‘The balance of probabilities’ is the standard of proof used in all civil court proceedings, so includes care proceedings.
The other standard of proof we use in criminal cases is ‘beyond a reasonable doubt’ which is a higher standard due to the very serious consequences that can follow a criminal conviction. Some people are unhappy that the lower civil standard of proof is used to make findings about parents who may have their children taken into care, particularly if the court is worried about significant harm happening in the future.
We agree that if the State takes your child away, that is a very serious and significant interference in the family life of both parent and child. However, the consequences for children of being left in situations that harm them are also very serious and we need to consider that if we used ‘beyond reasonable doubt’ as the standard of proof in family proceedings, this could lead to many children being left in dangerous or abusive situations because we could not always prove they were at risk using such a high standard of proof, or it may take much longer to find and gather together the evidence to have a court hearing.
So, in care proceedings, the Judge has to be satisfied that the evidence to show that your child is suffering or is at risk of suffering significant harm has been proved on the balance of probabilities. This phrase has been explained to mean ‘more likely than not, or ‘ ‘more than 50/50’.
For a while, the courts did approach the standard of proof for serious allegations in family cases as being similar to the standard in criminal cases, as it was felt that such serious allegations with such serious consequences required a high level of proof.
The courts however from 2004 onwards decided to move away from this approach and confirmed it by a decision in the House of Lords in 2008 (The House of Lords is now called the Supreme Court).
Baronness Hale said at paragraph 69 of her judgment:
There are some proceedings, though civil in form, whose nature is such that it is appropriate to apply the criminal standard of proof. Divorce proceedings in the olden days of the matrimonial “offence” may have been another example (see Bater v Bater  P 35). But care proceedings are not of that nature. They are not there to punish or to deter anyone. The consequences of breaking a care order are not penal. Care proceedings are there to protect a child from harm. The consequences for the child of getting it wrong are equally serious either way.
Baronness Hale stated ‘loud and clear’ that the standard of proof in care proceedings 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. […] It may be unlikely that any person looking after a baby would take him by the wrist and swing him against the wall, causing multiple fractures and other injuries. But once the evidence is clear that that is indeed what has happened to the child, it ceases to be improbable. Some-one looking after the child at the relevant time must have done it. The inherent improbability of the event has no relevance to deciding who that was. The simple balance of probabilities test should be applied.
Baker J discussed the issue of the burden and standard of proof in 2013:
In English law, the House of Lords has now concluded definitively that in order to determine whether an event has happened it has to be proved by the person making the allegation on the simple balance of probabilities. Where the law establishes a threshold based on likelihood, for example that a child is likely to suffer significant harm as a result of the care he or she would be likely to receive not being what it would be reasonable for a parent to give, the House of Lords has also concluded that such a likelihood, meaning a real possibility, can only be established on the basis of established facts proved on a balance of probabilities.
There are those who considered that to require the proof of past harm was a misreading of the intention of Parliament, and that a system devoted to child protection should not imposed such a high hurdle. It was argued, and in some quarters is still argued, that since we would not insist on proof before protecting our own children from risk, we should adopt the same cautious approach when protecting other, more vulnerable children. The House of Lords has of course firmly rejected that approach, which of course would at one extreme involve removing children from their parents on the basis of mere suspicion.
- There is an interesting article about the importance of ‘beyond reasonable doubt’ by BarristerBlogger;
- Here is a useful article by Simon Goddard which discusses in more detail the standard of proof generally, and with particular reference to cases involving suspected non – accidental injury.
- We discuss how to get the best evidence to make the right decisions for children in our post ‘Achieving Best Evidence in Children Act cases’.
- There is concern that the ‘balance of probabilities’ standard is structurally unfair – can a ‘fact’ really be found on 51% certainty? See this article from The Justice Gap, commenting on the tragic case of Poppi Worthington.
- Lucy Reed discusses on Pink Tape her unease that barristers facing a disciplinary charge benefit from ‘beyond reasonable doubt’ but parents will lose their children on the lesser civil standard.