SD23P20230/SD15/25 - [2025] EWHC 2960 (Fam)

I have been taken to the guidance given by Baker J (as he then was) in Re L and M (Children) [2013] EWHC 1569 (Fam) confirmed by the President in In the Matter of X (Children) (No 3) [2015] EWHC 3651 at paras 20 – 24 and the judgment of Aikens LJ in Re J and Re A (A Child) (No 2) [2011] EWCA Civ 12.

The standard of proof is the simple balance of probabilities. As Lord Hoffman observed in Re B (Care Proceedings: Standard of Proof) [2008] UKHL 35that: “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 by the court that something might have happened. The law operates a binary system in which the only values are nought and none”.

The burden of proof rests on the shoulders of the party which seeks the finding. It is for them to satisfy the Court, on the balance of probabilities, that it has made out the case in relation to disputed facts. A respondent to an allegation has nothing to prove, and the Court must be careful to ensure that it does not reverse the burden of proof. As Mostyn J said in Lancashire v R [2013] EWHC 3064 (Fam), there is no pseudo-burden to come up with alternative explanations. 

Findings of fact must be based on evidence, and the inferences that can properly be drawn from the evidence, and not on speculation or suspicion. The dividing line between the drawing of inferences and speculation may not be a clear one; it is essentially a matter of judgment as to what is a legitimate inference and what is insupportable speculation: Re A (A child) (Fact Finding Hearing: Speculation [2011] EWCA Civ 12 [2011] and Re A [2015] (Application for Care and Placement Orders: Local Authority Failings) [2015] EWFC 11 .

A party/witness may lie for many reasons, such as shame, misplaced loyalty, panic, fear, and distress. They may lie because they are desperate to have a family or keep a child who they regard as theirs within their family. The fact that a party/witness has lied about some matters does not mean that he or she has lied about everything: R v Lucas [1982] QB 720. Within the context of family proceedings, the Court of Appeal has made it clear that the application of the principle articulated in Lucas in family cases should go beyond the Court merely reminding itself of the broad principle. In Re H-C (Children) [2016] 4 WLR 85, McFarlane LJ (as he then was) stated as follows: 

“[100] 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.” 

The four relevant conditions which must be satisfied before a lie is capable of amounting to corroboration are set out by Lord Lane CJ in Lucas as follows: 

“To be capable of amounting to corroboration the lie told out of court must first of all be deliberate. Secondly it must relate to a material issue. Thirdly the motive for the lie must be a realisation of guilt and a fear of the truth. The jury should in appropriate cases be reminded that people sometimes lie, for example, in an attempt to bolster up a just cause, or out of shame or out of a wish to conceal disgraceful behaviour from their family. Fourthly the statement must be clearly shown to be a lie by evidence other than that of the accomplice who is to be corroborated, that is to say by admission or by evidence from an independent witness.” 

In the Family Court, even where the Court is satisfied that a lie is capable of amounting to corroboration, the Court must weigh that lie against any evidence that points away from the allegation being made out:H v City and Council of Swansea and Others [2011] EWCA Civ 195. 

In Re F (A Child) (Placement Order) [2018] EWCA Civ 7261 para 25 Jackson LJ said this:

“[25] Similarly, close attention must be paid to the true significance of lies deplorable, are significant only to the extent that they affect the welfare of the child, and in particular to the extent that they undermine systems of protection designed to keep the child safe. However, as noted by Macur LJ in Re Y (A Child) [2013] EWCA Civ 1337 , they cannot be allowed to hijack the case. See also Sir James Munby P in Re A (Application for Care and Placement Orders: Local Authority Failings) [2015] EWFC 11, [2016] 1 FLR 1, at para [12]: ‘The second fundamentally important point is the need to link the facts relied upon by the local authority with its case on threshold, the need to demonstrate why, as the local authority asserts, facts A + B + C justify the conclusion that the child has suffered, or is at risk of suffering, significant harm of types X, Y or Z. Sometimes the linkage will be obvious, as where the facts proved establish physical harm. But the linkage may be very much less obvious where the allegation is only that the child is at risk of suffering emotional harm or, as in the present case, at risk of suffering neglect. In the present case, as we shall see, an important element of the local authority’s case was that the father “lacks honesty with professionals”, “minimises matters of importance” and “is immature and lacks insight of issues of importance”. Maybe. But how does this feed through into a conclusion that A is at risk of neglect? The conclusion does not follow naturally from the premise. The local authority’s evidence and submissions must set out the argument and explain explicitly why it is said that, in the particular case, the conclusion indeed follows from the facts.’ Although these observations about lies and lack of insight are directed to proof of the threshold, they can equally be applied to the welfare evaluation”

In Re K (children) (placement orders) [2020] EWCA Civ 1503, Jackson LJ who said at paragraph 29:

“The next general matter concerns the significance of lies. The correct approach to lies in relation to fact-finding is well known and the Judge appropriately gave himself a Lucas direction in that context. Here the more pertinent matter for our purpose concerns lies in the context of welfare. Lies, however disgraceful and dispiriting, must be strictly assessed for their likely effect on the child, and the same can be said for disobedience to authority. In some cases, the conclusion will simply be that the child unfortunately has dishonest or disobedient parents. In others, parental dishonesty and inability to co-operate with authority may decisively affect the welfare assessment. But in all cases the link between lies and welfare must be spelled out. That did not happen in Re Y (A Child) EWCA Civ 1337, where Macur LJ said this at [7(4)]:

"… I consider the case appears to have been hijacked by the issue of the mother's dishonesty. Much of the local authority's evidence is devoted to it. The Children's Guardian adopts much the same perspective. It cannot be the sole issue in a case devoid of context. There was very little attention given to context in this case. No analysis appears to have been made by any of the professionals as to why the mother's particular lies created the likelihood of significant harm to these children and what weight should reasonably be afforded to the fact of her deceit in the overall balance."

Those principles have recently restated by Cobb LJ in the case of Re M (Care Order: Risk: Family Placement) [2025] EWCA Civ 163, where he said at paragraphs 89 and 90:  

“There is one final contextual point to make. The Judge placed great weight on the mother’s lies and dishonesty as illustrative of her lack of protective capability, but in my judgment she failed to have proper regard to the observations of Peter Jackson LJ in Re F at [25] and Sir James Munby P in Re A (Application for Care and Placement Orders: Local Authority Failings) [2015] EWFC 11, [2016] 1 FLR 1, at para [12]:

“Lies, however deplorable, are significant only to the extent that they affect the welfare of the child, and in particular to the extent that they undermine systems of protection designed to keep the child safe”.