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H & Ors (minors), Re
Factual and Procedural Background
The case concerns four sisters. Child 1, aged 15, alleged that her step-father (“Respondent”) had sexually abused her since she was about seven. The Respondent was tried for rape and acquitted by a jury after a brief deliberation. Despite the acquittal, the local authority (“Appellant”) applied under the Children Act 1989 for care orders in respect of the three younger sisters (Child 2, Child 3 and Child 4).
The applications were heard by Judge Davidson over seven days. The judge was unconvinced by the Respondents’ testimony but held that the allegations against the Respondent were not proved to the “requisite high standard” and therefore refused the care orders. The Court of Appeal (by majority) affirmed that decision. The Appellant obtained leave to appeal to the House of Lords.
Legal Issues Presented
- The meaning of “likely” in section 31(2)(a) of the Children Act 1989: does it require probability (“more likely than not”) or merely a real and substantial possibility of significant harm?
- The correct standard of proof for establishing facts relevant to section 31(2): ordinary civil balance of probabilities, a heightened civil standard, or something in between?
- Whether, when the local authority relies solely on an allegation of past abuse, the court must first find that the abuse actually occurred before it can find that the child is “likely to suffer” significant harm in the future.
Arguments of the Parties
Appellant's Arguments
- “Likely” should be interpreted as a real or substantial risk, not “more probable than not,” consistent with prior authority.
- The standard of proof is the ordinary civil standard; elevating it would undermine child-protection aims by making the threshold harder to surmount where allegations are serious but evidence scarce.
- The court may find future risk even if past abuse is unproven, provided there is evidence creating a real possibility of harm.
Respondents' Arguments
- “Likely” means probable; therefore the Appellant had to show that harm was more probable than not.
- Because the Appellant presented a single allegation of past sexual abuse, the court must first be satisfied, on the balance of probabilities, that the abuse took place; absent such a finding, the threshold is not met.
- The judge applied the correct (heightened) standard when rejecting the allegation, and his decision should stand.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Davies v. Taylor [1974] A.C. 207 | “Likely” can mean either “probable” or “may well happen.” | Cited to show that statutory context determines which meaning applies. |
| Dunning v. United Liverpool Hospitals’ Board [1973] 1 W.L.R. 586 | Interpretation of “likely” as “may well be.” | Supports construction of “likely” as real possibility. |
| Newham LBC v. A.G. [1993] 1 F.L.R. 281 | Held that “likely to suffer” in s.31(2) means real, substantial risk. | Up‐held by majority; criticised by Respondents. |
| Blyth v. Blyth [1966] A.C. 643 | Word “satisfied” is neutral; burden and standard must be determined separately. | Used to rebut argument that both limbs of s.31(2) require identical proof. |
| Dellow’s Will Trusts [1964] 1 W.L.R. 451 | More serious allegations demand more cogent evidence even under civil standard. | Explained flexibility within balance-of-probabilities test. |
| Hornal v. Neuberger Products [1957] 1 Q.B. 247 | Civil standard remains balance of probabilities regardless of gravity. | Relied upon in reaffirming single civil standard. |
| In re M (A Minor) (Care Orders: Threshold) [1994] 2 A.C. 424 | Relevant date for assessing existing harm is date of application or protective order. | Cited while analysing first limb of s.31(2)(a). |
| In re W (Minors) (Sexual Abuse: Standard of Proof) [1994] 1 F.L.R. 419 | Earlier suggestion of heightened civil standard in abuse cases. | Majority disapproved; dissent favoured. |
| Preston-Jones v. Preston-Jones [1951] A.C. 391 | Legitimacy can be rebutted on simple balance of probabilities. | Used by majority to illustrate legislative preference for ordinary civil standard. |
| H v. H (Minor) (Child Abuse: Evidence) [1990] Fam 86 | Assessment of future risk need not await proof of past abuse in wardship. | Dissent cited to support single-stage, risk-based analysis. |
Court's Reasoning and Analysis
Majority (Judges Nicholls, Mustill, and one additional Law Lord)
- Interpreted “likely” in section 31(2)(a) as a real possibility, not probability, aligning with child-protection objectives.
- Confirmed that the burden of proof rests on the Appellant and the standard is the ordinary civil balance of probabilities; seriousness of the allegation merely calls for more cogent evidence, not a higher standard.
- Emphasised that courts must base findings on proved facts; unresolved suspicions or doubts cannot satisfy either limb of section 31(2).
- Distinguished interim measures (which rely on “reasonable cause to believe”) from final care orders that require the court to be “satisfied.”
- Because the alleged abuse was not proved, no factual foundation remained to establish a real possibility of future harm to the younger children; therefore the statutory threshold was not crossed.
Dissents (Judges Browne-Wilkinson and Lloyd)
- Acknowledged the same burden and standard but argued that evidence insufficient to prove past abuse can nevertheless establish a risk of abuse.
- Advocated a single-stage inquiry: whether, on all evidence (including unproven allegations), there is a real possibility of future harm.
- Warned that requiring proof of past abuse before protecting at-risk children would render the Act “unworkable” and leave courts powerless in many serious but unprovable cases.
Holding and Implications
HOLDING: APPEAL DISMISSED
The House of Lords, by a 3-2 majority, upheld the lower courts’ refusal to make care orders. Absent proved facts showing that the children are suffering or are likely to suffer significant harm, the statutory threshold of section 31(2) was not met.
Implications: The decision affirms that (1) “likely” in child-care proceedings denotes a real, non-trivial possibility of harm; (2) the ordinary civil standard of proof applies, with flexibility for gravity; and (3) unproven allegations, however concerning, cannot alone justify a final care or supervision order. Local authorities must therefore assemble affirmative evidence of risk, while parents retain protection from state intervention based solely on suspicion. The ruling sets no new legal precedent but clarifies the interpretation of section 31(2) for future child-protection cases.
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