Jo Delahunty QC and Alison Grief, of Garden Court's Family Team,
successfully opposed an appeal in the House of Lords that would have
seen the standard of proof in Care proceedings reduced to a 'real possibility'
test. Judgment was handed down on Wednesday 11th June 08 in the case
of In Re B (Children) (FC)  UKHL 35 in which Jo and Alison were
briefed to intervene on behalf of CAFCASS as an organisation. The case
is now the leading case on the standard of proof in Care proceedings
They successfully argued for the retention of the balance of
probabilities test and the need for Judges to make findings of fact,
to that standard, about past events, to underpin findings about likely
future harm. Jo and Alison argued that the child's right to protection
from harm on the one hand had to be balanced against the right to live
within their family, and that a lowering of the standard of proof
would lead to state intervention in the lives of many children where
it was not warranted.
Jo and Alison were the only parties, however, to argue that the dicta
of Lord Nicholls in Re H, to the effect that the more serious the
allegation the more cogent the evidence needed to be to establish it,
had the unintentional effect of inflating the standard of proof and
should be re-stated as the simple balance of probabilities. The House
of Lords unanimously agreed with their submissions and adopted their
wording in full as a suggested pro-forma draft letter of instruction
to experts in cases where findings sought have not been made.