X (Children) (No 3), Re

In fact-finding proceedings, the local authority bears the burden of proving each allegation on the balance of probabilities. The court must assess the evidence as a whole, applying common sense and, where appropriate, inherent probabilities. Suspicion, speculation and the respondent’s failure to prove an affirmative account cannot establish the local authority’s case.

A witness’s lies must be assessed carefully. Lies about some matters do not establish that all other evidence is false. Where the threshold case is not proved, care proceedings must be dismissed, and wardship cannot be continued without satisfying the statutory conditions for exercising the inherent jurisdiction.

The local authority brought care proceedings concerning four children after their mother and the children were detained at an airport while intending to travel to Turkey. It alleged that the mother intended to take the children onwards to Syria, join ISIS and expose them to significant harm. The mother denied that case and gave a later account involving a proposed meeting with a man known as H.

Following a fact-finding hearing, the court assessed the mother’s credibility, the contents of the family’s luggage, alleged links to ISIS and the competing explanations for the journey. The central questions were whether the local authority had proved its allegations and, after it failed to do so, whether the care and wardship proceedings could continue.

1. Findings of fact. The local authority failed to prove the central allegations that the mother intended to take the children to Syria, join ISIS or expose them to significant harm. The court found that the mother had lied, had given a false address and had failed to prove her account concerning H. Those findings did not establish the local authority’s case.
2. The court adopted the principles summarised by Baker J in Re L and M (Children) [2013] EWHC 1569 (Fam): the burden remained on the local authority; the standard was the balance of probabilities; findings had to be based on evidence and proper inferences rather than suspicion or speculation; and the evidence had to be assessed in its totality. The court applied the principle in R v Lucas [1981] QB 720 that a lie about one matter does not necessarily establish lies about everything.
3. The balance-of-probabilities standard had to be applied with common sense, consistently with The Popi M, Rhesa Shipping Co SA v Edmunds, Rhesa Shipping Co SA v Fenton Insurance Co Ltd [1985] 1 WLR 948. The court could take account of inherent probabilities, as explained in In re B (Children) (Care Proceedings: Standard of Proof) (CAFCASS intervening) [2008] UKHL 35, [2009] 1 AC 11, but that did not alter the single legal standard of proof.
4. The failure of the mother to establish her own account did not reverse the burden of proof. The court had to decide whether each discrete part of the local authority’s case was proved. Suspicion was insufficient.
5. The court refused permission to appeal. The care proceedings were dismissed.
6. The local authority could not continue wardship merely because it remained concerned about possible harm. Under section 100(4)(b) of the Children Act 1989, there had to be reasonable cause to believe that, without the inherent jurisdiction, the children were likely to suffer significant harm. That condition was not met. The wardships and wardship orders were discharged.

This was a first-instance fact-finding judgment. After judgment, the court refused the local authority permission to appeal and dismissed the care proceedings. The wardship proceedings and wardship orders were also discharged.