H (Children: Uncertain Perpetrator: Lies), Re

In family fact-finding, admitted or proven lies form part of the totality of the evidence. The judge must assess their relevance and weight after considering any explanations. There is no general rule requiring a lie to be ignored unless guilt is its only possible explanation. A tailored Lucas direction may be appropriate where the outcome critically depends on a particular lie, but it is not generally required.

Where injuries were inflicted but the evidence did not identify which of two possible perpetrators was responsible, the judge was entitled to assess each separately on the balance of probabilities and leave both in the pool. A fact-finding judgment need not address every item of evidence expressly if, read as a whole, it performs the necessary analysis.

Care proceedings concerning three children followed injuries to the youngest child, including bruising and fractures. The Family Court at Chelmsford found that the injuries were inflicted and excluded the father and eldest child as perpetrators, but could not decide whether the mother or her partner was responsible. Both adults had lied during the investigation and neither was reliably truthful.

The mother appealed on grounds concerning the treatment of lies, the approach to an uncertain perpetrator, and the weight of the evidence against the partner. The central issues were whether the judge had analysed the lies and competing evidence adequately, and whether she was required to identify one perpetrator.

Lord Justice Peter Jackson gave the judgment, with Lord Justice Moylan agreeing.

1. Disposition. The appeal was dismissed. The proposed challenge inviting the Court of Appeal to substitute a finding against the intervenor was not pressed. In any event, if the appeal had succeeded, a rehearing rather than substitution would have been required.
2. Lies in fact-finding. The judge was required to assess the totality of the evidence and was entitled to treat the lies as significant within that overall assessment. The lies were not used as direct proof of perpetration. They helped explain why the judge could not identify a single perpetrator. The approach was consistent with Re T [2004] EWCA Civ 558 and Re U, Re B [2004] EWCA Civ 567.
3. The purpose of the Lucas direction is to ensure proportional assessment of lies. The guidance in Re H-C (Children) [2016] EWCA Civ 136 and Re A, B and C (Children) [2021] EWCA Civ 451 did not create a general exclusionary rule. Where the outcome critically depends on a particular lie, a tailored direction may be appropriate. In the ordinary case, it is sufficient to assess the lie’s relevance, significance, weight and any explanation. A lie may be considered for another good reason even where guilt is not its only possible explanation.
4. The judge was therefore entitled to consider the health-visitor deception and the false separation maintained by both adults. She was not required to ignore those matters. The underlying discipline that lies must not hijack the case, identified in Re Y [2013] EWCA Civ 1337 and Re K (Children: Placement Orders) [2020] EWCA (Civ) 1503, also applied to fact-finding.
5. Uncertain perpetrator. The judge had to consider each possible perpetrator separately and decide whether responsibility was established on the balance of probabilities. She was not required to strain to identify one perpetrator. Her methodical judgment, read as a whole, adequately analysed the competing evidence. The conclusion that both adults remained in the pool was plainly open to her and could not be disturbed on appeal. The approach in Re B (Children: Uncertain Perpetrator) [2019] EWCA Civ 575 and Re A (Children) (Pool of Perpetrators) [2022] EWCA Civ 1348 was applied.

• Court of Appeal (Civil Division) — [2024] EWCA Civ 1261. Appeal dismissed.
• Family Court at Chelmsford — Her Honour Judge Shanks conducted a seven-day fact-finding hearing and, on 12 July 2024, found that the injuries were inflicted but could not identify whether the mother or intervenor was responsible. Both were placed in the pool of perpetrators. Welfare proceedings continued.