural parents of the adoptees leading to a claimed campaign of harassment. The adopters has specifically requested that . .
Cited – Crystal Palace FC (2000) Ltd v Dowie QBD 14-Jun-2007
The parties had agreed a compromise on the leaving of the defendant as manager. The club now said that the agreement had been obtained by fraudulent misrepresentation. He had been released but had said he had not had contact with another London club . .
Cited – Chester City Council and Another v Arriva Plc and others ChD 15-Jun-2007
The claimant council alleged that the defendant had acted to abuse its dominant market position in the provision of bus services in the city.
Held: It was for the claimant to show that the defendant had a dominant position. It had not done so, . .
Cited – MP v Dainty CA 21-Jun-1999
The defendant sought leave to appeal out of time against an award of damages for sexual assault. He had been unable to recover his file of papers from his former solicitors.
Held: The delay had nevertheless been excessive, and the prejudice to . .
Cited – Barlow Clowes International Ltd and Others v Henwood CA 23-May-2008
The receiver appealed against an order finding that the debtor petitioner was not domiciled here when the order was made. The debtor had a domicile of origin in England, but later acquired on in the Isle of Man. He then acquired a home in Mauritius . .
Cited – In re D; Doherty, Re (Northern Ireland); Life Sentence Review Commissioners v D HL 11-Jun-2008
The Sentence Review Commissioners had decided not to order the release of the prisoner, who was serving a life sentence. He had been released on licence from a life sentence and then committed further serious sexual offences against under-age girls . .
Cited – In re B (Children) (Care Proceedings: Standard of Proof) (CAFCASS intervening) HL 11-Jun-2008
Balance of probabilities remains standard of proof
There had been cross allegations of abuse within the family, and concerns by the authorities for the children. The judge had been unable to decide whether the child had been shown to be ‘likely to suffer significant harm’ as a consequence. Having . .
Cited – Birmingham City Council v Shafi and Another CA 30-Oct-2008
The Council appealed a finding that the court did not have jurisdiction to obtain without notice injunctions to control the behaviour of youths said to be creating a disturbance, including restricting their rights to enter certain parts of the city . .
Cited – Lancashire County Council v R (A Minor) and others FD 4-Dec-2008
The local authority sought a care order, alleging serious physical abuse of the child. The mother said that any injuries had been inflicted by the father. The father said that the cause was the mother.
Held: The injuries were not likely to . .
Cited – Webster (the Parents) v Norfolk County Council and others CA 11-Feb-2009
Four brothers and sisters had been adopted after the parents had been found to have abused them. The parents now had expert evidence that the injuries may have been the result of scurvy, and sought leave to appeal.
Held: Leave was refused. . .
Cited – W v Chief Constable of Northumbria Admn 7-Apr-2009
The claimant challenged the decision of the respondent to reveal to his employers details of a conviction in 1987, when he was 15, for sexual assault on a child, and that he was presently on bail pending a decision for a further allegation. He was . .
Cited – Cheltenham Borough Council v Laird QBD 15-Jun-2009
The council sought damages saying that their former chief executive had not disclosed her history of depressive illness when applying for her job.
Held: The replies were not dishonest as the form could have been misconstrued. The claim failed. . .
Cited – Re MA and Others (Children) CA 31-Jul-2009
Children appealed against dismissal of their care proceedings on the basis that the threshold had not been reached. The parents resisted.
Held: It could not be said that the decision so plainly wrong that the judge’s conclusion on the facts . .
Cited – In re S-B (Children) (Care proceedings: Standard of proof) SC 14-Dec-2009
A child was found to have bruising consistent with physical abuse. Either or both parents might have caused it, but the judge felt it likely that only one had, that he was unable to decide which, and that they were not so serious that he had to say . .
Cited – The Solicitor for the Affairs of HM Treasury v Doveton and Another ChD 13-Nov-2008
The claimant requested the revocation of a grant of probate to the defendant. They had suspicions about the will propounded and lodged a caveat which was warned off and the grant completed. In breach of court orders, the defendant had transferred . .
Cited – Wilson and Another v Grainger ChD 4-Dec-2009
The claimants appealed against a decision of the Adjudicator that they had not acquired a piece of their neighbour’s land by adverse possession, on the basis that their use had been by virtue of an oral licence. The judge had found the occupation to . .
Cited – Charles and Others v Fraser ChD 11-Aug-2010
The claimants said that the last will had purported to revoke and earlier but mutual will. They said that the executors should be required to implement the revoked will. The wills had been made by elderly sisters. The wills were in similar terms, . .
Cited – Calzaghe v Warren QBD 20-Jan-2010
The claimant boxer had secured judgement for fight fees from a company operated by the respondent manager and promoter. After the judgment the defendant had put the company into administration. The claimant now sought payment from the defendant . .
Cited – Sharon’s Bakery (Europe) Ltd v Axa Insurance UK Plc and Another ComC 9-Feb-2011
The insurers refused a claim for fire damage alleging that the insured had created a false invoice for use as evidence of title in a separate transaction when seeking finance. . .
Cited – Thornton v Telegraph Media Group Ltd QBD 26-Jul-2011
The claimant alleged defamation and malicious falsehood in an article published and written by the defendants. She complained that she was said to have fabricated an interview with the second defendant for her book. An interview of sorts had now . .
Cited – Bento v The Chief Constable of Bedfordshire Police QBD 1-Jun-2012
The claimant had been convicted of the murder of his girlfriend. On his acquittal on appeal, the police criticised the CPS decision not to retry the claimant, in effect, the claimant now said, continuing the accusation against him, and so defaming . .
Cited – In re J (Children) SC 20-Feb-2013
The mother had been, whilst in a previous relationship, involved in care proceedings after the death from physical abuse of her baby. Whilst being severely critical of her, the court had been unable to identify the author of the child’s death. Now, . .
Cited – In re J (Children) CA 3-Apr-2012
The mother JJ’s first baby had died after physical abuse inflicted either by her or the father. In care proceedings for a later child, the judge concluded ‘T-L’s injuries could have been inflicted by either, or both, of them. Singling out a likely . .
Cited – Braganza v BP Shipping Ltd and Others CA 22-Mar-2013
The claimant widow sued in negligence after the disappearance overboard of her husband from the respondent’s ship. The court had found insufficient evidence to establish the cause of death, either as to negligence as suggested by the claimant, or as . .
Cited – Wallis v Bristol Water Plc Admn 10-Dec-2009
The farmer appealed against a conviction uder the 1999 Regulations saying that the fitting to his water supply pipework in a dairy udder wash were not likely to allow backwash so as to risk contamination of the respondent’s water supply. He said . .
Cited – Ali Haider v Syed ChD 19-Dec-2013
It was alleged that the signature on the deceased’s will was a forgery.
Held: Given the serious nature of the allegation of forgery the legal burden of proving that the signature on the Will was forged rested on the Defendant, and cogent proof . .
Cited – Braganza v BP Shipping Ltd SC 18-Mar-2015
The claimant’s husband had been lost from the defendant’s ship at sea. The defendant had contracted to pay compensation unless the loss was by suicide. They so determined. The court was now asked whether that was a permissible conclusion in the . .
Cited – Whitmar Publications Ltd v Gamage and Others ChD 4-Jul-2013
Whitmar claimed damages for breach of contract; an account of profits; damages for breach of fiduciary duty and/or for infringement of its Database Rights under the Copyright and Rights in Database Regulations 1997; and for a permanent injunction . .
Cited – Re EV (A Child) SC 1-Mar-2017
Appeal from application for permanence order. EV had been in care from her birth. Her parents, each with long standing learning difficulties opposed the order.
Held: The Court allowed the parents’ appeals. The meeting of the threshold test was . .
Lists of cited by and citing cases may be incomplete.
Children, Litigation Practice
Updated: 31 October 2021; Ref: scu.85792