The Law
6.The parties have submitted an agreed statement of the applicable law to which I have had careful regard. The judgments of Baker J in A Local authority and (1) Mother (2) Father (3) L & M (Children, by their Children’s Guardian) [2013] EWHC 1569 (Fam) and Peter Jackson J in Re BR (Proof of Fact) [2015] EWFC 41 are of considerable assistance in guiding the court’s approach to a finding of fact hearing of this kind. From those judgments and the authorities reviewed in them, I derive the following principles as applicable to the present case:i)The burden of proof lies on the Local Authority that brings the proceedings and identifies the findings it invites the court to make. ii)The standard of proof is the balance of probabilities, Re B [2008] UKHL 35. If the standard is met, the fact is proved. If it is not met, the fact is not proved. As Lord Hoffman observed in Re B: iii)There is no burden on a parent or other party to come up with an alternative explanation and, where an alternative explanation for an injury or course of conduct is offered, its rejection by the court does not establish the applicant’s case. iv)The inherent probability or improbability of an event is a matter to be taken into account when weighing the evidence and deciding whether, on balance, the event occurred, but regard to inherent probabilities does not mean that where a serious allegation is in issue, the standard of proof required is higher. v)Findings of fact must be based on evidence, not suspicion or speculation - Lord Justice Munby in Re A (A child) (Fact Finding Hearing: Speculation) [2011] EWCA Civ. 12.vi)The court must take into account all the evidence and consider each piece of evidence in the context of all the other evidence. This is sometimes described as a need to view the evidence as a broad canvas. As Dame Elizabeth Butler-Sloss, President observed in Re T [2004] EWCA Civ. 558, [2004] 2 FLR 838 at paragraph 33: “Evidence cannot be evaluated and assessed in separate compartments. A judge in these difficult cases must have regard to the relevance of each piece of evidence to the other evidence and to exercise an overview of the totality of the evidence in order to come to the conclusion of whether the case put forward by the Local Authority has been made out to the appropriate standard of proof.”vii)In a case where the alleged perpetrator of violence or abuse, or a person accused of dishonesty or fraud, is or may be the subject of criminal prosecution arising out of the same alleged facts, it is important to emphasise that the family court is not determining whether the person concerned is guilty of a specific criminal offence. As Cobb J 81. As I said in F v M [2019] EWHC 3177 at [29], in a passage endorsed by the Court of Appeal in Re H-N [2021] EWCA Civ 448,"There is a risk in a case such as this, where the alleged conduct at the heart of the fact-finding enquiry is, or could be, of a criminal nature, for the family court to become too distracted by criminal law concepts. Although the family court may be tempted to consider the ingredients of an offence, and any defence available, when considering conduct which may also represent an offence, it is not of course directly concerned with the prosecution of crime."The role of the Judge in a family case determining findings of fact is fundamentally different from the role of the judge and jury in the Crown Court. As the Court of Appeal said in Re R [2018] EWCA Civ 198: “The primary purpose of the family process is to determine, as best that may be done, what has gone on in the past, so that that knowledge may inform the ultimate welfare evaluation where the court will choose which option is best for a child with the court's eyes open to such risks as the factual determination may have established.” [62]viii)The evidence of the parents and any other carers is of the utmost importance. They must have the fullest opportunity to take part in the hearing and the court must form a clear assessment of their credibility and reliability. ix)It is not uncommon for witnesses in these cases to tell lies in the course of the investigation and the hearing. The court must be careful to bear in mind that a witness may lie for various reasons, such as shame, misplaced loyalty, panic, fear, distress and the fact that the witness has lied about some matters does not mean that he or she has lied about everything: see R v Lucas [1981] QB 720. In the recent Court of Appeal judgment in A, B, and C (Children) [2021] EWCA 451, Macur LJ advised at [57],“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.”In this case the Local Authority alleges that T is lying about his behaviour towards R, and that the mother and father are lying about R having made known her allegations to her mother and her father having known of the allegations and made threats to R in connection with them. T alleges that R has fabricated all but one of her allegations. 7.There is no medical or expert evidence in this case. The evidence in support of the allegations of sexual abuse comes from R alone. The events she described were not witnessed. T disputes all but one of the allegations. The allegations occurred within the home, or within the home of a member of the extended family in Pakistan. They are historic, the last alleged occurrence of abuse being at least four years before the allegations were made. R was between the ages of about 9 and 12, and T between the ages of about 11 and 14 at the time of the alleged abuse. The consequences of R having made the allegations and of the findings made by this court are far reaching. Accordingly, the court has to approach the evidence with great care, although the standard of proof remains on the balance of probabilities.8.Findings of fact will form the basis for consideration of whether the threshold for a care or supervision order under s 31(2) Children Act 1989 has been met. 9.My first involvement in this case has been to conduct the finding of fact hearing. The parties and the court had previously considered whether the allegations required a finding of fact hearing and had determined that such a hearing was necessary and relevant to the welfare decisions that will be for the court to decide. Although the making of findings is of great importance to R, T, and their parents, the need to make findings is not as obviously necessary to the welfare determinations involving S. I considered the recent Court of Appeal judgment in K v K [2022] EWCA Civ 468 However, T was heavily involved in S’s care, S is highly vulnerable, the parents may be found to have failed to protect S, and since the court had previously decided that a finding of fact hearing was necessary, I was content to proceed.