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(House of Lords; Lord Hoffmann, Lord Scott of Foscote, Lord Rodger of Earlsfery, Lord Walker of Gestingthorpe and Baroness Hale of Richmond; 11 June 2008)
The Lords declined to introduce a test of a 'real possibility' of harm into care proceedings. To allow the courts to make decisions about the allocation of parental responsibility for children on the basis of unproven allegations and unsubstantiated suspicions would be to deny them their essential role in protecting both children and families from the intervention of the state, however well intentioned; it would also confuse the role of the local authority, in assessing and managing risk, in planning for the child and deciding what action to initiate, with the role of the court in deciding where the truth lay and what the legal consequences should be. There was only one civil standard of proof, and that was proof that the fact in issue more probably occurred than not. Neither the seriousness of the allegation nor the seriousness of the consequences should make any difference to the standard of proof to be applied in determining the facts. There was no 'heightened civil standard' and no legal rule that 'the more serious the allegation, the more cogent the evidence needed to prove it'; common sense, not law, required that in deciding whether it was more likely than not that something had taken place, regard should be had to inherent probabilities. If a judge found it more likely than not that something did take place, then it was treated as having taken place; if he found it more likely than not that it did not take place, then it was treated as not having taken place. The judge was not allowed to sit on the fence. The purpose of splitting a care hearing was not to split the two questions, (i) whether the threshold had been crossed and (ii) what would be best for the child, but in order to separate out those factual issues capable of swift resolution so that the welfare professionals had a firm foundation of fact upon which to base their assessments of family relationships and parenting ability. There was no point in splitting the issues if the facts could not be determined relatively quickly, still less if it was unlikely to result in clear cut findings to help the professionals in their work.
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