HOUSE OF LORDS CASE - CARE PROCEEDINGS - STANDARD OF PROOF - REVIEW OF RE H (Minors) (Sexual Abuse: Standard of Proof)  AC 563;  1 FLR 80.
Jo Delahunty QC and Alison Grief of the Garden Court Family Team, appeared in the House of Lords on Monday 19th May 2008 and Tuesday 20th May 2008 in the case of Re B Children. They were instructed by CAFCASS to intervene on behalf of the organisation in this case because of the huge implications for children arising from the Appellants' case who were urging the House of Lords to review Re H and reduce the standard of proof to a 'real possibility' test. At the conclusion of the Appellant's argument on Monday 19th May 2008 the Lords indicated that they were NOT persuaded by their arguments. (See below for the other issues that arise in the case which will be considered and the delivery of judgment).
There were 4 children involved. One of the aspects of the threshold criteria were allegations of sexual abuse made by one of the girls against the step-father. After a 30 day fact finding hearing, Mr Justice Charles concluded that he could not find that it was more likely than not the that the girl was telling the truth in relation to the allegations but nor could he find that the step father was. He could not conclude that there was 'no real possibility' that the abuse had taken place and therefore found that there was a 'real possibility' that it had. Charles J accepted that on the current law the experts who were going to carry out assessments to assist with determining welfare issues at the next stage would have to be instructed on the basis that the abuse had not occurred.
CHARLES J's JUDGMENT
Charles J gave a lengthy judgment in which he set-out his concern that in a situation such as this the real possibility of harm could not be taken into account. He considered that this gave rise to an artificiality about the case and may lead to the child not being properly protected. He raised the fact that in immigration cases a 'real risk' test as to harm is used when considering whether or not it is right to return a person to a country where there are substantial grounds for believing that there is a real risk that they will suffer harm which is proscribed by Article 2 and 3 ECHR. He likened this to the situation where the courts and local authority have identified a real possibility but then do not take steps to protect the child from it and suggested that this may lead to a violation of Articles 2 and/or 3 depending upon the facts of the case.
Charles J further suggested that as the cases of Re O and N and Lancashire CC v B had ruled that where the court is unable to identify who the perpetrator of the established harm is out of two parents, or even two parents and a child minder, the court may proceed on the basis that there is a 'real possibility' that each of the parents is the perpetrator (even though one of them may be wholly innocent) then shouldn't the court also be able to proceed to the welfare stage on the basis that there is a 'real possibility' that the child has suffered harm where the identity of the potential perpetrator is not in issue?
Charles J accepted that in light of the dicta in Re H  AC 563 he was unable to proceed in the way that he wished and that the matters he had raised gave rise to a basis for seeking a review of the law by the House of Lords. The Children's Guardian (CG) wished to see Mr Justice Charles' approach in practice for the children she represented therefore she sought leave to appeal his decision, which he granted.
The approach of Charles J is supported by Ryder J.
COURT OF APPEAL
At the Court of Appeal the Appellant CG conceded that her appeal had to be dismissed at that level given the ruling in Re H and sought leave to appeal to the House of Lords which was granted without the court hearing full argument.
HOUSE OF LORDS
The Lords heard the argument of the Appellant on Monday 19th May 08, and indicated, at the close of the Appellant's argument, that they were not persuaded that there was a basis for review.
CAFCASS strongly opposed the appeal and argued for retention of the current standard of proof. However, it was also argued on behalf of CAFCASS that the 'cogency' principle in Re H, namely, that the more serious the allegation the more cogent must be the evidence to establish that it occurred, and the dicta in relation to 'inherent improbability', had the unintended effect of elevating the standard of proof in serious cases and should be departed from.
THE FINAL OUTCOME OF THE CASE
The Lords will hand down their written Opinions in approximately 6-8 weeks time in which they will set-out their reasons for dismissing the Appellant's appeal and give their views as to the 'cogency' dicta. They will also set-out the way in which experts should be instructed to deal with matters in circumstances where findings have been sought, but not made, and the matter continues through to a welfare hearing on other grounds.
THE CURRENT SITUATION PENDING THE WRITTEN OPINIONS
It is known that some cases have been adjourned pending the outcome of this appeal. It is now clear that the Lords do NOT intend to reduce the standard of proof, which remains the balance of probabilities.