BB (Care Proceedings) (Mid-Trial Dismissal and Withdrawal of Allegations)

to be applied, there is no dispute that the court has the power to order that which the Respondents seek.

I have come to the conclusion that the correct modern approach to this is to be found in the case of Re T G (Care Proceedings: Case Management Expert Evidence)[2013] 1 FLR 1250.

Paragraphs 24 to 28 are expressed in the typically trenchant language employed by the then President, Sir James Munby, and I have in particular in mind paragraph 27 where he says this:

"In this connection, that is to say dealing with evidence, I venture to repeat what I recently said in Re C (Children Residence Order. Application Being Dismissed at Fact-Finding Stage) [2002] EWCA Civ 1489. These are not ordinary civil proceedings, they are family proceedings where it is fundamental that the judge has an essentially inquisitorial role, his duty being to further the welfare of the children, which is by statute his paramount consideration. It has long been recognised, and authority need not be quoted for this proposition, that for this reason a judge exercising the family jurisdiction has a much broader discretion than he would in the civil jurisdiction to determine the way in which an application should be pursued. In an appropriate case he can summarily dismiss the application as being, if not groundless, lacking enough merit to justify pursuing the matter. He may determine that the matter is one to be dealt with on the basis of written evidence and oral submissions without any need for oral evidence. He may decide to hear the evidence of the applicant and then take stock of where the matter stands at the end of that evidence."

"The judge in such a situation will always be concerned to ask himself: Is there some solid reason in the interests of the children why I should embark upon, or having embarked upon, why I should continue exploring the matters which one or other of the parents seeks to raise? If there is or may be a solid advantage for the children in doing so, then the enquiry will proceed, albeit it may be on the basis of submissions rather than oral evidence, but if the judge is satisfied that no advantage to the children is going to be obtained by continuing the investigation further, then it is perfectly within his case management powers and the proper exercise of his discretion so to decide and to determine that the proceedings should go no further."

I venture with becoming diffidence to add one further paragraph from that judgment, I having been a member of the constitution, and just refer to some words that appear at paragraph 82:

"In a highly conflicted case where permanent removal and placement are serious possibilities, and that is increasingly the case with young children, it is only the judge upon whom the responsibility for case management should fairly rest. To leave it to the parties is to impose on them a burden potentially so onerous as to be unfair for especially on behalf of parents, no stone should be left unturned, however small it may seem. Of course, if that responsibility is to be discharged, it is essential both that the judge has had sufficient opportunity to master the case and also that judicial continuity is provided."

I cite that paragraph for two reasons. One, because it indicates that judicial case management is an art form rather than an application of scientific principles, and also because it seems to me that the court intended all its observations to apply right across family proceedings, even if the illustration in the language used by the President was actually taken from a private law case.

As I say, I have concluded that that properly represents the modern approach to case management and, accordingly, I am satisfied that the court does have jurisdiction to bring proceedings to an end at any time before the conclusion of the final hearing. I am satisfied that the combination of statute and rules give the widest powers of control of case and trial management to the individual judge.

"The general rule is that any fact which needs to be proved by the evidence of witnesses is to be proved (a) at the final hearing by their oral evidence and (b) at any other hearing by their evidence in writing."

"The protection of children in public law proceedings is primarily in the hands of other agencies, but when the case is brought into the judicial arena, the judge is an important partner in the process of child protection. Accordingly, it is incumbent on any judge to dig deep, as deep as is reasonably practicable, before arriving at the conclusion that there is no danger to the child and that the child's account of abusive experience is incredible, not to be believed. It is not a case in which the judge can say that the child is mistaken. A rejection of the local authority's case inevitably carries the conclusion that the child had made a false allegation against her stepfather. That outcome should not be reached without the judge having the best available evidence."

I accept the Local Authority’s submission that, in family case, there is an expectation that the parents, and others who have voluntarily intervened, will give oral evidence to answer the allegations raised against them. In Re I-A (Children) [2012] EWCA Civ 582, Etherington LJ said there is a “need for a particularly conscientious and detailed examination of all the evidence” in cases involving allegations of sexual abuse, including the evidence of those accused and any evidence of previous dishonesty by the children making the allegations. At paragraph 22, Etherington LJ said “In my judgment, it would have been right and proper, in a case of this kind where there was a requirement for a detailed and conscientious assessment of all the evidence in relation to each specific allegation, for each specific allegation to be put to the witness so that there was a possibility of refuting it in whole or in part or at any event providing more details”. In my judgment, the need for conscientious examination of all the evidence does not just apply to those aspects of the evidence that might support those facing allegations. It also, in my judgment, applies to the consideration of the Local Authority’s case and the allegations made by the children.

At the ‘half-time’ stage of a case, the Court has heard only part of the evidence. In my experience, the case of a Respondent can often be described as being at its height at the end of the Local Authority case as skilled cross-examination of the Local Authority’s witnesses can often appear to have undermined the reliability of the Local Authority’s evidence. However, save in exceptional circumstances, it is in my judgment the responsibility of the court to provide the Local Authority, and the children represented by the Guardian, with the same fair opportunity to cross-examine the Respondents as the Respondents have had to challenge the Local Authority’s evidence. This ensures the court is able to reach its conclusions on the basis of the best evidence. In my judgment the court should not readily reach a conclusion that cross-examination of a witness would serve no purpose. As described by Munby P in Re S-W [2015] EWCA Civ 27, at paragraphs 55 to 59:

“58.

... I am not suggesting that a parent has an absolute right to cross-examine every witness or to ask unlimited questions of a witness merely with a view to 'testing the evidence' or in the hope, Micawber-like, that something may turn up. Case management judges have to strike the balance, ensuring that there is a fair trial, recognising that a fair trial does not entitle a parent, even in a care case, to explore every by-way, but also being alert to ensure that no parent is denied the right to put the essence of their case to witnesses on those parts of their evidence that may have a significant impact on the outcome.

are here in play, there is great danger in jumping too quickly to the view that nothing is likely to be achieved by hearing evidence or allowing crossexamination, in concluding that the outcome is obvious. My Lord has referred to what Megarry J said in John v Rees. The forensic context there was far removed from the one with which are here concerned, but the point is equally apposite. As I said in Re TG, para 72:

"Most family judges will have had the experience of watching a seemingly solid care case brought by a local authority being demolished, crumbling away, at the hands of skilled and determined counsel."

In my judgment, these same principles must also apply to the Local Authority as they do to the Respondents. If the court is informed by the Local Authority, in this case an authority represented by Queen’s Counsel, that it has legitimate and forensically necessary questions to put to the Respondents, the Court should be very slow indeed to deny the Local Authority the opportunity it seeks. Of course, the Local Authority’s questions need to be more than a fishing expedition and be addressed to issues that the court must determine. As with any cross-examination, the matters upon which the questions refer must have some basis in the evidence before the Court. If there is no evidence, the witnesses can simply deny the suggestion and the matter goes no further.

In my judgment, the investigation of inconsistency and dishonesty by the cross-examination of family members is an essential part of the process in public law care proceedings. Much of what the court has to examine takes place behind closed doors. The Court is most often in the dark about what actually took place and has to piece together a picture of what is most likely to have occurred from the jigsaw pieces of evidence, pieces that come from many different sources available and from the different perspectives of each participant in the events being considered. In my judgment, the court should only deprive itself of this otherwise essential source of evidence where it can be satisfied that there is nothing that can be said by the witnesses that will inform its conclusions.

I accept the submission made by the Local Authority that the court will be assisted by hearing evidence from the Respondents, particularly from the parents concerning the sexual knowledge demonstrated by the children in the allegations that they have made. Asking the parents questions on these issues is not reversing the burden of proof. It is a legitimate enquiry to enable the court to understand what might be the sources of this knowledge. The parents may simply not know but, equally, the answers to such questions might provide the court with some insight into how this knowledge developed. The answers to this legitimate and necessary area of enquiry are as likely to assist the parents as the Local Authority.

Similarly, I agree with Mr Thomas that an exploration of the views of one mother as expressed in her police interviews may provide evidence of particular relevance. Why this mother seemingly accepted that her husband had sexually abused the children and, during her interview, threated to kill him as a result of that belief has obvious relevance to the court’s determinations.

In my judgment, the Court can only reach a conclusion that no court could safely make findings after having heard all the available evidence. The Respondents rely on the decision of the Court of Appeal in JB (A Child)(Sexual Abuse Allegations)[2021] EWCA Civ 46, and the decision by Baker LJ not to remit the case for a rehearing on the basis that the breaches of the ABE guidance were ‘on a scale that no court could properly make the findings of abuse’. The decision of Keehan J in Re EF, GH, IJ (Care Proceedings) [2019] EWFC 75 was also relied upon. At paragraph 286, Keehan J said “I am satisfied that the conduct of the police investigation by DC Andrews was so woeful and her conduct with the ABE interviews so seriously and serially breached the ABE Guidance that I can attach little or no weight to the allegations made by the boys and in those police interviews”. Both judgments are said to be illustrative of the likely outcome in this case, it being said that the breaches of guidance here are as bad, if not worse, than those in the aforementioned cases. However, the conclusions in JB (A Child)(Sexual Abuse Allegations) were reached on an appeal following a first instance trial hearing during which all the evidence had been heard. In his judgment in Re EF, Keehan J describes in detail his impression of the family witnesses and how hearing that evidence supported his ultimate decision that the allegations of the children were unreliable.

I accept that a judicial evaluation of the evidence is required for the 2 examples given by Sir Mark Hedley in AA v 25 Others. However, in my judgment the evaluation of the evidence that is required in this case is much more detailed than is appropriate to undertake at this stage of the case. An expert witness informing the court that an image on an X ray is not, as was previously thought, a fracture may remove from consideration all evidence of an inflicted injury having occurred. There is very little judicial evaluation required. That is a very different situation to the court having to consider each of the breaches of guidance alleged to have taken place and then trace through the chronology to assess how that breach has affected the reliability of the evidence that has come later. In my judgment the number of breaches highlighted by the Respondents does not reduce or remove the need for the court to undertake a detailed evaluation of all the evidence. The number of breaches in this case is closely matched by the number of allegations. What connection one has with the other, if any, is a matter requiring close examination that should, in my judgment, occur only once all the evidence has been received.

In my experience, where there are blanket denials of allegations of sexual abuse, the hearing of the evidence from those facing allegations can be a surprisingly quick exercise. If it is said that these events did not happen and are a product of a child’s imagination, the answers to questions are often a simple ‘it did not happen’. However, I have reached the conclusion for the reasons given above that there is a clear forensic purpose to hearing that evidence. The Respondents were present in both homes at times when it is said that these events were taking place. It is, in my judgment, essential that the court hears from them in response to the allegations that are made.

It may well be that in reaching my final conclusions, having heard all the evidence, that I will agree with the submissions now made by the Respondents. I may not. As I said during the hearing of the evidence, I accept that Family Court judges are expressing views about the reliability of the evidence they hear on a daily basis, both at the case management stage of proceedings and during the hearing of the evidence in trial. A ‘judicial steer’ to the Local Authority is an integral part of the Family Justice system that helps to ensure the appropriate use of the court’s resources. In the circumstances of this case, I have required the Local Authority to keep its case under review but I take the view that any further ‘steer’ is unnecessary as Mr Thomas is aware of the difficulties now present in the case he advances on behalf of the Local Authority. I have reached the clear conclusion that it would be inappropriate for me to express any view concerning the consequences of the breaches of guidance on the ability of the Local Authority to prove its case. My conclusions can only be reached after a careful examination of all the evidence and for the reasons given above, I will not make any determinations until after the Local Authority has had an opportunity to ask questions of the Respondents.

The Exercise of Case Management Powers to Exclude certain allegations fromFurther Consideration

In November 2020, the findings schedule filed for this hearing contained 90 allegations. At a case management hearing listed in December 2020, I expressed the view that a number of the allegations appeared to the court to be unnecessary for determination as the outcome would have limited relevance to the welfare determinations that might need to be made in the future. A further case management hearing was fixed for 14 January 2021. By that date I had read a great deal of the evidence in the bundle and gave the Local Authority clear indications concerning the matters that I viewed as necessary determinations in the proceedings and those that I did not. Mr Thomas made submissions to the court seeking to justify the presence in the findings schedule of some of the matters that I had referred to as unnecessary. It is right to record now that my reading between the hearing in December 2020 and the hearing in January 2021 had assisted me to understand the reasons why the Local Authority persisted with some allegations that appear to be more peripheral.

On 18 January 2021, the Local Authority filed a further findings schedule. Many of the allegations had been amended but only 4 of the allegations had been removed. I accepted the amendments and the limited redactions and the trial commenced.

On 25 February 2021, following the Local Authority’s review of its case, a further schedule was filed. 18 allegations have been removed from the schedule. I will consider below the evidential consequences of those allegations not being pursued by the Local Authority. However, the Respondents submit that the Local Authority’s review of its case does not go far enough and they submit that the court should exercise its case management functions, following the guidance given by MacFarlane J, as he was then in A County Council v DP, RS, BS (By the Children’s Guardian) [2005] 2 FLR 1031. That decision was considered by the Court of Appeal in Re F-H (Dispensing with Fact-Finding Hearing) [2008] EWCA Civ 1249. The Court of Appeal endorsed the approach taken by MacFarlane J as the correct framework for deciding whether to determine disputed allegations:

“[26] There is no doubt that in family proceedings the court has a discretion whether to hear evidence in relation to disputed matters of fact with a view to determining them. In A County Council v DP and Others [2005] EWHC 1593, [2005] 2 FLR 1031, McFarlane J, at para [24], helpfully identified, by reference to previous authorities, nine matters which the court should bear in mind before deciding whether to conduct a particular fact-finding exercise. I have no doubt that, notwithstanding that in the present case a decision had been made in the exercise of such a discretion to arrange for the disputed facts, in relation in particular to the allegations against A, to be determined at the hearing fixed to begin on 7 April 2008, Her Honour Judge Hughes also even at that stage retained a discretion to decline to conduct it. Nevertheless, in my view additional considerations fall to be weighed by a judge who is considering, at the outset of a prearranged fact-finding hearing, whether in effect to abort it. That judge should weigh, with appropriate respect, the previous decision that the exercise should be undertaken and should ask whether any fresh circumstances, or at least any circumstances freshly discovered, should lead her or him to depart from the chosen forensic course. Equally she or he should weigh the costs already incurred in the assembly of the case on all sides and the degree to which a refusal at that stage to conduct the hearing would waste them. Furthermore, she or he should weigh any special features such as, in the present case, the facts that a girl then aged 16 had been shown the court room, that she had participated in discussions with the guardian as to the way in which she would prefer to give evidence and that she was thus expecting that she would imminently be giving oral evidence in some way or another, although the judge should not on the other hand ignore the girl's likely apprehension at that prospect. What needs, however, to be avoided at all costs is a sudden decision to abort a hearing in circumstances in which, later, the findings not then made might after all be considered to be necessary. So, a judge in the position of Her Honour Judge Hughes on 8 April should in my view act most cautiously before putting the forensic programme into reverse”.

At the commencement of this hearing, I agreed that it was necessary and proportionate for the Local Authority to pursue the findings that remained in

It is crucial in case as complex as this that the court is able to assess all the evidence relating to all of the allegations as a whole. As is recognised by the Local Authority, some of the allegations may not be proved on the evidence before the court. In my judgment an unreliable allegation is as important to the court’s consideration of the facts in this case as those allegations the Local Authority asserts to be reliable.

It is the function of the court to survey all the material available to reach a decision. Having permitted the case to proceed on allegations that, it is submitted were weak from the outset and so weak say some to obviate the need for witnesses to be called to face cross-examination, I can see no advantage to the fact-finding exercise but many disadvantages to now removing those aspects of the case from consideration. How the evidence on one issue might fit together, or not, with the evidence given on other issues remains to be seen.

During the oral submissions all advocates expressly, or by stealth, avoided inviting the court to express a view on the evidence. As I have described above, Family Court judges express views about the evidence they hear, or are to hear, as a necessary pre-cursor to the case management decisions that they make. I have given no indications of my views other than to invite the Local Authority to keep its case under review. At the stage these proceedings have now reached, I have concluded that all that is now required is for me to hear evidence from the Respondents on the allegations that the Local Authority still seeks to prove. To do otherwise requires the court to assess the detail of each allegation, the evidence both for and against and decide whether it can now be said that the evidence is so weak as to require the Local Authority to again justify why the court should hear further evidence. That is a hugely timeconsuming exercise and should now only be undertaken once all the evidence has been heard.

I have received very detailed and helpful written submissions from the Respondents addressing what they say are the weaknesses in the Local Authority’s case against each Respondent. The Local Authority did not engage with the detail of those submissions in its responses. As a result, I will have all those alleged weaknesses in my mind as I hear the remainder of the evidence in this case without concurrent knowledge of the Local Authority’s response.

The Evidential Consequences of the Local Authority’s Proposed Withdrawal ofAllegations

In Re A (A Child) (No 2) [2011] EWCA Civ 12 Munby LJ, as he was then, described the fact-finding exercise as follows:

“…the purpose of a fact-finding hearing in the Family Division is to give the judge the essential factual platform upon which to build his further 'welfare' findings as he decides – as he must – what form of final order is in the best interests of his ward. Should the ward live with the one parent or the other, or perhaps with someone else in the wider family? Should the ward have contact with the other adults? If the guiding principle of law is that the interests of the ward are paramount (section 1 of the Children Act 1989), the determination in any particular case of what is in the best interests of this child necessarily involves an intense and anxious scrutiny of all the relevant circumstances. The task can often appear daunting even to the most experienced judge. And, as any judge who has had to conduct such fact-finding hearings will know all too well, wading through a mass of evidence, much of it usually uncorroborated and often coming from witnesses who, for whatever reasons, may be neither reliable nor even truthful, the difficulty of discerning where the truth actually lies, what findings he can properly make, is often one of almost excruciating difficulty. Yet as Baroness Hale of Richmond tartly observed in Re B [2009] 1 AC 11, para [31], "it is the task which we are paid to perform to the best of our ability." The task, as she acknowledged, is a difficult one, to be performed without prejudice and preconceived ideas. Judges, as she explained, "are guided by many things, including the inherent probabilities, any contemporaneous documentation or records, any circumstantial evidence tending to support one account rather than the other, and their overall impression of the characters and motivations of the witnesses."

It is of course trite law that the Family Court must treat allegations not proved to the required standard as not having happened. However, the binary system’ that applies in the court does not, as a matter of fact, always apply in the community or with all professionals. Although the legal consequences are the same a ‘not proved’ conclusion is not always treated in the same way as a finding that the allegation is not, and never was, true.

The distinction between the 2 outcomes was considered in Re A, where Munby LJ said the following:

“…notwithstanding the 'binary system' explained by the House of Lords in In re B (Children) [2008] UKHL 35, [2009] 1 AC 11, para [2] (Lord Hoffmann) and para [32] (Baroness Hale), it may be relevant at the subsequent 'welfare' hearing to know, and thus for the judge as part of his fact-finding to record, whether a particular matter was not found proved because the judge was satisfied as a matter of fact that it did not happen or whether it was not found proved (and therefore in law is deemed not to have happened) because the party making the assertion failed to establish it to the relevant standard of proof but in circumstances where there is nonetheless continuing suspicion. It is of course a cardinal principle that at the 'welfare' or 'disposal' stage, as at any preceding fact-finding hearing, the court must act on facts, not on suspicions or doubts; for unproven allegations are no more than that: see the analysis by Baroness Hale in In re B (Children), following and declining to overrule what Butler-Sloss LJ had said in In re M and R (Minors) (Abuse: Expert Evidence) [1996] 4 All ER 239, page 246, and the obiter dicta of Lord Nicholls of Birkenhead in In re O and another (Minors) (Care: Preliminary Hearing), In re B (A Minor), [2003] UKHL 18, [2004] 1 AC 523, para [38].”

The Local Authority now seeks to withdraw a number of allegations from consideration, adding a 3^rd label to ‘proven’ and ‘unproven’, that of the ‘undetermined’. The Local Authority submits that an undetermined allegation cannot be relied upon as evidence of truth or fantasy. It is simply put to one side and ignored. The Respondents submit that such an approach is in all but name a reversal of the burden of proof and is an impermissible approach when considering the long-established principles of fairness within which Local Authorities must operate.

As set out in Kent County Council v A Mother [2011] EWHC 402, a Local Authority has a duty to the court and parties to give full and frank disclosure. That duty includes disclosure of any documents, which (i) adversely affect its own case; (ii) adversely affect another party's case; or (iii) support another party's case. In conducting their preparation for the hearing, the Local Authority has to carry out a proper examination of the background material, including relevant files held in the social services department in order to comply with obligations as to disclosure and to assist in the preparation of statements of evidence.

The requirement of fairness is, in care proceedings, a necessarily high one to ensure the correct decisions are made and children are not wrongfully removed from the care of their families. In my judgment, where the Local Authority relies on allegations made by a child in circumstances where there is no other evidence to support the allegations other than the account given by the child, the responsibility to act fairly is all the more important. In such circumstances it is, in my judgment, incumbent on the Local Authority to present its case fairly by putting before the court the evidence that supports the conclusions it invites the court to reach but also highlighting the evidence that points the other way. This is what is required by the decision in Kent County Council v A Mother [2011].

What would be the purpose of requiring the Local Authority to provide all relevant evidence if, having done so, the Local Authority can then choose to ignore the evidence that undermines its case and proceed with the evidence that is supportive of its position? The Local Authority submits that, once it has abandoned an allegation, the burden falls on the Respondents to prove that an allegation is untrue. The logical extension of that submission is that where required, it will be necessary for a Respondent to call the evidence not relied upon by the Local Authority for the Respondent to discharge the burden that, it is submitted then falls to them.

A Family Court judge can, as a case management decision, require the Local

In these proceedings, the lawyers instructed combed through the evidence produced by the Local Authority. Witnesses whose evidence might have an impact on the assessment of the child’s credibility were identified and the parties notified the Local Authority of those witnesses required to give oral evidence. The Court approved the witness requirements. The witnesses were called by the Local Authority and then cross-examined by the parties, that cross-examination aimed at drawing out for the attention of the court the evidence that impacts on the credibility of the children making allegations.

The Court having required the Local Authority to call evidence that might undermine its case, or part of it, it is not in my judgment then open to the Local Authority to seek to avoid the consequences that might follow the hearing of that evidence by removing from consideration the allegations that same evidence has then undermined. It perhaps need not be said that a finding of unreliability on allegation A falls to be considered by the court when assessing the reliability of allegation B. As I have already said on a number of occasions in this judgment, the court must survey all the relevant evidence in reaching its conclusions.

In Re M-Y (Children) [2018], McCombe LJ was of the view that the credibility of the child concerning the allegations against her mother of assault and her credibility when making allegations of sexual abuse against her mother’s partner were “enmeshed” with each other. I have not yet heard all the evidence in this case to enable such a determination to be made but on the evidence already heard in this complex case, it is likely that the Respondents will submit that all the allegation evidence is very much interlinked.

In undertaking its review of the evidence, the Local Authority have now reached conclusions on certain allegations that it expresses in the following way:

“This, and the allegation relating to abuse by strangers, as it seems to us, might reasonably be expected to be bolstered by corroborative evidence. We have made the point. Its absence causes us to doubt that we will prove it. In taking that view, we do not concede that the allegations are false, only that the evidence in of them makes it unlikely that we would prove them.”

And

“We accept that our application to delete this recognises its inherent improbability. In saying that, we do not make any concession about its veracity.

It is not for the LA to determine truth or otherwise. We were asked to reflect; we have done so; and we consider that we are unlikely to prove it. “

I accept there may be a perceived tension between only pursuing allegations that are absolutely necessary to inform welfare decisions and the advancement of allegations that are unlikely to be proved. However, it is necessary for the court to consider all the evidence that is likely to have a bearing on the court’s assessment of the children’s reliability. In this case the assessment of the children’s credibility is, to use the words of McCombe LJ, the ‘essence of the factual assessment to be made’. The evidence relevant to credibility is thereby of central importance and falls squarely within those matters that must be determined and is fully complaint with the expectations of ‘The Road Ahead 2021’.

In my judgment, in the circumstances of this case where there is perhaps now less than 10 working days until all of the oral evidence will be completed, there is no place for ‘undetermined’ allegations. The allegations pleaded by the Local Authority have been before the court since the first detailed findings schedule dated 27 February 2019. As these allegations were pleaded, and the Respondents directed to file replies, all Respondents have provided statements that contain a statement of truth. Those statements are evidence before the Court. In my judgment the Local Authority must decide whether it will challenge those statements or accept the content of them.

In simple evidential terms, evidence that is not challenged is to be treated as accepted. At §12.12 of Phipson on Evidence provides:

“In general a party is required to challenge in cross-examination the evidence of any witness of the opposing party if he wishes to submit to the court that the evidence should not be accepted on that point…The rule applies in civil cases as it does in criminal.

This rule serves the important function of giving the witness the opportunity of explaining any contradiction or alleged problem with his evidence. If a party has decided not to cross-examine on a particular important point, he will be in difficulty in submitting that the evidence should be rejected”.

When considering this issue within the context of a sexual abuse fact-finding hearing, at paragraph 16 of I-A (Children) [2012] EWCA Civ 582 Etherington LJ said:

“That answer was not the subject of cross-examination at all and so effectively was conceded”.

There are circumstances that can arise when there is no unfairness if a witness is not cross-examined on a particular issue, particularly on matters that may not have appeared so central at the time a witness was giving evidence, as described by Peter Jackson LJ in B (A Child) [2018] EWCA Civ 2127, but that situation is not comparable with the facts of this case.

In my judgment, there are 2 courses of action open to the Local Authority. The first would be to continue to pursue the allegations pleaded in the schedule at 3, 12, 13, 27, 30, 61, 86(i) and 90. The unconnected non-sexual allegations can be withdrawn. The Court will then determine those important sexual allegations alongside all the others. The Court will attach such weight as is appropriate when considering the overall evidential picture. The alternative course would be for the Local Authority to accept that it can no longer prove the allegations and concede that those allegations are unreliable and examples of the children making untruthful accusations. Of course, the Court must be alive, as I am on the facts of this case, to the cautions outlined in Re H-C (Children) EWCA Civ 136, and R v Lucas [1981] QB 720, that a witness may for many reasons tell lies about one issue but still be reliable on another.

The Family Court operates on a binary system. As set out inRe B(Children) [2008] UKHL 35 at [2], Lord Hoffman described the burden and standard of proof in this way:

The Local Authority seeks to draw a distinction between reliance on an allegation that is treated as not having happened by want of proof, to an allegation that has been found to be untrue. In my judgment that distinction is an appropriate one to make, as seeking a positive finding that an allegation did not happen places an evidential burden on the Respondents, although the burden of proving its allegations rests at all times on the Local Authority.

When addressing the issue of ‘exoneration’ in AA v 25 Others, Sir Mark Hedley described, at paragraph 266, the approach to be taken as follows:

“This matter has been considered in reported cases cited to me. I am not consciously acting differently to how the matters have been dealt with in those cases, even if I express myself individually.

I should make it clear that the legal consequences of exoneration are no different to those where the court has simply declined to make a finding. That is clear from the binary approach adopted by the House of Lords in Re B: “if abuse is not proved against a named person, then it must for all purposes be treated as not having happened. Any such person is not and must not be treated as being left under a cloud of suspicion”.

For the reasons which appear in the preceding part of this judgment, that is particularly important in this case.

So, what is the test for exoneration? All parties agree that it is more than simply a finding that a specific allegation has not been proved against them. I suggested an analysis that whilst the legal burden of proof at all times remains on the local authority, a party seeking exoneration assumes an evidential burden to satisfy a court of their innocence on a balance of probabilities. No one sought to suggest that was wrong nor to argue for any particularly different approach.”

I have been referred to no authorities addressing how this court should approach the dispute between the parties on this issue. Is a withdrawn and undetermined allegation simply to be ignored? Is it to be taken into account when surveying the broad canvass of evidence and the weight it should attract only being decided within that exercise or should the allegation be treated as untrue to enable those facing allegations to point to it as an example of dishonesty or fantasy by the children?

In answering the above, I am influenced by the late stage these proceedings have now reached, the denials contained in the witness statements before the court and the potential prejudice to the Respondents, and to the Court’s own decision making, by adopting any approach other than the last. To do otherwise allows a Local Authority to withdraw from consideration potentially important credibility evidence. That would prejudice the fact-finding exercise and endanger the fairness of the proceedings. If the Local Authority wishes to withdraw the allegations on the grounds that they cannot be proved, to prevent the Respondents from relying on those allegations as being unreliable would be profoundly unfair.

If the Local Authority does not concede the allegations to be false, in my judgment, the most appropriate course of action is to continue to hear the evidence on all the sexual allegations to ensure that the court is able to consider all matters of relevance and within that exercise assess the credibility of all the sexual allegations alongside each other. On behalf of the Local Authority, Mr Thomas informed the Court that the Local Authority would continue to ‘prosecute’ the findings if the Court so required.

I accept that my decision will lead the Local Authority to review the position it had taken concerning the one allegation pleaded against the stepson. If the Local Authority choose not to cross-examine the stepson and his mother, I shall treat the content of their statements as accepted. If the Local Authority takes the view that those statements should not be accepted, it will need to reconsider its decision to withdraw those allegations.

During the hearing of oral submissions some advocates addressed, at my invitation, the factors that the court might take into account in determining whether it would be appropriate for any Respondent to be compelled to give evidence. Having now reached the decision that the Court will be assisted by hearing oral evidence from all of the Respondents, except Mr Brown’s client, I hope that I will not need to consider making orders to require compliance. Should that be necessary, I will need to assess the reasons given for the refusal.

Whether any adverse inferences might be drawn can, in my judgment, only be assessed at the time any refusal to give evidence occurs and with knowledge of the reasons why the witness is resistant.

The advocates before me have searched for case law that might provide some guidance to the Court regarding the factors it should consider if invited to compel a party to give evidence in the Family Court. I have been referred to the decision of Hale LJ at paragraph 31 of Y v K [2003] EWCA Civ 669 where the following observation is made concerning when a court might not compel a party to give oral evidence:

“although there remains a residual discretion in the court to refuse to compel a compellable witness if to do so would be a fishing exercise, speculation or oppression. This will rarely be the case in care proceedings where the parents' explanations of what has happened to their child are usually an important factor in understanding the case.”

It is my expectation that all those Respondents able to do so will give oral evidence to assist the Court.

Postscript

Although I have refused the applications to dismiss the proceedings at this half-way stage, I do not criticise the Respondents for pursuing those applications. I understand, from the detailed schedules and written submissions received, why it has been submitted ‘if not on the facts of this case, when?’ My refusal to accede to the application provides a further example, if one was needed, of how exceptional the circumstances must be for the court to use its power to dismiss care proceedings without having heard all the evidence.

That is my judgment.