The burden of proof

Family Law|September 18th 2014

The term ‘burden of proof’ is one we have all encountered. It is even the title of a popular novel and a film. But what exactly does it mean?

What the ‘burden of proof ‘means in a legal context is that the person or party that is alleging something has the burden of proving that thing. In other words, it is not for the other party to disprove it. Accordingly, in criminal proceedings it is for the prosecution to prove their case, not for the defendant to disprove it. Similarly, in civil proceedings (such as family proceedings) it is for the party alleging a fact to prove it, not for the other party to disprove it.

There is, however, a difference between the burden of proof in criminal proceedings and the burden of proof in civil proceedings. The difference lies in the standard of proof required. In criminal proceedings the standard is ‘beyond reasonable doubt’. In civil proceedings, however, the standard is lower and is simply ‘on the balance of probabilities’, or ‘more likely than not’. That civil standard applies in family proceedings.

One type of family proceedings that very clearly demonstrates this differing burden of proof is care proceedings. In these the burden falls upon the local authority to show that the child concerned is suffering, or is likely to suffer, significant harm and that the harm, or likelihood of harm, is attributable to one of two things. Either the care given to the child (or likely to be given to him if an order were not made) is not at a standard it would be reasonable to expect a parent to give to the child, or the child is beyond parental control. This is known as the ‘threshold’ – if the threshold is not crossed, then a care order (or a supervision order) cannot be made.

Obviously, it is very often the case in care proceedings that the harm that a child has suffered takes the form of an injury, and the local authority then alleges that that injury was caused deliberately by one or both of the parents. The burden of proof means that it is for the local authority to prove this, not for the parents to disprove it.

Or so it should be. However, things do not always proceed that way, as the case Re M (A Child) (decided by the Court of Appeal in 2012 but only just reported) shows.

Re M concerned a little boy, ‘M’, who was born in July 2011. When he was barely eight weeks old he suffered injuries, comprising bruising to the arms and leg. There was concern that the injuries were non-accidental and the local authority commenced care proceedings. The local authority invited the court to hold a fact-finding inquiry in order to establish whether the threshold had been crossed. That threshold alleged that the injuries had been caused non-accidentally, that the possible perpetrators were the mother and father; and that whoever did not cause the injuries nonetheless failed to protect M.

The judge at first instance found that M had suffered non-accidental injuries and that the parents were both possible perpetrators of those injuries. In the light of that finding, she was satisfied that the threshold has been crossed and that M had suffered significant harm as a result of the injuries inflicted by a parent. The parents appealed.

Lord Justice Ward in the Court of Appeal explained what was required in a case such as this:

“The burden of proof lies on the local authority to prove the case against the parents. The standard of proof is the balance of probabilities, and that means the same in this kind of case as in every other, a simply balance of probability. Suspicion is not proof, and the burden must always remain on the local authority and should not be reversed.”

However, Lord Justice Ward found that the original judge’s view of the case was that as the parents had not come up with an explanation for M’s injuries, there was no ‘benign’ explanation and therefore there must be a ‘malevolent’ explanation. That conclusion did not necessarily follow, he said, unless the burden of proof had been wrongly reversed, and the parents were being required to satisfy the court that this was not a non-accidental injury. He concluded:

“I fear the judge has not properly respected the burden which is on the local authority to demonstrate that these parents had deliberately gone about in some unknown way, with some unknown implement, to inflict these injuries on the baby.”

Accordingly, the appeal was allowed.

Photo by sparkle-motion via Flickr under a Creative Commons licence

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