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Law - care proceedings are not criminal proceedings

A recent judgment of the Civil Division in two care cases clarifies the effect of the Cannings judgment on civil family proceedings.

The judgment in the Angela Cannings' case last December raised the hopes of thousands of parents who claimed their children were wrongly taken into care. Quashing the earlier conviction for murder, Lord Justice Judge, in the Criminal Division of the Court of Appeal, said: "if the outcome of the trial depends exclusively or almost exclusively on a serious disagreement between distinguished and reputable experts, it will often be unwise, and therefore unsafe, to proceed [with prosecution]." And he concluded: "In a criminal case, it is simply not enough to be able to establish even a high probability of guilt."
The judgment followed the successful appeal of Trupti Patel, which cast serious doubts over the reliability of the diagnosis for the condition known as Munchausen Syndrome by Proxy, controversially pioneered by Professor Roy Meadow. At the time, the Attorney General announced his intention to re-open 258 cases of Sudden Infant Death Syndrome (SIDS).
Things appeared to take a different turn on 14 May when the Civil Division of the Court of Appeal published its judgment in the cases of LU and LB. The Court dismissed the appeals of two mothers whose children were placed into care after the local authorities found that repeated harm had been caused to the children through the mothers' actions.
Counsel for the mothers argued that the standard of proof in care cases was too relaxed and that a heightened standard should apply instead, similar to that used in criminal cases. Rejecting these arguments Dame Elizabeth Butler-Sloss, president of the family division, said: "The standard of proof to be applied in Children Act cases is the balance of probabilities." She underlined that the Court in Cannings was concerned solely with criminal prosecution and that the test in Children Act cases had not been varied nor adjusted by subsequent dicta made in applications considered under different statutes.
The decisions in Cannings and Patel may have given credence to the belief that a higher standard of proof would now apply to care proceedings. However, as Dame Butler-Sloss suggested: "There may have been a tendency in some quarters to over-estimate the impact of the judgment in R v Cannings in family proceedings." Whilst the Cannings case may "resonate" in family proceedings, it was decided on the basis of the specific factual and legal circumstances of the case. The facts and circumstances in LU and LB were different, leading to different proceedings, with a different standard of proof.
If anything, the decision in LU and LB will serve as a reminder of the distinct purposes of care proceedings and prosecution in SIDS cases. The criminal element in the latter should not allow issues of standard of proof to drift into the former. The judgment may restore the confidence of local authorities - if needed - in relation to the steps they are minded to take as part of their responsibilities to protect children. On the criminal side, what it will not do is make it more difficult for parents wrongly convicted to have their case reviewed effectively.
LU (a child) v LB (a child)

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