The Dangers of Civil and Family Courts Making Findings on Serious Criminal Allegations in England and Wales

Civil and family courts in England and Wales are increasingly being asked to decide serious allegations that normally belong in the criminal courts, such as rape, sexual abuse, or coercive control. While the intent is often to protect children or resolve family disputes, the use of a lower standard of proof—the balance of probabilities—creates significant risks of injustice.

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Standards of Proof: Civil vs Criminal

1. Criminal courts – guilt must be proved beyond reasonable doubt. This high standard reflects the severe consequences of a criminal conviction: imprisonment, loss of employment, reputational destruction, and the lifelong stigma of being labelled a criminal.

2. Civil and family courts – findings are made on the balance of probabilities. Judges ask whether something is “more likely than not” (i.e., 51% likely).

In family law, this plays out in fact-finding hearings, where judges are asked to determine whether alleged abuse occurred. These findings can then shape child contact arrangements, safeguarding orders, and wider legal outcomes.

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Case Law: Clarifying the Standard in Family Courts

Re H (Minors) (Sexual Abuse: Standard of Proof) [1996] AC 563 (HL)

The House of Lords confirmed that the balance of probabilities is the standard in family cases, even for serious allegations. However, Lord Nicholls emphasised that the more serious the allegation, the more cogent the evidence must be.

Re B (Children) [2008] UKHL 35

The House of Lords reaffirmed that there is only one civil standard of proof, the balance of probabilities. Allegations are either proved or not proved—there is no third category of “suspicion.” But the court must be mindful that grave allegations require careful scrutiny and strong evidence.

Re S-B (Children) [2009] UKSC 17

The Supreme Court clarified how family courts should identify a “pool of possible perpetrators.” Again, the standard is balance of probabilities, but allegations not proved cannot be relied upon to restrict parental rights.

These cases highlight the judicial attempt to adapt the civil standard to serious allegations, but they do not resolve the core tension: that life-changing findings can rest on evidence falling well short of criminal standards.

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The Concept of “Substantially True”

In civil proceedings (especially defamation), a statement is a defence if shown to be substantially true on the balance of probabilities. Applied in family cases, this means allegations of criminal behaviour can be judicially recorded as “proved,” even if criminal courts would never have secured a conviction.

For an example : two ex girlfriends of a man could collude and make false similar allegations against a man and a civil court would likely say the allegations are "substantially true" and treat them as fact.

This creates a public perception of guilt—effectively equating civil findings with criminal responsibility.

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The Dangers in England and Wales

1. Risk of Wrongful Findings

Civil judges often work with limited evidence, sometimes hearsay, and without the rigorous disclosure or cross-examination safeguards of criminal trials.

2. Erosion of the Presumption of Innocence

A person may be declared to have committed rape, domestic abuse, or child sexual assault without ever facing a jury, undermining the presumption of innocence.

3. Reputational and Professional Harm

Even if no criminal charges are pursued, a family court finding can have devastating lifelong consequences: loss of children, loss of career, and stigma in the community.

4. Confusion in Public Understanding

Media reports sometimes treat civil findings as equivalent to convictions. The distinction between “proved on balance of probabilities” and “proved beyond reasonable doubt” is rarely appreciated outside legal circles.

5. Judicial Pressure

Family judges may feel compelled to make findings to protect children “just in case,” even when evidence is finely balanced. The risk of being criticised for not acting can tilt outcomes against accused parents.

Also judges who decide defamation cases may feel under pressure from the media and or pressure groups.

Criminal judge Vs Civil Judge

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Possible Reforms

1. Tiered Standard of Proof

Introduce a higher evidential threshold (sometimes called “clear and convincing evidence”) for allegations amounting to serious crimes. This would remain within civil law but demand stronger proof than ordinary disputes.

2. Briginshaw-Style Safeguards

Borrowing from Australian law, require judges to explicitly recognise the gravity of allegations and demand more cogent evidence before making findings.

3. Specialist Hybrid Courts

Establish panels that combine family and criminal expertise for serious allegations, ensuring procedural fairness alongside child protection.

4. Mandatory Judicial Clarification

Require judgments to state clearly that civil findings are not equivalent to criminal guilt, helping to reduce misreporting and misunderstanding.

5. Law Commission Review

A review could explore whether current law in England and Wales strikes the right balance between safeguarding and fairness, and whether reforms are needed to protect the presumption of innocence.

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Conclusion

Civil and family courts in England and Wales are ill-equipped to adjudicate allegations of the most serious criminal conduct. The use of the balance of probabilities risks unjust outcomes, reputational ruin, and an erosion of fundamental legal principles.

The cases of Re H, Re B, and Re S-B show how courts have wrestled with these issues, but the law still allows individuals to be branded as abusers or criminals without the safeguards of a criminal trial.

Reform is urgently needed to protect both children and the rights of the accused—ensuring that family justice remains fair, proportionate, and consistent with the presumption of innocence.

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Disclaimer

The Falsely Accused Network is not a law firm and does not provide legal advice. The information in this article is for general discussion and awareness only. It should not be relied upon as a substitute for legal advice from a qualified solicitor or barrister. If you are facing allegations or court proceedings, you should seek advice from a regulated legal professional in England and Wales.