Kirsten Maclean, Elizabeth Hall - The Standard of Proof in Children Cases: Re B

28 AUG 2008

Kirsten Maclean, Lawyer, Cafcass Legal and Elizabeth Hall Head of Safeguarding, Cafcass.
There can be little doubt about it - the frisson caused by the decision of the House of Lords in Re H and R (Minors) (Sexual Abuse: Standard of Proof) [1996] 1 FLR 80 has continued to reverberate over the intervening 12 years or so, both with social workers and with other professionals working in the field of child protection. On 11 June 2008, the House of Lords took the opportunity to review it when the case of Re B (Children) [2008] UKHL 35, [2008] FLR (forthcoming) came before them. The decision is a very welcome one.

Since 1996 it has been generally accepted that in children's cases serious allegations are to be tested by an enhanced standard of proof. This has given rise to the question of whether, when children have been placed on the child protection register or removed from home, it has been for reasons which may not necessarily be the prime concern of social workers. Instead, it has been suspected that although protective measures may for the most part still have been taken, the reasons have been chosen because they are perceived as being likely to present less of an evidential problem than perhaps the prime safeguarding concern would present. A survey of Cafcass practitioners showed that the experience of practitioners is that it has become increasingly difficult for allegations of sexual abuse or serious physical abuse to be proved, with the result that those allegations have not always been brought to court to be tested by fact-finding hearings. Cafcass practitioners have been concerned that the problem was increased by the judicial approach taken since Re H and R.

For the full article, see August [2008] Family Law journal.

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