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In the U.K., the standard of proof in care proceedings is put this way:
The leading case on the interpretation of these conditions is the decision of the
House of Lords in In re H (Minors) (Sexual Abuse: Standard of Proof) [1996]
AC 563. Three propositions were established which have not been questioned
since. First, it is not enough that the court suspects that a child may have suffered
significant harm or that there was a real possibility that he did. If the case is based
on actual harm, the court must be satisfied on the balance of probabilities that
the child was actually harmed. Second, if the case is based on the likelihood of
future harm, the court must be satisfied on the balance of probabilities that the
facts upon which that prediction was based did actually happen. It is not enough
that they may have done so or that there was a real possibility that they did. Third,
however, if the case is based on the likelihood of future harm, the court does not
have to be satisfied that such harm is more likely than not to happen. It is enough
that there is “a real possibility, a possibility that cannot sensibly be ignored having
regard to the nature and gravity of the feared harm in the particular case”: per
Lord Nicholls of Birkenhead, at p 585 f.46
In Re S-B, the first child was found with non-accidental bruising to his arms and
face and was placed in foster care. The mother subsequently gave birth to the second
child who was also placed with the same foster carer as his brother, although he had
never been harmed. The local authority applied for care and placement for adoption
orders for both children. The judge made the care and placement for adoption orders. She indicated that there was a high index of suspicion in relation to the father as the
perpetrator and although there was no such index in relation to the mother, she
could not be ruled out. The mother’s appeal to the Court of Appeal was dismissed.
However, the Supreme Court allowed the appeal and sent the case back to be decided
afresh. The highest court held that the fact-finding judge had misdirected herself
on the standard of proof. The judge did not in terms ask herself whether she could
identify the perpetrator and later indicated she could not decide. Further, the judge
found the threshold crossed in relation to the second child on the basis that there was a real possibility that the mother had injured the first child; this was not a permissible
approach.
B. New Zealand
In NewZealand, the Children,Young Persons and Their Families Act [CYPFA (NZ)]47
provides for the definition of a child or young person in need of care or protection.
Section 14 provides:
A child or young person is in need of care or protection…if
(a) the child or young person is being, or is likely to be, harmed (whether physically
or emotionally or sexually), illtreated, abused, or seriously deprived;
or
(b) the child’s or young person’s development or physical or mental or emotional
wellbeing is being, or is likely to be, impaired or neglected, and that impairment
or neglect is, or is likely to be, serious and avoidable… [emphasis
added]
The provisions, like those in the U.K. and Singapore, are also phrased broadly
in terms of the scope of injury justifying state intervention. However, the statute
specifically provides that there must be serious and avoidable impairment or neglect
in cases involving impairment or neglect of the child’s development, or physical or
mental or emotional wellbeing. But where there is harm, ill-treatment or abuse,
there appears to be an assumption that such physical or sexual character of injury is
significant enough not to call for the same requirements.
Section 13 of the CYPFA (NZ) sets out the principles on the care and protection
of children which the court must be guided by; section 13(d) states
the principle that a child or young person should be removed from his or her
family…and family group only if there is a serious risk of harm to the child or
young person[.]
If the risk of ill-treatment is based on ill-treatment in the past, then ill-treatment
in the past must first be proved. If the risk is not based on past abuse of the child
in question, but, for instance, on the fact that a parent had been convicted of sexual
offences against other children, then the risk of sexual abuse to the child in question
could be assessed by proof of the fact of the convictions and facts relevant to the risk
of reoffending.48
C. Australia
A number of states in Australia adopt the model of extending abuse to include impairment
of the psychological or emotional wellbeing of a child and requiring significant harm. The Queensland Child Protection Act 1999 [CPA 1999 (Qld)]49 provides that “harm” warranting state protection is “any detrimental effect of a significant nature
on the child’s physical, psychological or emotional wellbeing”.50 It is “immaterial
how the harm is caused”,51 and harm can be caused by physical, psychological
or emotional abuse or neglect; or sexual abuse or exploitation.52 However, there
must be a detrimental effect of a significant nature. The Western Australia Children
and Community Services Act 200453 and South Australia Children’s Protection Act
199354 are phrased similarly to the CPA 1999 (Qld).
The state of Victoria’s Children, Youth and Families Act 200555 provides for circumstances
in which a child is in need of protection: when the child has suffered,
or is likely to suffer, “significant harm” as a result of “physical injury”,56 “sexual
abuse”;57 or the child has suffered, or is likely to suffer, “emotional or psychological
harm of such a kind that the child’s emotional or intellectual development
is, or is likely to be, significantly damaged”;58 or the child’s physical development
or health has been, or is likely to be, “significantly harmed”;59 and the child’s
parents have not protected, or are unlikely to protect, the child from harm of that
type.
The New South Wales Children and Young Persons (Care and Protection) Act
199860 provides that a child must be “at risk of significant harm” before he or she
becomes eligible for state intervention.61 This includes the risk that the child is being
“physically or sexually abused or ill-treated”,62 or where the child’s household has
incidents of domestic violence and the child is at risk of suffering “serious physical
or psychological harm”.63
The models in these jurisdictions are child-focused in that the outcome of the
parent’s behaviour on the child determines intervention measures. The intention
of the offending parent or caregiver is more relevant for the imposition of criminal
liability but less relevant for care orders. The types of harm are widely defined,
but harm must be significant before intervention is justified. In the U.K. and
Australian provisions, generally all forms of harm—physical, sexual, emotional
or developmental harm—must be significant or serious before intervention is justified. In New Zealand, harm that arises from impairment or neglect of the child’s
development or physical or mental or emotional wellbeing must be serious and
avoidable. |
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43. Ibid. at 263, Booth J.
44. [1996] A.C. 563 [Re H].
45. See ibid. at 585, Lord Nicholls. This was adopted in Re S-B, supra note 18 at para. 8.
46. Re S-B, ibid., Baroness Hale of Richmond.
47. (N.Z.), 1989/24 [CYPFA (NZ)].
48. See Re C [2004] N.Z.L.R. 49 where the court found that the sexual offender released from prison had
a high risk of reoffending, having failed to engage in a treatment programme while in prison while
the child was unable to protect herself, having had no effective father figure in her life and was thus
particularly susceptible to the charms of the ex-convict.
49. Act No. 10 of 1999 [CPA 1999 (Qld)], Reprint No. 6D of 1 July 2010.
50. Ibid., s. 9(1).
51. Ibid., s. 9(2).
52. Ibid., s. 9(3).
53. Act No. 34 of 2004 [CCSA 2004 (WA)]. See Part 4 of the Act.
54. Act No. 93 of 1993 [CPA 1993 (SA)].
55. Act No. 95 of 2005 [CYFA 2005 (Vic)].
56. Ibid., s. 162(1)(c).
57. Ibid., s. 162(1)(d).
58. Ibid., s. 162(1)(e).
59. Ibid., s. 162(1)(f).
60. Act No. 157 of 1998 [CYPA 1998 (NSW)].
61. Ibid., s. 23(1).
62. Ibid., s. 23(1)(c).
63. Ibid., s. 23(1)(d). |
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