Birmingham City Council v M & Ors

In care proceedings, disputed allegations must be proved by the local authority on the balance of probabilities. The court must decide each allegation while assessing the evidence on the entire canvas, avoiding both speculation and compartmentalisation.

Where lies are alleged, the court should first determine whether the lie was told and then consider why it was told and what relevance it has to the issues. Guidance on Achieving Best Evidence is advisory. Departures may reduce the weight given to an interview, but they do not prevent findings where the evidence as a whole justifies them. Professionals may provide humane emotional support to a distressed child without that support necessarily undermining the evidence.

The local authority brought care proceedings concerning two children, AA and BB. The principal allegations were that their father had sexually abused two older half-sisters, TT and SS, and had behaved inappropriately towards their cousin, NN. Further allegations concerned physical chastisement and exposure to domestic abuse.

The mother and father denied the allegations. The court considered the children’s written accounts, ABE interviews and oral evidence, together with evidence from family members and professionals. The central issues were whether the allegations were proved, whether the mother had failed to protect the children, whether physical abuse had occurred, and what orders would meet the children’s welfare needs.

1. Findings of fact. The local authority bore the burden of proof. The civil standard applied. The court had to determine each allegation on the evidence, while considering the evidence as a whole and drawing logical inferences where appropriate.
2. Lies. Applying the approach in R v Lucas [1981] QB 720, the court first had to decide whether an alleged lie had been proved, distinguishing lies from mistake, confusion, memory failure and distortion. It then had to consider the reason for the lie and its relevance. A lie on one issue did not establish that the witness had lied on every issue.
3. ABE guidance. The guidance was advisory rather than legally enforceable. Significant departures could reduce the weight attached to an interview, but findings could still be made where the evidence as a whole justified them. The court should apply the guidance with humanity. It would be unrealistic and inhumane to require a person hearing a distressed child’s allegation to withhold emotional support merely to avoid the appearance of encouragement.
4. The court accepted the allegations of sexual abuse made by SS and TT, the inappropriate conduct towards NN, the father’s grooming and controlling behaviour, and the mother’s failure to protect the children. The court also accepted BB’s allegations of physical abuse. The evidence was assessed cumulatively, including the consistency of the accounts, their private contemporaneous notes, the children’s distress, and the credibility of the witnesses.
5. The court declined to determine the allegations of domestic abuse between the parents. In the circumstances, it was neither proportionate nor necessary to determine that part of the threshold for the purpose of deciding the orders.
6. Applying the welfare checklist in the Children Act 1989, the children’s welfare required care orders and continued placement in foster care for the foreseeable future. Contact was to remain twice monthly until the February 2024 review, with the local authority to consider sibling contact and the future frequency of parental contact.