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Law - care proceedings are not criminal 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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