Y (Children) (No 3)

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, using common sense and, where appropriate, inherent probabilities, without altering the civil standard of proof. A parent’s failure to establish an affirmative explanation does not prove the local authority’s case. Lies must be assessed cautiously, since they may arise from several causes and do not establish that every part of a witness’s evidence is false. Suspicion, speculation, implausibility and fear of what authorities might infer are insufficient without a proper evidential basis. The court must consider each respondent separately. Even where unusual travel and dishonesty are proved, threshold is not established unless the alleged conduct and resulting significant harm are proved to the required standard.

The case concerned four children and three adults who travelled from England to Turkey and were detained near the Syrian border. The local authority alleged that the adults intended to enter Syria with the children, had concealed that intention, had made arrangements consistent with travelling to a war zone, and had caused the children emotional harm through reckless decision-making.

The proceedings followed earlier wardship and care proceedings, in which the children were placed in foster care and later returned to their parents’ care. The court conducted a fact-finding hearing to determine whether the pleaded findings, including an intention to enter Syria and resulting significant harm, were established.

1. Findings sought. The local authority failed to prove the central allegations that any of the adults intended to enter Syria with the children, concealed that intention, or acted from an ideological motivation. The evidence established that the family had travelled to Reyhanli and had been detained in a restricted military zone near the Syrian border, but those facts did not establish the purpose of the journey.
2. Burden and standard. The burden remained throughout on the local authority. The standard was proof on the balance of probabilities, applied with common sense. The court could consider inherent probabilities, but that did not change the standard of proof: Re L and M (Children) [2013] EWHC 1569 (Fam); Re A (a child) (fact-finding: speculation) [2011] EWCA Civ 12; The Popi M, Rhesa Shipping Co SA v Edmunds, Rhesa Shipping Co SA v Fenton Insurance Co Ltd [1985] 1 WLR 948; and In re B (Children) (Care Proceedings: Standard of Proof) (CAFCASS intervening) [2008] UKHL 35.
3. Evidence and lies. The adults’ accounts contained significant lies and were unreliable in important respects. That did not relieve the local authority of proving its own case. Lies could result from fear or a desire to maintain an established account and did not, without more, justify the inference that the adults intended to enter Syria. The court applied the approach in R v Lucas [1981] QB 720 and Re FM (A Child: fractures: bone density) [2015] EWFC B26.
4. Threshold and outcome. The local authority also failed to prove that the conduct was reckless or that it caused significant harm of a kind justifying State intervention. The proceedings were dismissed. The local authority did not pursue an appeal, and the stay was removed.

This was a first-instance fact-finding decision. The children had previously been made wards of court and placed in foster care. They were returned to their parents’ care in August 2015 under an earlier order: [2015] EWHC 2358 (Fam). After this judgment, the local authority considered an appeal but indicated that it would not pursue one.