Standard of proof is still civil

In re U (a child) (serious injury: standard of proof); In re B (a child) (serious injury: standard of proof) CA TLR 27 May

Counsel are now submitting that the correct approach to the standard of proof in care proceedings based upon an allegation that a parent had caused serious harm to the child was to treat the distinction between the criminal and civil standards of proof as largely illusory following the decision in R v Cannings [2004] 1 All ER 725; B v Chief Constable of Avon and Somerset Constabulary [2001] 1 WLR 340; R (McCann) v Manchester Crown Court [2001] 1 AC 787 and In re ET (serious injuries: standard of proof) (note) [2003] 2 FLR 1205. Such an approach is mistaken. The standard of proof to be applied in cases under the Children Act 1989 is the balance of probabilities and the test remains that which was laid down in Re H (minors) (sexual abuse: standard of proof) [1996] AC 563 that ‘the more improbable the event, the stronger must be the evidence that it did occur before, on the balance of probabilities, its occurrence will be established’. There was no good reason to leap across a division, on the one hand, between crime and preventative measures to restrain defendants for the benefit of the community and, on the other hand, wholly different considerations of child protection and child welfare. In Re ET too high a standard of proof had been applied. There were, however, considerations emphasised by the judgment in Cannings that were of direct application in care proceedings: