Allegations of Violence: Prove It

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 [2008] 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) [1996] AC 563 [1996] 1 FLR 80. The House of Lords looked again at those conclusions in Re B (Children) [2008] UKHL 35 [2008] 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...

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