CR1-09-11-25-Session 1_IMX30_1.mxf

Session: am
Session date: 2009 Nov 25

CASE ID: UKSC 2009/0184
Case name: S-B (Children)
Case summary:
Judgment: The Supreme Court unanimously allows the appeal and remits the case for a complete rehearing before a different judge. The judgment of the Court was given by Lady Hale. [48]-[50]
Reasons for the judgment: It is now settled law that the standard of proof in care proceedings is the balance of probabilities, as set out in Re H (Minors) (Sexual Abuse: Standard of Proof) [1996] AC 563 and confirmed in Re B (Children) (Care Proceedings: Standard of Proof) [2008] UKHL 35, [2009] AC 11. [8]-[13] It is clear from the observations of Lord Hoffman and Lady Hale in Re B that the same approach is to be applied to the identification of perpetrators as to any other factual issue in the case. It was incorrect to apply a heightened standard consistent with the gravity of the allegations. [34] There is no obligation for a judge to decide who has caused the harm to the child, as long as that harm is attributable to someone having care of the child, although he should do so if the evidence warrants this. In a split hearing, there may be particular benefits of making such a finding, mainly because it will promote clarity in identifying the future risks to the child and the strategies necessary to protect him from them. [35]-[38] Where a specific perpetrator cannot be identified, a judge should still, where possible, identify a pool of possible perpetrators. The test for doing so is the “likelihood or real possibility” that a particular person was involved. A person does not have to prove their innocence to be left out of account[40]-[43] Where a judge has been unable to identify a perpetrator, it is positively unhelpful to have the sort of indication of percentages that the judge gave in this case. [44] If the judge is able to identify a perpetrator on the balance of probabilities, all the evidence accepted by the judge which is relevant to identifying the risks to the child remains relevant to deciding where his best interests will lie. The court must also be alive to the possibility that the finding who the perpetrator was is wrong and be prepared to revise it in the light of later evidence. [46]-[47] In the circumstances of this case the judge had misdirected herself on the standard of proof in the fact-finding hearing. In those circumstances the case ought to be remitted in whole to a different judge who can decide the matter on the right basis. [48] The decision to remove the second child, who had never been harmed, must also be remitted for rehearing. The judge had held that there was a risk of future harm to him because there was a real possibility that the mother had injured the older child. It was held in Re H that this is not the correct approach: predictions of future harm must be based on proven findings of fact. [49].
Hearing start date: 2009 Oct 25
Hearing end date: 2009 Oct 26