The standard of proof in family law

Family Law|May 23rd 2015

Disputes between relatives or disputes in care proceedings are a common feature of both private and public family law. Sometimes it can be as straight forward as two divorcing parents who want their children to live with them full time. Other times it can be much more complex.

If a local authority believes that a child’s living conditions put them at risk of physical or psychological harm, they can apply to the courts to have that child taken into care. This blog has covered such cases extensively.

But how do the courts decide that something has actually happened? For example, that an action as drastic as taking a child from their parents has merit?

In care cases, there can often be factual elements in dispute. If a local authority asserts that a parent has been abusive or negligent, that parent may deny it. When that occurs, a fact finding hearing needs to be held. These are rather self-explanatory: the court will make a decision about certain events on which the parties disagree. After those facts have been established, the care proceedings can usually go ahead.

However, family law, like civil law, differs from criminal law when it comes to the procedure and also establishing the necessary standard of proof. Instead of putting a case before a jury of the public to determine if the defendant did the act “beyond all reasonable doubt”, each party must make their case directly to a judge who will apply the “probability” test.

In a recently published judgment, Mr Justice Peter Jackson explained that the “burden of proving a fact rests on the person who asserts it”. Thus, if a local authority makes an accusation against a parent, it is not the parent’s responsibility to prove the accusation false. This is a fundamental part of the legal system as a whole. But the standard applied is not the criminal standard.

But what does count as evidence in family law cases? It can include, but is not limited to, “live, written, direct, hearsay, electronic, photographic, circumstantial, factual, or by way of expert opinion”. Using such available evidence, the judge then makes a decision about what has occurred and applies the probability test.

As Mr Justice Peter Jackson said:

“The standard of proof is the balance of probabilities: Is it more likely than not that the event occurred? Neither the seriousness of the allegation, nor the seriousness of the consequences, nor the inherent probabilities alters this.”

This is what I mean by the probability test. On all matters in dispute during care proceedings, no matter how big or small, the same standard of proof is required to establish what actually happened.

To read Re BR (Proof of Facts) in full, click here.

Photo by Bunches and Bits {Karina} via Flickr

Author: Stowe Family Law

Comments(11)

  1. David Mortimer says:

    False allegations of domestic violence and child abuse are used in the family courts on a daily basis right across the country by resident parents (mothers in the vast majority of cases) to dictate the outcome of contact and residence applications with impunity.

    The family courts view separating couples as two legal components: the ‘resident parent’ and the ‘non-resident parent’ (who does not live with the child). Although these two legal concepts might sound similar they are treated completely differently in the family courts. The only legal right a non-resident parent has is they can apply to the courts for contact. They do not have any other significant or presumptive rights over their children.

    Most people believe they have the right to be presumed innocent until proven guilty in a court of law if they were accused of domestic violence or child abuse given they are criminal offences. However, this principle only applies in criminal trials which have to prove a person is guilty beyond a reasonable doubt. It does not apply in the family courts which are civil proceedings where the best interest test is applied to all decisions which are made on a balance of probability.

    Family court judges do not believe it would be in a child’s best interest to question what the resident parent has said (to see if it is true or not) because they claim do so would undermind their authority as the primary care giver. You might wonder how any decision could ever be reasonably considered as safe and in a child’s best interests if they do not check.

    As a result of being separated from the father, children are placed at higher risk of child abuse, academic difficulties, conduct problems, and involvement with the criminal justice system.

    http://www.ukfamilylawreform.co.uk/falseallegations.htm

    • JamesB says:

      RE False allegations of domestic violence and child abuse are used in the family courts on a daily basis right across the country by resident parents (mothers in the vast majority of cases) to dictate the outcome of contact and residence applications with impunity. I agree with that, they do that then use the status quo argument to get what they want and the fact the bloke doesn’t know which way is up due to dodgy divorce law meaning petition comes in for UB on day 1 also makes the entire system corrupt throughout.

      • JamesB says:

        Shared parenting 50:50 as default where no agreement should be implemented as a measure to stop all the nonsense also.

        Thinking about it, I do not remember any instances of a father abusing his child during contact. I have heard much aggression against contact and pro contact centres and supervised contact for fathers, a kind of grab and run approach encouraged by bad law. I have heard of bad parenting, but tbh its always been mums, although to be fair in over 90% of the cases it ends up being them as single parent, probably as the money follows the children and they naturally want as much as they can. In my life I have seen bad parenting my men and women and on balance do not see one as naturally better or worse.

        I do think perhaps men are more reluctant to do the mud slinging thing that women do in family court though. Seems to me that if they do they get called names and if they don’t they are called names. These courts are more than a little ridiculous with the balance of probabilities and findings of fact they make to suit whatever the judge can do to get out for a nice lunch or home early and who basically doe not care and has little but contempt for those before him as was brought up with silver spoon in mouth with two parents together. The law is pretty much nonsense , the affidavits I read by my ex were ridiculous and without substance and made no sense, its like arguing on the taste of something. Basically the law is if you have a womb you win, and that is ridiculous.

  2. Winston Smith says:

    When the American style Family Court was introduced in Britain c 1992 a different standard of proof was allowed than in the previous magistrates’ court which were used – the Balance of Proof as used in the civ l courts. Also hearsay evidence was allowed. Or as they say, “you are found Probably Guilty of 51 % Guilty”. As anyone realises this produces problems.

    Fact Findings are consequently like a 17th century witch trial, but are subsequently legally “fact” – so you have just been found guilty. They are also almost impossible to appeal in the Family Court – as they are “fact”.

    This is why the Family Court needs abolishing and a return to the previous system must be made.

  3. Name Witheld says:

    Baby taken into care as grandparents failed thr initial assesment but what it said was lots of untruths. We did not read this until after the hearing

  4. Bolchedik says:

    Even in those cases where courts and their management committees permit an element of truth to contradict their business targets, which is usually about two years (just enough time to milk the legal aid provider or the parties of their savings), the sexist and abusive status quo of resident/non-resident parent has had time to nest.

    So much for your ‘standard of proof’ having any beneficial effect for children.

  5. How legal aid cuts are putting extra strain on family courts - StuntFM 97.3 says:

    […] standard of proof or evidence required by the family courts in support of these applications is much lower than that required in criminal proceedings. It is therefore much more likely that an application of […]

  6. EJ says:

    “live, written, direct, hearsay, electronic, photographic, circumstantial, factual, or by way of expert opinion”. causes sooooo many problems. Hearsay, enough said. Anyone can say anything. Circumstantial, I give you the Rorschach ink blot. Electronic and written, is just what someone has written/printed out which could be someone who has never met a single family member and can be a bunch of lies and misinformation (quite often is). Expert opinion, I give you: dailymail.co.uk/debate/article-2114616/Family-courts-incompetent-highly-paid-called-experts-failing-children.html and remember that often the ‘expert’ has not met the family member and is biased through being on the LA gravy train. Factual, there may be events or circumstances which did occur but which are given different context by the fact for instance, that a child’s behaviour could be down to a disorder such as autism spectrum, that has been misrepresented as abuse or neglect. Live? Not sure what’s meant by that, an event occurring right that moment, can still be misrepresented for reasons such as the previous sentence.

    There is a horrific amount of misrepresentation of families with ASD, PDA, CFS/ME, EDS and other invisible disabilities. It’s deliberate of course. It’s all about preventing access to resources and support which LAs and NHS don’t want to fund. Also what happens, is when there is a difficult to diagnose condition, or it’s not even difficult but the doctor has been negligent in diagnosing, they use false allegations to cover-up what they have done wrong. Often it’s false accusations of MSBP/FII, the extraordinarily rare set of behaviours by someone with mental illness or personality disorder, which is being ‘diagnosed’ left, right and centre as we speak.

    A parent cannot win against this of course. If they deny it, they are in denial of abuse and lose their child. If they admit it, they admitted to child abuse and lose their child. At the ‘lowest’ end of the FII scale is a supposedly anxious parent. A label which can be stuck on anyone who is concerned enough to seek help for their child. Especially if the child is misdiagnosed (a goodie is attachment disorder instead of ASD) and they continue to seek the correct diagnosis.

    It’s a nasty nest of vipers, it is widespread. It is a horribly harmful thing to do to families, including the children, who may never recover from the trauma of their parents being wrongly accused and even worse, then being ripped from their innocent parents. So they grow up, if they survive abuse and potential paedophilia in the care system, care leavers who end up as prostitutes, homeless or criminals, into not trusting authority figures and perpetuating the cycle of difficulties and trauma. Especially as if they become parents their own children are often removed as well, ironically because they were in care. It’s a sick society we live in. The corruption in the family courts is massive, many, many social workers are liars and perjurers (many likely have personality disorders and are on a power trip) and the way society is going because of the injustices being perpetrated, the trauma and harm (which is established in research) to innocent families and the shocking outcomes for stolen children, there is no hope for the future.

    Oh and David Mortimer, whilst there may be cases like that, there are very many cases where abusive fathers (particularly in cases of sexual abuse) get custody where mothers report the abuse and the patriarchal court system awards custody to the father, sending the children direct into the hands of the abuser. You only have to look at the Samantha Baldwin case. In fact have a look on this Facebook page: facebook.com/TheWomensCoalition/?fref=pb&hc_location=profile_browser

  7. JamesB says:

    In family court, the man is accused and the woman is excused. I read it on here and remember it and think it tends to be that way in this jurisdiction (E and W). The adversarial nature and feminist laws and balance of probability burden of proof make it a place for men to avoid like the plague.

  8. Godfrey Powell says:

    Does anyone in the UK realize, that the ‘Balance of Probability’ principle underpinning UK Family Law, need be no more reliable than the weather/woman/man saying there’s a 51% chance of rain tomorrow?

  9. Noel Armatrading says:

    My situation is a case where social services having had referral from my14yr old daughter’s old school did a section 47, which has now led to putting child protection plan. In short, this to me was falsified on several levels. The claim is emotional harm born of of more of instergram based issues of threats against my daughter among other minimal issues. There is no family abuse but there is a small history alleging that sge spoke to a teacher of all

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