E (A Child), Re

In child-protection fact-finding proceedings, the court must determine the issues on the balance of probabilities, while recognising that a party’s lie about one matter does not necessarily establish lies about others. Where the evidence does not permit a distinct finding, the court may identify a range of possibilities rather than strain to reach an unsafe conclusion. The court may also make observations relevant to welfare, provided they are consistent with the findings and procedural fairness is preserved.

In assessing a child’s welfare, the court may attach substantial importance to the child having a clear and truthful account of her parentage and origins. Continuing assertions inconsistent with established scientific evidence may create serious confusion and harm.

This was a fact-finding hearing in care proceedings concerning E, a young child brought from Nigeria to the United Kingdom by Mrs O. Mr and Mrs O claimed to be E’s parents. The local authority sought findings that they were neither her biological parents nor biologically related to her, and that Mrs O had falsely represented herself as E’s mother to obtain travel documentation.

The court considered DNA evidence, medical and pregnancy evidence, evidence concerning the alleged birth in Nigeria, and the parties’ credibility. The central issues were E’s biological origins, whether Mrs O had given birth to her, the extent of any dishonest representation, and the implications for any future welfare assessment.

1. Findings and standard of proof. The court applied the civil standard of proof. It was satisfied, both on the balance of probabilities and beyond reasonable doubt, that E was not the biological child of Mr and Mrs O and that they were not related to her. The court accepted that E had been brought to the United Kingdom on or about 23 December 2010, but could not establish where or precisely when she was born.
2. Evaluation of evidence. Applying R v Lucas [1981] QB 720, a finding that a party lied on one issue did not automatically establish dishonesty on every other issue. The court considered the evidence as a whole, including the repeated DNA results, negative pregnancy investigations, the absence of maternal HIV antibodies, the expert evidence, inconsistencies in the accounts, and Mrs O’s refusal to undergo the proposed examination. It found that Mrs O had not given birth to E and had knowingly failed to tell the truth, but could not determine precisely whether she had been deceived, had experienced pseudocyesis, or had participated in a fabricated process.
3. Uncertain findings. The court applied the approach identified in A (A Child) (No 2) [2011] EWCA Civ 12. It was entitled to identify a range or spectrum of possibilities where a distinct finding could not safely be made. It was not required to strain to make a finding, particularly where the court was satisfied that the whole truth had not been provided. It could also make observations relevant to the later welfare stage, subject to proper notice and an opportunity to adduce evidence.
4. Welfare implications. The court accepted the social-work evidence that E required a clear narrative about her parentage and origins. Continuing to assert that Mrs O was E’s mother, despite the established evidence, was likely to cause confusion and possible distress. The court shared the view expressed in Haringey London Borough Council v C, E and another intervening [2005] 2 FLR 47 that a child may suffer significantly if brought up to believe a lie about her origins.
5. Other authorities and procedural issues. The court adopted the general observation in Kernott v Jones [2011] UKSC 53 that the court must reach a decision even in difficult cases. It expressed doubt that Lewisham London Borough Council v D (Police Disclosure of DNA Sample to Local Authority) [2011] 1 FLR 908 necessarily applied to a child-protection case on the materially different facts. The court rejected criticisms of the local authority and concluded that further assessment required specific justification. Final welfare orders were not made in this judgment.