Case No. ZW20P01551

Introduction1.I am concerned with two children CS, a young teenager, and DS, a pre-teenager. Their father is the applicant, AS, and their mother is the respondent, BS.2.On 7th November 2020 the father made an application for a child arrangements order that both of the children should live with him. The mother then opposed this application and sought an order that both of the children should remain living with her.3.By the conclusion of the evidence at this hearing the children’s guardian was of the very firm view that it was in the welfare best interests of the children to live with their father.Law Welfare4.My paramount consideration is the welfare best interests of CS and DS: s.1(1) Children Act 1989 (‘the 1989 Act’).5.I have taken account of the factors set out in the welfare checklist of s.1(3) of the 1989 Act insofar as they are relevant to the circumstances of this case.6.I have had regard to the Article 6 and 8 rights of the father, the mother and of CS and DS. Where, however, there is a tension between the Article 8 rights of a parent, on the one hand, and the Article 8 rights of the child, on the other, the rights of the child prevail: Yousef v. The Netherlands [2003] 1 FLR 210.Lies7.The rule of R v Lucas [1981] QB 720 was adopted in the family courts in A County Council v K, D and L. The principle is that if the court concludes that a witness has lied about one matter it does not follow that he has lied about everything. A witness may lie for many reasons, for example out of shame, humiliation, misplaced loyalty, panic, fear, distress, confusion and emotional pressure.8.In the criminal courts a lie can only be used to bolster evidence against a defendant if the factfinder is satisfied that the lie is deliberate, relates to a material issue and there is no innocent explanation for the lie.9.In the case of Re: H-C (Children) [2016] EWCA Civ 136 at paragraphs 98 to 100 McFarlane LJ, as he then was, said:“98.The decision in R v Lucas has been the subject of a number of further decisions of the Court of Appeal Criminal Division over the years, however the core conditions set out by Lord Lane remain authoritative. The approach in R v Lucas is not confined, as it was on the facts of Lucas itself, to a statement made out ofcourt and can apply to a "lie" made in the course of the court proceedings and the approach is not limited solely to evidence concerning accomplices.In the Family Court in an appropriate case a judge will not infrequently directly refer to the authority of R v Lucas in giving a judicial self-direction as to the approach to be taken to an apparent lie. Where the "lie" has a prominent or central relevance to the case such a self-direction is plainly sensible and good practice.One highly important aspect of the Lucas decision, and indeed the approach to lies generally in the criminal jurisdiction, needs to be borne fully in mind by family judges. It is this: in the criminal jurisdiction the "lie" is never taken, of itself, as direct proof of guilt. As is plain from the passage quoted from Lord Lane's judgment in Lucas, where the relevant conditions are satisfied the lie is "capable of amounting to a corroboration". In recent times the point has been most clearly made in the Court of Appeal Criminal Division in the case of R v Middleton [2001] Crim. L.R. 251.In my view there should be no distinction between the approach taken by the criminal court on the issue of lies to that adopted in the family court. Judges should therefore take care to ensure that they do not rely upon a conclusion that an individual has lied on a material issue as direct proof of guilt”.10.In the case of Re A, B and C (Children) (Rev 1) [2021] EWCA Civ 451 the Court of Appeal gave the following further guidance in respect of a witness’ lies. Macur LJ said at paragraph 58:“That a tribunal's Lucas self-direction is formulaic, and incomplete is unlikely to determine an appeal, but the danger lies in its potential to distract from the proper application of its principles. In these circumstances, I venture to suggest that it would be good practice when the tribunal is invited to proceed on the basis , or itself determines, that such a direction is called for, to seek Counsel's submissions to identify: (i) the deliberate lie(s) upon which they seek to rely; (ii) the significant issue to which it/they relate(s), and (iii) on what basis it can be determined that the only explanation for the lie(s) is guilt. The principles of the direction will remain the same, but they must be tailored to the facts and circumstances of the witness before the court.”11.I, respectfully, agree.Background12.In 1962 the father was born in country Z. In 1970 the mother was born in country Z.13.The parents disagree on when their relationship commenced. In 2005 the father was divorced from his previous wife. In 2007 the parents married in country Z.14.CS was born in country Z and DS was also born there.15.The family moved to this jurisdiction in 2011 living in England. In September 2018 the mother and children moved to live in country Y.16.On 12th October 2019, the mother claimed she asked the father for a divorce and that he had responded by threatening to reduce her financial support. The father denied this occurred.17.The father was personally served with the English divorce petition on 17th February 2020.18.In March 2020 country Y’s first lockdown began. Shortly there