FD24P00534 - [2025] EWHC 717 (Fam)

The law

In determining issues of fact, the standard of proof is the balance of probabilities (Re B [2008] UKHL 35). The burden of proof lies upon the person or body that makes the allegations.

Findings of fact must be based on evidence and not speculation (Re A (A Child)(Fact Finding Hearing: Speculation) [2011] EWCA Civ 12). In that case Munby J (as he then was) pertinently said:

“[104] Any judge who has had to conduct a fact-finding hearing such as this is likely to have had experience of a witness – as here a woman deposing to serious domestic violence and grave sexual abuse - whose evidence, although shot through with unreliability as to details, with gross exaggeration and even with lies, is nonetheless compelling and convincing as to the central core. It is trite that there are all kinds of reasons why witnesses lie, but where the issues relate, as here, to failed marital relationships and the strong emotions and passionsthat the court process itself releases and brings into prominence in such a case, the reasons why someone in the mother's position may lie, even lie repeatedly, are more than usually difficult to decipher. Yet through all the lies, as experience teaches, one may nonetheless be left with a powerful conviction that on the essentials the witness is telling the truth, perhaps because of the way in which she gives her evidence, perhaps because of a number of small points which, although trivial in themselves, nonetheless suddenly illuminate the underlying realities.”

Evidence must not be looked at in separate compartments and a judge must have regard to the relevance of each piece of evidence to other evidence and to exercise an overview of the totality of the evidence in order to come to the conclusion as to whether the allegations are made out to the appropriate standard of proof (Re T [2004] EWCA Civ 558).

If a court concludes that a witness has lied about one matter, it does not follow that he or she 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 (R v Lucas [1981] QB 720). The application of this principle should go beyond the court merely reminding itself of it in broad terms: Re H-C (Children) [2016] 4 WLR 85.

In Lancashire County Council v C, M and F (Children; Fact Finding Hearing) [2014] EWFC 3, Peter Jackson J (as he then was) stated:

“in cases where repeated accounts are given of events…, the court must think carefully about the significance or otherwise of any reported discrepancies.  They may arise for a number of reasons.  One possibility is of course that they are lies designed to hide culpability.  Another is that they are lies told for other reasons.  Further possibilities include faulty recollection or confusion at times of stress or when the importance of accuracy is not fully appreciated, or there may be inaccuracy or mistake in the record-keeping or recollection of the person hearing and relaying the account.  The possible effects of delay and repeated questioning upon memory should also be considered, as should the effect on one person of hearing accounts given by others.  As memory fades, a desire to iron out wrinkles may not be unnatural – a process that might inelegantly be described as "story-creep" may occur without any necessary inference of bad faith”.  These words echo the words of Leggatt J in Gestmin SGPS v Credit Suisse (UK) Ltd [2013] EWHC 3560 as to the fallibility of human recollection, and the limitations of memory”.

A judge should avoid placing excessive or exclusive reliance on the demeanour of a witness: Re B-M (Children: Findings of Fact)[2021] EWCA Civ 1371 albeit the assessment of the impression made by a witness may be given weight by a judge alongside other matters in a case where the facts are not likely to be primarily found in contemporaneous documents and where due account is taken of the pressure involved in giving oral evidence.

The principles to be applied in relation to the evidence of children have been set out in numerous authorities. In AS v TH [2016] EWHC 532, MacDonald J noted that the courts have endorsed a number of the general principles set out in the ABE guidelines:

“It is desirable that interviews with young children should be conducted as soon as possible after any allegations are made (Re M (Minors)(Sexual Abuse: Evidence) [1993] 1 FLR 822).”

MacDonald J made a number of similar points in Re P (Sexual Abuse: Finding of Fact Hearing) [2019] EWFC 27. Where a child has been interviewed on a number of occasions the court may attach diminishing weight to what is said in the later interviews (Re D (Child Abuse: Interviews) [1998] 2 FLR 10). The court will wish to see responses from the child which are neither forced nor led (Re X (A Minor)(Child Abuse: Evidence) [1989] 1 FLR 30). It is normally undesirable for a parent to be present during an interview with the child (Re N (Child Abuse: Evidence) [1996] 2 FLR 214) and see the Cleveland Report (para 12.35). In Re S (A Child) [2013] EWCA Civ 1254, Ryder LJ confirmed that the guidance set out in the Cleveland Report at paragraph 12.34 with respect to interviewing children remain good practice.

In the case of SR [2018] EWCA Civ 2738, Baker LJ set out a number of points about ABE guidance, which is relevant to the evidence of children both within and outside the formal process.