The standard of proof in family law

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.

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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.