District Judge Andrew Grand
In his NYAS lecture in November 2007, which formed the basis of his article 'The Risk Fallacy: A Tale of Two Thresholds' in January  Fam Law 29, Mr Justice Ryder persuasively argued the case to re-visit the conclusions in Re H and R (Sexual Abuse: Standard of Proof)  AC 563,  1 FLR 80. The House of Lords looked again at those conclusions in Re B (Children)  UKHL 35,  2 FLR 141 but declined to depart from what Lord Hoffman described as the law's binary system where a fact is either proved or it is not (although their Lordships provided very welcome clarification of the standard of proof to be applied to the exercise of fact-finding).
The minority in Re H and R had been prepared to permit the court to find that there was a real possibility that abuse had occurred, in circumstances where it was not possible to make a finding on the balance of probabilities that it had; and to find that this meant there was a real possibility (a likelihood) that the child would suffer significant harm in the future. They rejected the proposition that future likelihood could only be based upon proved past facts. When the issue was looked at again in Re B in 2008 the House was not divided (as it had been in Re H and R) but unanimous that facts are either proved or they are not, and that the court can only base its assessment of future likelihood on such proved facts. Lord Hoffman, at the outset of his opinion, states:
'If a legal rule requires a fact to be proved (a fact in issue"), a judge or jury must decide whether or not it happened. There is no room for a finding that it might have happened.'
Charles J, in the case which was before their Lordships, having heard extensive evidence over 29 days, said that he was unable to come to a reasoned conclusion that Mr B had sexually abused R but he was equally unable to come to a reasoned conclusion that he had not. He concluded instead that there was a real possibility that Mr B had sexually abused R. Baroness Hale of Richmond, somewhat disparagingly, opined: 'My Lords, if the judiciary in this country regularly found themselves in this state of mind, our civil and family justice systems would rapidly grind to a halt.'
To read the rest of this article, see June  Family Law journal.
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