Welcome to another Monday, which appears to have shape shifted from sunny to gloomy all in the blink of an eye, as can often happen in the family courts too. This week’s question revolves around the notions of double jeopardy, standards of proof and the effectiveness of a dual system in family matters.

Although the family courts are unique in that they are often described as quasi-legal, due to the nature of the Orders made (often flexible and open to informal changes), they use the same standard of proof as their civil court counterparts.

The civil standard, or burden of proof, requires that decisions must be made on “a balance of probabilities” – is it “more likely than not”, that something took place.

However, many parents going through the family courts also find themselves going through our criminal courts too. This is because sometimes they are being tried for crimes which have to be assessed by a criminal court under our current law. These crimes include child abuse and neglect.

The standard for crimes inside our court, or the burden of proof, requires broadly that the allegation is proved “beyond a reasonable doubt”.

This standard is different to the civil standard. But some families find that they are subject to scrutiny of the same crime, in both courts. This is due to the fact that there is an overlap where children are concerned. Laws regulating the welfare of children straddle both the family and criminal courts.

Although Double Jeopardy has been ushered out of UK law since 2005 (allowing for retrials where fresh and compelling evidence has arisen), there is a legal and ethical question mark over trying parents twice for the same crime in separate courts.

Often, no new evidence has come to light; the courts are merely just using two sets of sometimes differing evidence (depending on what is allowed as evidence in each court – which again may vary considerably under each court’s rules about types of evidence).

The result is that a parent may be found guilty in one court, but innocent in another.

Our question this week then, is just this: is our dual system a help or a hindrance when trying to establish guilt or innocence in such cases? 

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