A, B And C (Children), Re (Rev 1)

A lie may support other evidence in family fact-finding proceedings only where the court is satisfied that it was deliberate, concerned a significant issue and lacked any explanation consistent with innocence. The lie cannot itself prove guilt. Any self-direction must be tailored to the witness and the evidence.

The threshold for a care order requires a logical connection between the facts proved and significant harm, or a likelihood of such harm. A parent’s imperfect or ill-advised response does not justify predictions of future failure without an evidential foundation. Serious Family Court findings require forensic rigour, although the standard remains the balance of probabilities.

The Family Court found that D, a juvenile intervenor, had sexually abused A and that H, A’s stepfather and the father of B and C, was likely to fail to protect the children from future abuse and cause significant emotional harm. The findings against D depended materially on five alleged lies. The findings against H arose from his inappropriate initial response to A’s disclosure.

D appealed because the Recorder had not properly applied the principles governing reliance on lies. H separately challenged the conclusion that the threshold conditions under the Children Act 1989 were satisfied. The central issues were whether the Recorder’s treatment of D’s alleged lies rendered the abuse findings unsafe and whether the facts found against H could support the threshold conclusions.

1. Both appeals were allowed unanimously. The findings of sexual abuse against D were set aside and remitted for rehearing before another judge. The threshold conclusions against H were set aside, and the welfare hearing concerning B and C was directed to proceed promptly.

2. A lie may support other evidence only if it is shown by other evidence to be deliberate, relates to a significant issue and lacks an explanation which does not point to guilt. Even then, the lie cannot itself prove guilt. The same approach applies in the Family Court: Re H-C (Children) [2016] EWCA Civ 136 applied.

3. A Lucas self-direction is unnecessary in every disputed family case and should not be inserted mechanically. Where reliance on lies is proposed, good practice is to identify the alleged deliberate lies, the significant issues to which they relate and the basis for concluding that guilt is their only explanation. The analysis must be tailored to the particular witness and circumstances.

4. The Recorder’s four stated reasons did not logically demonstrate that D’s alleged lies arose from guilt. They relied on demeanour, placed excessive significance on the wording of a denial, involved speculation and failed to connect the alleged lies with guilt. Because the lies materially tipped the balance in the Recorder’s decision, the defective reasoning vitiated the abuse findings. Serious Family Court findings remain governed by the balance of probabilities but require forensic rigour comparable to that employed in criminal proceedings.

5. The threshold findings against H overreached the facts proved. His immediate response was inappropriate and insufficiently child-centred, but there was no evidence that it caused significant harm before the children were removed. Nor was there a logical basis for predicting that he would fail to protect the children from abuse by another person in future.

6. Courts must not assess parents against a model of perfection. Nearly all parents are imperfect in some respect. H’s subsequent conduct and parenting capacity remained relevant to welfare, but they could not repair a premature and unsupported threshold conclusion.

• Court of Appeal (Civil Division): In [2021] EWCA Civ 451, unanimously allowed both appeals, set aside the challenged findings and remitted the allegations against D for rehearing before another judge.
• Family Court at East London: Recorder Posner found that D had sexually abused A and concluded that the statutory threshold was crossed in relation to H, B and C. The judgment gives no neutral citation for that decision.