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John Hayes - Farewell to the Cogent Evidence Test: Re B

Date:6 OCT 2008

John Hayes, Barrister, Zenith Chambers, Leeds.

The ruling of the House of Lords in Re H and R (Child Sexual Abuse: Standard of Proof) [1996] 1 FLR 80 (Re H and R) was handed down on 14 December 1995. It has stood unchallenged for over 12 years. In no care case which has reached the House of Lords since that time has any party invited the House of Lords to modify or overrule its earlier ruling. But, finally, in Re B (Children) [2008] UKHL 35, [2008] FLR (forthcoming), an attempt was made to do just that. The point that was raised on appeal was that a determination by the trial judge that there was a 'real possibility' of significant harm having occurred should lead the court to conclude that there was a likelihood of future significant harm and that, insofar as Re H and R stated the contrary, the House of Lords should depart from it. The appeal failed.

Is that the end of the story (and this article)? No, it is not. Because, presented with the opportunity to reconsider Re H and R, the House of Lords set in its sights another key aspect of the ruling: the 'cogent evidence' test. Of all the legal principles which emerged from Re H and R, this is probably the most widely known and most commonly cited test. The essence of the test is this: that although the standard of proof in family proceedings is the balance of probabilities, the more serious the allegation, the more cogent is the evidence needed to prove it. One important consequence of the ruling in Re B is that the Law Lords have bid farewell to that test. As Baroness Hale of Richmond (who gave the lead speech in the House of Lords) stated at para [64], 'It is time for us to loosen its grip and give it its quietus'. This article examines the reasons why the House of Lords took this important step. It proceeds to consider the implications of the ruling for future cases and concludes by raising some fundamental outstanding questions which arise out of the ruling.

For the full article, see September [2008] Family Law journal.

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