Should it be possible for the state to obtain a care order where there is an unproven, but strong, suspicion that a child may be at risk of abuse? At a time of heightened public revulsion at child abuse there might be considerable support for this, but in Re B (Care Proceedings: Standard of Proof) [2008] UKHL 35, [2008] 2 F.L.R. 141 the House of Lords has unanimously and unequivocally rejected any such notion. In care proceedings relating to two children aged six and nine it was alleged by an elder half-sibling that their father, her stepfather, had sexually abused her, which he denied. The judge took the view that the whole family lacked credibility and that he was quite unable to conclude either that this abuse had or had not taken place, but that both the accusation and denial were “real possibilities”.

The House of Lords had previously ruled in Re H and Others (Minors) (Sexual Abuse: Standard of Proof) [1996] A.C. 563 that it was not open to a court to conclude that a child was at risk of suffering significant harm unless the allegations said to give rise to the risk were proved. The Court of Appeal in Re M and R (Child Abuse: Expert Evidence) [1996] 4 All E.R. 239 had held that proof of allegations was also required at the “welfare stage” of care proceedings when the court determines whether a care order is in the best interests of the child. However, in the so-called “unknown perpetrator” cases (Lancashire County Council v. B [2000] 2 A.C. 147 and Re O and N; Re B [2003] 2 All E.R. 305) the House had held that where it was proved that someone in the care network had already harmed a child, a care order might be made notwithstanding that it was not possible to prove the identity of the perpetrator. Moreover, regard could legitimately be had to the “real possibility” that one or other individual, usually but not invariably a parent, was the perpetrator when deciding whether to make a care order. It was argued for the children's guardian in Re B that this same test of “real possibility” should be applied to cases where there was suspicion, but not proof, of past harm giving rise to an alleged risk of future harm. Otherwise, it was asserted, it would be artificial to proceed on the basis that harm had not occurred when there was a real possibility that it had. This would be just as dangerous to the child as proceeding on the basis that neither parent was the perpetrator when there was a real possibility that either was.

Rejecting this argument, Baroness Hale of Richmond noted that Parliament had in the Children Act 1989 used the terminology of “reasonable cause to suspect” as the trigger for the investigative duties of local authorities and the making of emergency protection orders where an authority is denied access to a child (ss. 47 (1) (b) and 43 (1) (a)) and “reasonable cause to believe” as the basis for other emergency protection orders, police protection and interim care and supervision orders (ss. 44 (1) (a), 46 (1) and 38 (2)). But the language of section 31 (2), which prescribes the statutory “threshold” for final care and supervision orders, was deliberately the language of proof and not the language of suspicion. Thus, to allow a care order to be made on the basis of unsubstantiated suspicions would be to confuse the role of local authorities in assessing and managing risk with that of the courts. The courts' role was to decide where the truth lay, what the legal consequences should be and to prevent unwarranted state intervention in family life however well intentioned that might be.

Given that proof of allegations is then required for a final order, what standard of proof should apply? Here there had been considerable confusion resulting from a passage in the speech of Lord Nicholls in Re H where he said: “the court will have in mind as a factor, to whatever extent is appropriate in the particular case, that the more serious the allegation the less likely it is that the event occurred and, hence, the stronger should be the evidence before the court concludes that the allegation is established on the balance of probabilities”. The words italicised for emphasis, were not italicised by Lord Nicholls himself but were picked out for special emphasis by Lord Hoffmann and Baroness Hale (with whom Lord Scott, Lord Rodger and Lord Walker agreed) in Re B to support the view that Lord Nicholls had not intended to lay down any rule of law when he said what he did. That is not however the interpretation which had been put on this passage by others. There was a widespread view that Lord Nicholls had introduced into care proceedings a “heightened civil standard” of proof which might not be greatly distinguishable, if at all, from the criminal standard. In Re B the House emphatically rejected this notion and established beyond any doubt that the normal civil standard of balance of probabilities applies and that there is no necessary correlation between seriousness and probability. So far as the latter is concerned, courts should simply have regard to inherent probabilities as part of their normal function in evaluating evidence and adjudicating.

There will be general rejoicing in the academic and child protection communities at the demise of the so-called “cogent evidence rule”. There never was any sense in the view that because something is serious it is inherently unlikely. Child abuse in its many manifestations is always serious but, as the recent reports by Ofsted in the wake of the Baby P tragedy reveal all too clearly, it is not rare in our society but rife.

There will be continued unease, however, that children suspected of being at risk, but not proved to have been harmed, will remain unprotected. Baroness Hale is of course right to remind us that “taking a child away from her family is a momentous step, not only for her, but for her whole family, and for the local authority which does so”. It is also true that decisions on the allocation of parental responsibility ought not to be taken on the basis of unsubstantiated suspicions. But not all compulsory intervention does, or should, involve these things. Surely our attention ought now to be directed towards providing a mechanism which could allow the local authority to monitor the home situation of a child in the medium and long-term. Emergency, assessment and interim orders can do this in the short-term but they run out. Greater use of supervision orders is not the answer. The same statutory threshold as for care must be crossed (though this could usefully be revisited), they lack teeth and, above all, they are dependent on the co-operation of parents – the very thing likely to be lacking where children are most at risk. Is it not time for a new long-term compulsory order, based on “reasonable grounds to suspect” which could allow the authority to go on monitoring the situation but which would not involve it acquiring parental responsibility and would not authorise removal of the child from home? Any such development would be for Parliament and not the courts since it would require amending legislation but such an innovation would bear the hallmark of proportionality required by human rights obligations.

Re B and the other House of Lords decisions bristle with technicalities. But we should not be deceived by this. They are all concerned with where precisely the balance should be struck, with one eye on human rights, between child protection and family autonomy. It is perhaps reasonable for the courts to conclude that compulsory action is more readily justifiable where a child has already been harmed than where the case is based entirely on future risk and this in essence is the result of these decisions. But a society which is seriously concerned to protect vulnerable children (and almost everyone would claim to be), must not set the bar so high that child protection agencies are discouraged from taking action where serious suspicions exist. The introduction of huge increases in court fees for care proceedings, an emphasis on diversion from such proceedings and the unrealistic setting of lawyers' fees in public law children cases is not the way to go about things. Providing family support for children at home is expensive. So is taking them into care. What priority then should be attached to child protection alongside the many competing demands on the public purse? This is a question not simply for central and local government, lawyers, the courts and others directly concerned in child protection. It is for society as a whole.