A & B (Children: Fact Find), Re

In fact-finding proceedings, the local authority bears the burden of proving both the threshold criteria and the facts sought on the balance of probabilities. A lie must not be treated as direct proof of the primary case. It may be relevant only after the court considers why it was told and whether it is capable of supporting other evidence. A party’s failure to establish an alternative account does not, by itself, prove the opposing case. Where a very young, non-ambulant child sustains an unexplained injury while in the care of two identified carers, the court may find that the injury was inflicted, while avoiding speculation as to which carer caused it.

The local authority applied for a care order concerning A and sought findings about the parents’ relationship, an incident on 6 May 2017, and their subsequent cooperation with professionals. A sustained a bruise while in the parents’ care. The parents gave materially inconsistent accounts, denied or minimised the incident, and failed to provide an accidental explanation for the injury.

The proceedings were complicated by the parents’ failure to cooperate with the local authority and by A’s removal from the jurisdiction. A was later returned, and B was born during the period when the family was in the United States. The central issues were the reliability of the parents’ evidence, the proper approach to alleged lies, the cause of A’s injury, and the parents’ future cooperation with the local authority.

1. The local authority bore the burden of proving the threshold criteria and the facts sought. The applicable standard was the balance of probabilities, as stated in Re B [2008] 2 UKHL 35.
2. The judge applied Articles 6 and 8 rights, recognising that where the child’s Article 8 rights conflicted with a parent’s rights, the child’s rights prevailed: Yousef v Netherlands [2003] 1 FLR 210.
3. The judge applied the revised Lucas direction. A lie could not, by itself, prove the primary case. The court had to consider whether there was a good or established reason for the lie. The judge also accepted the guidance in Re H C (Children) [2016] EWCH Civ 136, including that a lie is not direct proof of guilt and may only provide corroboration. The failure to prove an alternative account did not itself establish the local authority’s case, consistently with Re X (Children) (No 3) [2013] EWHC 3651 Fam and Re Y (No 3) [2016] EWHC 503 Fam.
4. The judge found that both parents had lied about material matters, including the events of 6 May 2017. Those findings were not treated as independently proving the local authority’s primary case. The court instead relied on the evidence as a whole.
5. A was a 72-day-old, non-ambulant child who had sustained a bruise above his right eyebrow while in the care of the mother and/or father. Neither parent offered an accidental explanation. The judge therefore found, on the balance of probabilities, that the injury was inflicted, without deciding which parent had caused it.
6. The parents had failed to cooperate openly with the local authority, concealed relevant movements and whereabouts, and sought to thwart its intervention. The father was found complicit, at least, in A’s wrongful retention in the United States. Both parents remained a flight risk, and the orders required to secure the children’s future welfare were left for a later hearing.