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14.20As noted at the outset to this chapter, the processes of the Court of Protection are essentially inquisitorial, which means that questions of the burden of proof are not relevant to some of its tasks. Questions of the burden of proof are, for instance, not relevant to the question of what is in P’s best interests, which is ‘primarily an inquiry by the courts, weighing into the balance various factors. No party is under a burden of proof; rather the court, after investigating best interests, decides that issue on a balance of probability’.
1Cheshire West and Cheshire Council v P and M [2011] EWHC 1330 (Fam), [2011] COPLR Con Vol 273 at paras 51–52 per Baker J, endorsing the submissions made by the mother of P, supported by the Official Solicitor. This approach was endorsed by Sir James Munby P in Re G [2014] EWCOP 1361, [2014] COPLR 416 at para 5214.21However, the court nonetheless proceeds on the basis of conventional civil principles when it comes to the determination of a fact or facts that one party must prove in order to obtain the relief that it seeks (properly called ‘facts in issue’). These principles have been summarised thus:
2A Local Authority v M and Another [2014] EWCOP 33, [2015] COPLR 6 per Baker J.83. First, the burden of proof lies with the local authority. It is the local authority that brings these proceedings and identifies the findings that they invite the court to make. Therefore, the burden of proving the allegations rests with them.
84. Secondly, the standard of proof is the balance of probabilities: Re B (Children) [2008] UKHR 35. If the local authority proves a fact on the balance of probabilities, this court will treat that fact as established and all future decisions concerning M’s future will be based on that finding. Equally, if the local authority fails to prove any allegation, the court will disregard that allegation completely. In her written submissions on behalf of the local authority, Miss Bretherton contended that the court should apply the principle that
‘the more serious the allegation the more cogent is the evidence required to overcome the unlikelihood of what is alleged and thus to prove it.’
This principle, originally stated by Ungoed-Thomas J in Re Dellows Will Trust [1964] 1 WLR 451, was at one time applied by the courts considering allegations of child abuse in family proceedings under the Children Act 1989. In Re B, however, the House of Lords emphatically rejected that approach. Baroness Hale of Richmond, with whose judgment the other four Law Lords agreed, having analysed the case law, stated at paragraphs 70 to 72:
‘70 I would announce loud and clear that the standard of proof in finding the facts necessary to establish the threshold under s31(2) or the welfare considerations of the 1989 Act is the simple balance of probabilities – neither more nor less. Neither the seriousness of the allegation nor the seriousness of the consequences should make any difference to the standard of proof to be applied in determining the facts. The inherent probabilities are simply something to be taken into account, where relevant in deciding where the truth lies.71. As to the seriousness of the consequences, they are serious either way. A child may find her relationship with her family seriously disrupted or she may find herself still at risk of suffering serious harm. A parent may find his relationship with his child seriously disrupted or he may find himself still at liberty to maltreat this or other children in the future.72. As to the seriousness of the allegation, there is no logical or necessary connection between seriousness and probability.’
In my judgment, the same approach must surely apply in the Court of Protection where the court is carrying out a similar exercise in determining the facts upon which to base decisions as to the best interests of an incapacitated adult.
85. Thirdly, findings of fact in these cases must be based on evidence. As Munby J (as he then was) observed in Re A (A Child: Fact-finding hearing: speculation) [2011] EWCA Civ 12:
‘It is an elementary proposition that findings of fact must be based on evidence, including inferences that can properly be drawn from the evidence, and not on suspicion or speculation.’
86. Fourth, the court must take into account all the evidence and, furthermore, consider each piece of evidence in the context of all the other evidence. As Dame Elizabeth Butler-Sloss, President, observed in Re T [2004] EWCA Civ 458, [2005] 2 FLR 838, at paragraph 33:
‘Evidence cannot be evaluated and assessed in separate compartments. A judge in these difficult cases must have regard to the relevance of each piece of evidence to the other evidence and to exercise an overview of the totality of the evidence in order to come to the conclusion whether the case put forward by the local authority has been made out to the appropriate standard of proof.’
87. Fifth, whilst appropriate attention must be paid to the opinion of medical experts, those opinions need to be considered in the context of all the other evidence. The roles of the court and the experts are distinct. It is the court that is in the position to weigh up expert evidence against the other evidence: A County Council v K, D and L [2005] EWHC 144 Fam, [2005] 1 FLR 851 per Charles J.
88. Sixth, in assessing the expert evidence, which involves a multi-disciplinary analysis of the medical information conducted by a group of specialists, each bringing their own expertise to bear on the problem, one important consideration – and of particular relevance in this case – is that the court must be careful to ensure that each expert keeps within the bounds of their own expertise and defers where appropriate to the expertise of others – see the observations of Eleanor King J in Re S [2009] EWHC 2115 Fam.
[…]
90. Eighth, it is not uncommon for witnesses in these cases to tell lies, both before and during the hearing. The court must be careful to bear in mind that a witness may lie for many reasons – such as shame, misplaced loyalty, panic, fear and distress – and the fact that a witness has lied about some matters does not mean that he or she has lied about everything – see R v Lucas [1981] QB 720. The assessment of the truthfulness is an important part of my function in this case.15.24
14.22The following observations of Mostyn J
3Re D (a child) [2014] EWHC 121 (Fam), [2014] Fam Law 421 at para 31 per Mostyn J. This was a care case, but the principles are of general application. are also important:
ii) The law operates a binary system in which the only values are 0 and 1. The fact either happened or it did not. If the court is left in doubt, the doubt is resolved by a rule that one party or the other carries the burden of proof. If the party who bears the burden of proof fails to discharge it, a value of 0 is returned and the fact is treated as not having happened. If he does discharge it, a value of 1 is returned and the fact is treated as having happened: Re B (Care Proceedings: Standard of Proof), at para [2] per Lord Hoffmann.
[…]
iv) Sometimes the burden of proof will come to the judge’s rescue: the party with the burden of showing that something took place will not have satisfied him that it did. But generally speaking a judge ought to be able to make up his mind where the truth lies without needing to rely upon the burden of proof: Re B (Care Proceedings: Standard of Proof) at paras [2] and [32]; Rhesa Shipping Co SA v Edmond and Another: The Popi M [1985] 1 WLR 948.
v) It is impermissible for a judge to conclude in the case of a series of improbable causes that the least improbable or least unlikely is nonetheless the cause of the event: Rhesa Shipping Co SA v Edmond and Another: The Popi M; Ide v ATB Sales Ltd; Lexus Financial Services t/a Toyota Financial Services (UK) plc v Russell [2008] EWCA Civ 424 at para [4].
vi) There is no pseudo-burden or obligation cast on the respondents to come up with alternative explanations: Lancashire County Council v D and E [2010] 2 FLR 196 at paras [36] and [37]; Re C and D (Photographs of Injuries) [2011] 1 FLR 990, at para [203].
vii) The assessment of credibility generally involves wider problems than mere ‘demeanour’ which is mostly concerned with whether the witness appears to be telling the truth as he now believes it to be. With every day that passes the memory becomes fainter and the imagination becomes more active. The human capacity for honestly believing something which bears no relation to what actually happened is unlimited. Therefore, contemporary documents are always of the utmost importance: Onassis and Calogeropoulos v Vergottis [1968] 2 Lloyd’s Rep 403, per Lord Pearce; A County Council v M and F [2011] EWHC 1804 (Fam) [2012] 2 FLR 939 at paras [29] and [30].
14.23It is worth amplifying point ii): if a party decides not to advance an allegation (or withdraws it) because it does not consider that it can properly make out the relevant facts supporting that allegation, for purposes of the court’s determination of the issues to which the allegation goes, it must proceed on the basis that the facts did not happen.
14.24Further, where the court is asked to determine allegations of harm it is suggested that, by analogy with the position that prevails in care proceedings relating to children, a conclusion that an adult has suffered from harm at the hands of another must be based upon facts, not just suspicion.
4In re H (minors) (sexual abuse: standard of proof) [1996] AC 563 at 591E per Lord Nicholls. It is further suggested that a real possibility alone would not be sufficient.
5In Re B at para 70 per Baroness Hale.