Case No. KH18C00272

[1981] QB 720, that a witness may for many reasons tell lies about one issue but still be reliable on another. 88.The Family Court operates on a binary system. As set out in Re B (Children) [2008] UKHL 35 at [2], Lord Hoffman described the burden and standard of proof in this way: "If a legal rule requires a fact to be proved (a "fact in issue"), a judge or jury must decide whether or not it happened. There is no room for a finding that it might have happened. 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 tribunal 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." 89.The Local Authority seeks to draw a distinction between reliance on an allegation that is treated as not having happened by want of proof, to an allegation that has been found to be untrue. In my judgment that distinction is an appropriate one to make, as seeking a positive finding that an allegation did not happen places an evidential burden on the Respondents, although the burden of proving its allegations rests at all times on the Local Authority. 90.When addressing the issue of ‘exoneration’ in AA v 25 Others, Sir Mark Hedley described, at paragraph 266, the approach to be taken as follows: “This matter has been considered in reported cases cited to me. I am not consciously acting differently to how the matters have been dealt with in those cases, even if I express myself individually. I should make it clear that the legal consequences of exoneration are no different to those where the court has simply declined to make a finding. That is clear from the binary approach adopted by the House of Lords in Re B: “if abuse is not proved against a named person, then it must for all purposes be treated as not having happened. Any such person is not and must not be treated as being left under a cloud of suspicion”.For the reasons which appear in the preceding part of this judgment, that is particularly important in this case. So, what is the test for exoneration? All parties agree that it is more than simply a finding that a specific allegation has not been proved against them. I suggested an analysis that whilst the legal burden of proof at all times remains on the local authority, a party seeking exoneration assumes an evidential burden to satisfy a court of their innocence on a balance of probabilities. No one sought to suggest that was wrong nor to argue for any particularly different approach.”91.I have been referred to no authorities addressing how this court should approach the dispute between the parties on this issue. Is a withdrawn and undetermined allegation simply to be ignored? Is it to be taken into account when surveying the broad canvass of evidence and the weight it should attract only being decided within that exercise or should the allegation be treated as untrue to enable those facing allegations to point to it as an example of dishonesty or fantasy by the children? 92.In answering the above, I am influenced by the late stage these proceedings have now reached, the denials contained in the witness statements before the court and the potential prejudice to the Respondents, and to the Court’s own decision making, by adopting any approach other than the last. To do otherwise allows a Local Authority to withdraw from consideration potentially important credibility evidence. That would prejudice the fact-finding exercise and endanger the fairness of the proceedings. If the Local Authority wishes to withdraw the allegations on the grounds that they cannot be proved, to prevent the Respondents from relying on those allegations as being unreliable would be profoundly unfair. 93.If the Local Authority does not concede the allegations to be false, in my judgment, the most appropriate course of action is to continue to hear the evidence on all the sexual allegations to ensure that the court is able to consider all matters of relevance and within that exercise assess the credibility of all the sexual allegations alongside each other. On behalf of the Local Authority, Mr Thomas informed the Court that the Local Authority would continue to ‘prosecute’ the findings if the Court so required.94.I accept that my decision will lead the Local Authority to review the position it had taken concerning the one allegation pleaded against the stepson. If the Local Authority choose not to cross-examine the stepson and his mother, I shall treat the content of their statements as accepted. If the Local Authority takes the view that those statements should not be accepted, it will need to reconsider its decision to withdraw those allegations. 95.During the hearing of oral submissions some advocates addressed, at my invitation, the factors that the court might take into account in determining whether it would be appropriate for any Respondent to be compelled to give evidence. Having now reached the decision that the Court will be assisted by hearing oral evidence from all of the Respondents, except Mr Brown’s client, I hope that I will not need to consider making orders to require compliance. Should that be necessary, I will need to assess the reasons given for the refusal. Any Respondent who refuses to give oral evidence faces the risk of adverse inferences being drawn. The circumstances in which the court might draw adverse inferences were considered by Baker LJ in T v J [2020] EWCA Civ and Williams J in K (Threshold: Cocaine Ingestion: Failure to Give Evidence) [2020] EWHC 2502. In the later, Williams J summarised the approach to be taken as follows: “42. Cases from other fields such as TC Coombs v IRC [1991] 2 AC 283 and Wisniewski v. Central Manchester Health Authority [1998] PIQR P324 support a more nuanced approach. Brooke LJ said in the latter case. From this line of authority, I derive the following principles in the context of the present case: (1)In certain circumstances a court may be entitled to draw adverse inferences from the absence or silence of a witness who might be expected to have material evidence to give on an issue in an action. (2)If a court is willing to draw such inferences they may go to strengthen the evidence adduced on that issue by the other party or to weaken the evidence, if any, adduced by the party who might reasonably have been expected to call the witness. (3)There must, however, have been some evidence, however weak, adduced by the former on the matter in question before the court is entitled to draw the desired inference: in other words, there must be a case to answer on that issue. (4)If the reason for the witness’s absence or silence satisfies the court then no such adverse inference may be drawn. If, on the other hand, there is some credible explanation given, even if it is not wholly satisfactory, the potentially detrimental effect of his/her absence or silence may be reduced or nullified. 43. I consider that the approach outlined by Brooke LJ more fully reflects the proper approach. These are inquisitorial proceedings rather than adversarial, where the welfare of the children is at stake and where the authorities on fact-finding require the court to survey all the evidence and to avoid compartmentalisation. The legislative framework allows for the admission of hearsay evidence. The approach to lies in Lucas requires a more measured approach. At one end of the spectrum, there will no doubt be cases where the court is satisfied that a person has deliberately refused to come to court to support their written statement and where there is no excuse or explanation. In that scenario, the court might take a bright line approach and refuse to place any weight on any of their evidence and draw inferences against them that any allegations are true. In other cases, the court will need to consider the circumstances of their failure to give evidence, any explanations offered or which present themselves and the evidence itself and the issues it goes to. Where there is compelling evidence explaining an inability to attend full weight might be given and no inferences drawn. In between will be cases where the court might determine it is appropriate to rely on and give weight (even full weight) to some evidence but not to other evidence and to draw some but not necessarily all possible inferences.”96.Whether any adverse inferences might be drawn can, in my judgment, only be assessed at the time any refusal to give evidence occurs and with knowledge of the reasons why the witness is resistant. 97.The advocates before me have searched for case law that might provide some guidance to the Court regarding the factors it should consider if invited to compel a party to give evidence in the Family Court. I have been referred to the decision of Hale LJ at paragraph 31 of Y v K [2003] EWCA Civ 669 where the following observation is made concerning when a court might not compel a party to give oral evidence: “although there remains a residual discretion in the court to refuse to compel a compellable witness if to do so would be a fishing exercise, speculation or oppression. This will rarely be the case in care proceedings where the parents' explanations of what has happened to their child are usually an important factor in understanding the case.”98.It is my expectation that all those Respondents able to do so will give oral evidence to assist the Court.