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Burden of Proof in Family Cases

04 Jul 2008, 14:10 by Joseph Neville

Labels: burden-of-proof, house-of-lords, judgement

The House of Lords has handed down an important judgment, Re B, in relation to the burden of proof in family cases, and care proceedings in particular. Findings on issues of fact connected to a particular family are very important to the final outcome of care proceedings. In civil proceedings any fact will be tried according to the "balance of probabilities" - this can be contrasted with the standard of proof in criminal proceedings: "beyond reasonable doubt."

Care cases are civil, so the balance of probabilities applies. Such is the seriousness of some allegations however, for example sexual abuse of children, that following the case of Re H some had thought that discharge of the burden of proof required more "cogent" evidence than usual before a finding would be made. The House of Lords has stated that this rule is untrue - the usual standard of proof applies.

This means that where there is insufficient evidence of past harm for the court to find that the child concerned is suffering, or is likely to suffer, significant harm, then the allegations remain unproven, and the court cannot proceed to make any orders.

This point emphasised that where facts were in issue, the court must reach a conclusion. As Lord Hoffman stated:

"The law operates a binary system in which the only values are 0 and 1. The fact either happened or it did not. If the tribunal is left in doubt, the doubt is resolved by a rule that one party or the other carries the burden of proof. If the party who bears the burden of proof fails to discharge it, a value of 0 is returned and the fact is treated as not having happened. If he does discharge it, a value of 1 is returned and the fact is treated as having happened."

New Walk Chambers has a number of senior family practitioners who appear in care cases across the Midlands, including Leicester, Birmingham, Nottingham, Northampton, Coventry, and the smaller county courts.

Written by Joseph Neville, Barrister at New Walk Chambers, specialising in Family Law.

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