Case No. ZC20C00674

27.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. I derive the following principles from those cases and the authorities that those judges reviewed: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: “If a legal rule requires facts to be proved, a judge 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 nought and one.”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 opinions of medical experts need to be considered in the context of all the other evidence. In A County Council v KD & L [2005] EWHC 144 Fam. at paragraphs 39 to 44, Mr Justice Charles observed: “It is important to remember that (1) the roles of the court and the expert are distinct and (2) it is the court that is in the position to weigh up the expert evidence against its findings on the other evidence. The judge must always remember that he or she is the person who makes the final decision.”ix)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. x)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 AB, CD and EF are lying about the arrangements for KB’s care, including financial arrangements, to cover up the truth of what they did and how KB came to be raped and then to carry her child to term. 28.Amongst the findings that the Local Authority invites the court to make are allegations of dishonesty. In Ivey v Genting Casinos (UK) (trading as Crockfords Club) [2017] UKSC 67, Lord Hughes, with whom the other Supreme Court Justices agreed, held at [74],“When dishonesty is in question the fact-finding tribunal must first ascertain (subjectively) the actual state of the individual’s knowledge or belief as to the facts. The reasonableness or otherwise of his belief is a matter of evidence (often in practice determinative) going to whether he held the belief, but it is not an additional requirement that his belief must be reasonable; the question is whether it is genuinely held. When once his actual state of mind as to knowledge or belief as to facts is established, the question whether his conduct was honest or dishonest is to be determined by the fact-finder by applying the (objective) standards of ordinary decent people. There is no requirement that the defendant must appreciate that what he has done is, by those standards, dishonest.”That is the approach that I apply when considering in this case whether any person has been dishonest.29.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. I am of course concerned with the child, LB. Although the facts alleged concern matters before he was born, they concern his family and their ability to care for and protect a vulnerable member of the family, his mother. Their past actions or inactions had an impact on his welfare, they will continue to do so throughout his childhood, and they are relevant to decisions about his future and the ability of members of the family to care for him and protect and further his best interests.