SQ24C50017 - [2025] EWHC 2078 (Fam)

There is no dispute between the parties on the legal principles and the case law that should be applied in this case. The summary set out below is an appropriate analysis of the relevant caselaw, and it is not necessary to set out the various cases that lie behind this summary.

The burden of proof is on the LA. There is no obligation on the parents to provide explanations for injuries or ‘memorable events’ although the court is entitled to weigh the absence of such explanation alongside all the other evidence in the case. The civil standard of proof applies, namely the balance of probabilities. If the LA proves that it is more probable than not that a disputed event occurred, then it becomes an established fact for the purposes of these proceedings. If the event in question is not proved, it is treated as having not occurred. That is the binary system that operates in the Family Court.

The court must reach decisions in relation to disputed allegations on evidence, not speculation or rumour. It may, however, draw logical inferences from evidence that it has accepted.

The court must reach a conclusion in respect of each separate allegation but must also take care not to compartmentalise its analysis – the entire canvas of evidence must be surveyed and each piece of evidence must be considered in the context of the other evidence.

The role of the judge and the expert are very different. The responsibility for making decisions always rests with the judge and not the expert - the expert advises, and the court decides. It is important that the expert evidence in this case is considered as part of the overall evidence in the case and not analysed in isolation.

When considering the expert evidence, the court must keep the following firmly in mind.

The answer to the issues or an allegation in this case cannot be provided by the expert opinion alone. The expert medical evidence must always be combined with the factual evidence before a proper conclusion can be reached by the court and inevitably the parents’ accounts will be an important part of its analysis. It is important that each expert keeps within the bounds of their own expertise and defers, where appropriate, to the expertise of others. Recurrence of injury is not in itself probative.

If the court disagrees with an expert’s conclusions or recommendations an explanation from the court is always required.

The court will be mindful of the fallibility of memory, particularly in a case where multiple accounts have been given, and the fact that it is now 13 months since P sustained the brain injury. The court will acknowledge the dangers of inferring that because a parent has not explained how an injury was caused, the real explanation must be a sinister one.

Where it is alleged that a person has lied, the court must approach this allegation with considerable care, as highlighted in R v Lucas [1981] QB 720. First, having identified the alleged lie in issue, it must ask itself whether the LA has proved, on the simple balance of probabilities, that the alleged lie has been told. The court must accordingly seek to distinguish a lie from, for example, “story creep”, mistake, confusion, memory failure or distortion arising from impairment.

Once the court has undertaken that analysis it will move to the second stage, by which it will consider why the proven lie has been told. This is important because people may lie for many different reasons - embarrassment, a sense of shame for having caused an injury accidentally, a desire to hide some other wrong-doing or a mistaken belief that lying might improve their position.

If a lie is proven, then the relevance of the lie to the court’s enquiry must always be carefully considered. Some lies, irrespective of how unpalatable they may be, will have absolutely nothing to do with the ultimate facts in issue of the case, save perhaps assisting the court with an analysis of the person’s general credibility.

Finally, it is also imperative that the court reminds itself that just because a person lies about one issue, it does not automatically follow that they have lied about everything.