• In the case of R (CJ) v Cardiff City Council [2011] EWCA civ 1590, it was found that the determinative factor of seeing whether the legal burden to establish a precedent of fact lies with either the individual or public body is the statute’s terms.
  • It was seen that there can be times where neither party will bear the legal burden and it will be up to the court to determine this.

Facts of the Case

  • C upheld they were under the age of 18 when illegally entering the UK and applied, under the Children Act 1989, for accommodation on the basis of their age.
  • As per the evidence, Ousely J found that C was likely to be above 20 years of age and that the burden of proof was on C to assert otherwise.

Issues

  • Who bears the legal burden of proving C’s age?

Held by the Court of Appeal

  • The Court of Appeal dismissed the appeal and held that C was not entitled to accommodation. They also held that it was for the court to determine C’s age based on a balance of probabilities.

Pitchford LJ

  • His Lordship found that “neither party is required to prove the precedent fact. The court, in its inquisitorial role, must ask whether the precedent fact existed on a balance of probability.”
  • “I make it plain that I am not proposing that the burden of proof should not be applied in any case in which an individual is claiming a benefit under a qualifying statutory provision. Whether a burden of proof should be applied at all and, if so, where it should rest, will depend upon the terms of the statute conferring the power to act.” [22]
  • “In the present case there was a range of powers and duties exercisable by public authorities dependent upon the single issue of age. Where the issue is whether the claimant is a child for the purposes of the Children Act it seems to me that the application of a legal burden is not the correct approach. There is no hurdle which the claimant must overcome. The court will decide whether, on a balance of probability, the claimant was or was not at the material time a child. The court will not ask whether the local authority has established on a balance of probabilities that the claimant was an adult; nor will it ask whether the claimant has established on a balance of probabilities that he is a child.” [23]

Editor’s Notes

  • The court can intervene where necessary when seeking to determine on whom the burden of proof rests on. It is interesting that the court may decide that neither party will bear the legal burden and, instead, the court will step in and make the final determination.

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