#FamLaw: Should There Be a Third Standard of Proof in Care Cases?
What is the standard of proof?
The standard of proof by which it is determined whether the threshold in section 31(2) of the Children Act 1989 has been met is the balance of probabilities. This was laid down in Re H and R (Child Sexual Abuse: Standard Of Proof)  1 FLR 80. In the years following that case it was suggested by some that there should apply in some cases a “heightened” standard of proof. Re B (Children) (Care Proceedings: Standard of Proof)  UKHL 35, re-affirmed in Re S-B (Children)  UKSC 17, confirmed that the standard was the balance of probabilities.
B (Children)  UKHL 35
Appeal arising from findings that a High Court judge could not determine whether or not the children were at risk of harm. Appeal dismissed.
The appeal was brought by counsel for the children’s guardian on the basis that, in the light of the judge’s findings the “artificiality of proceeding on the basis that such harm did not happen at all, when there is a real possibility that it did, is just as irresponsible and dangerous as proceeding on the basis that neither parent was the perpetrator”. As a result he called for a reconsideration of the Lords decision of In Re H and to overrule In Re M & R as they lead to illogical results (familylawweek.co.uk).