B (Children), Re

Factual and Procedural Background

The case concerns public-law care proceedings brought under section 31 of the Children Act 1989. Two siblings (“Child 1”, aged nine, and “Child 2”, aged six) became the subject of interim care orders after allegations of physical and sexual abuse arose within their family. The children had been living with “Mother,” together with two half-siblings, until “Father” left the family home. Subsequent concerns about alleged sexualised behaviour and intra-family violence prompted involvement by social services and police.

Following conflicting allegations—most significantly a sexual-abuse complaint made by the teenage half-sister against Father—the local authority commenced care proceedings. A 29-day fact-finding hearing before Judge Charles concluded with extensive findings of domestic hostility and emotional harm, but the judge remained unable to decide on the balance of probabilities whether the alleged sexual abuse had occurred. He therefore recorded only a “real possibility” that Father had abused the teenage child.

The children’s guardian (“Appellant”), supported by the local authority and Mother, appealed in an effort to replace the balance-of-probabilities approach with a lower “real possibility” test for establishing the statutory threshold. Father (“Respondent”) and the national children’s advisory body opposed the change. The Court of Appeal, being bound by precedent, dismissed the appeal but certified a point of public importance. The present judgment is the decision of the final appellate court, constituted by Judge Hale, Judge Hoffmann and three other Law Lords.

Legal Issues Presented

1. Whether, for the purpose of section 31(2)(a) of the Children Act 1989, a court may rely on a “real possibility” that a past event occurred when determining that a child “is likely to suffer significant harm,” or whether the past fact must be proved on the balance of probabilities.
2. Whether there exists, in civil child-protection proceedings, anything other than a single civil standard of proof.
3. Whether unproven allegations may nevertheless be considered at the welfare (disposal) stage under section 1 of the 1989 Act.

Arguments of the Parties

Appellant's Arguments

• The current rule (Re H) produces illogical outcomes when contrasted with cases such as Lancashire County Council v B and Re O, where a parent may lose a child on a mere “possibility” of perpetration.
• Permitting reliance on a “real possibility” better protects children because it lowers the evidential hurdle where risk is grave.
• The court should also take account of unproven allegations at the welfare stage to ensure comprehensive risk assessment.

Respondent Father's Arguments

• The threshold criteria protect both family autonomy and children; lowering them would allow state intervention on the basis of unsubstantiated suspicion.
• Re H correctly requires proved facts as the foundation for predicting future harm; any change would effectively reverse the burden of proof.
• Maintaining a single civil standard ensures clarity and consistency and is compatible with Articles 2, 3 and 8 of the European Convention on Human Rights.

Intervener’s (Advisory Body) Position

• Supported Respondent, stressing that a single, simple balance-of-probabilities test should apply; the notion of a “heightened” civil standard creates confusion.
• Proposed revised wording for letters of instruction to experts, reflecting that unproven allegations cannot ground findings of current risk.

Table of Precedents Cited

Court's Reasoning and Analysis

1. Reaffirmation of Re H: Judge Hale, writing the principal opinion, held that section 31(2)(a) requires proven facts—not mere suspicions—to underwrite any prediction that a child is “likely to suffer significant harm.”

2. Single Civil Standard: The House unanimously announced that there is only one civil standard of proof—balance of probabilities. References in earlier dicta to a “flexible” or “heightened” civil standard were identified as sources of confusion. Seriousness of the allegation or consequences does not elevate the standard; inherent improbability is simply an evidential factor.

3. Protection Function of the Threshold: Allowing unproven allegations to satisfy the threshold would reverse the burden of proof and undermine the statutory safeguard intended to shield families from unjustified state intervention.

4. Interaction with Later Authorities: The court harmonised Lancashire v B and Re O with Re H, explaining that those cases involved proven harm with an unknown perpetrator, whereas the present appeal concerns unproven harm.

5. Human-Rights Compatibility: The balance-of-probabilities requirement respects Article 8 by ensuring that interferences with family life are founded on “relevant and sufficient” reasons, and it does not hinder the state’s Article 2 or 3 obligations because authorities may act earlier on reasonable suspicion via interim measures.

6. Practical Guidance: The court endorsed a revised standard letter to experts clarifying that unproved allegations cannot be treated as current risk. It further stressed that, where fact-finding hearings are split, the same judge should conduct both stages.

Holding and Implications

APPEAL DISMISSED.

Direct Consequences: The “real possibility” approach was rejected; the case is remitted for completion before the original trial judge, who is instructed to apply the balance-of-probabilities test and to instruct experts accordingly.

Broader Implications: The judgment settles longstanding uncertainty about the standard of proof in child-protection cases, confirming that (1) only proven facts can satisfy the statutory threshold, and (2) the civil standard is uniform across all civil proceedings. While no new doctrine is created, the decision provides authoritative clarification likely to influence practice in family courts across the jurisdiction.