A (A child) (Care Proceedings: Finding of Fact), Re

The court is concerned with Child A, a little girl born in 2024.. She is the daughter of AB, who is 20 and CD who is 12 years older than AB.

The Local Authority seeks a care order in relation to Child A because it is concerned about the risks of sexual harm posed to her by CD. It is also concerned about AB's ability to evaluate and guard against such risks.

In addition Lara complains that she was exposed to stepdaughter pornography, discussions about sex, pornography and sex toys, and also that CD tried to video her whilst he was abusing her. The timeframe for her allegations is from 2009 when Lara was attending primary school, to May 2022.

In May 2022, Lara reported her complaints to the wellbeing officer at her school. CD stands charged with criminal offences as a result of Lara's complaints. Evidence has been properly disclosed and shared between the agencies involved with both the family and criminal jurisdictions, although this has been an arduous and fraught process at times.

The Local Authority and Child A's Guardian asks that the court makes the threshold findings as pleaded at A35 to A36 of the bundle.

Mother seeks to adopt a position of neutrality in relation to the allegations against CD, and denies that her own conduct as at the relevant date could, or should, lead to a conclusion that she would fail to protect Child A in the future. If findings are made against CD, she will end their relationship, and will prioritise Child A.

Child A has remained in her care since the commencement of these proceedings, and the child protection plan has been adhered to. The parents live separately, and Child A's contact with her father is supervised by the Local Authority.

Father made some concessions as to his interest in pornography, as set out in his response to the schedule of search terms and entries. He denies each of the threshold allegations, and maintains he has never acted in a sexually inappropriate way towards Lara. He also denies accessing pornography which indicates any interest in teenagers or stepdaughter/stepfather, sexual acts. He cannot account for such searches on his devices, but maintains it was not him that conducted them.

The parties are represented as follows:

I have case managed the proceedings throughout, and this case has required more than the usual number of case management hearings.

The agreed chronology will be appended to the unredacted version of this judgment, not least because it will reduce the number of references I need to make to pornographic search terms.

The witnesses I heard from were:

The legal principles to be applied by this court are uncontroversial. To assist the parties I have summarised them into a separate document which will be annexed to the transcript of this judgment.

By way of (brief) background, CD met and began a relationship with EF, Lara's mother, in 2012 when Lara was 2 years old. He became Lara's father figure, and in 2015 EF and CD married. Child 3, Lara's brother, was born in 2016.

Lara was at a local Primary school, but in January of 2020 her physical attendance at school reduced due to concerns that she was being bullied. This was during the same year she alleges that CD began to sexually abuse her.

In September she moved to a High School, but the issues of bullying persisted. Lara received support from CD around the bullying issues, but school advised him to take Lara to the GP for additional support. Lara was removed from school, and was home schooled for a period.

Although she returned to that High School at times, her school attendance was poor, and the bullying persisted. Lara was moved to another High School.

In April of 2022 Lara's great maternal grandmother was terminally ill, and so Lara's mother had to visit her in hospital. EF left the children at home with CD as she had to go to hospital in the early hours one morning in April 2022. Between 3 am and 4 am multiple searches were conducted on CD's phone, which included search terms such as "father fucks young stepdaughter". CD was left caring for Child 3 and Lara until their mother came back that afternoon, and EF was at home between 2 to 6 pm.

EF then went back to the hospital until 9 am the next day, which is the day her grandmother died. Whilst EF was at hospital, further internet searches were made on CD's phone and iPad, including at 6.13 pm a 14-minute video with the following title: "Stepfather stepdaughter schoolgirl to fuck so as not to punish her for being late".

On 4 May there was a further search on CD's devices via Pornhub using the terms, "It"+won't+fit".

On 9 May Lara made the complaints to the school wellbeing officer, which resulted in a criminal investigation and charges.

The primary evidence in this case comes from Lara herself, through her police interviews and also through her evidence to this court. Lara spoke to some of her friends about what was happening to her at home, firstly when she was at her first high school but then later at the second school. These individuals have been interviewed by the police. None of them is able to provide any direct evidence which corroborates abusive acts, but their evidence adds to the overall canvas as to what Lara was saying to others before she made an official complaint.

Three have provided witness statements for the Children Act proceedings. None of them are required to give evidence in the forthcoming criminal trial. All of them were in their GCSE year, and engaged in exams and coursework. Apart from Lara’s friend 1, none of them wanted to come to court to give evidence. In the case of Lara’s friend 1 I suspect that she too did not want to come, but was prepared to do so if I deemed it necessary and proportionate. On balance and by a narrow margin, I considered that if any of Lara's friends was able to assist the court, Lara’s friend 1 was the most likely candidate. She was also the friend which CD's legal team were most anxious to question.

My reasoning for that decision was that none of the five child witnesses were direct witnesses of fact in relation to the allegations of abuse. They would be attending court to recall conversations that took place three years ago, when they did not have any contemporaneous records. Lara’s friend 1 did at least have some text and social media exchanges. CD could not challenge their accounts as to what was said, as he was not present at the time. His legal team might have sought to undermine their evidence, but the accounts they gave to the police were given in either June of 2022 or February of 2024. Those accounts were more likely to be reliable, and fuller.

The court also has ample evidence before it as to Lara's general demeanour and presentation, and is in a position to reach its own views after seeing her police interviews and direct evidence. These witnesses were unlikely to assist in that respect.

The representatives for CD were able to challenge Lara herself about anything that she is alleged to have said to her friends.

Finally, the impact of calling all five of Lara's friends was disproportionate when applying the overriding objective, and was likely to cause further harmful delay to Child A's proceedings. All parties have a right to a fair process, and the application to adjourn this fact find so that another four child witnesses could be called was lacking in merit.

In a case where father has delayed responding to threshold documents, yet has urged this court to proceed to determine issues without further delay so that he could be reunited with his partner and child as soon as possible, his request to call further evidence and to adjourn the trial dates was difficult to comprehend.

On 9 May, Lara's complaints became known to the authorities. She had attended school that day and told her friends (Lara’s friend 2 and Lara’s friend 3) that her stepfather made her do things for his sexual gratification and that one time she got raped. Her friends were concerned about Lara that day as she looked really worried. Lara was reluctant to tell her mum, as her mum loved CD.

Lara then went to see the wellbeing officer at her school, and complained about her stepfather's behaviours at home. She told the welfare officer about actions he had taken and made her take. Lara was upset and tearful but went on to say, "He tried to rape me once, but I was asleep. I woke up and said, 'What are you doing?', and he just stopped".

Earlier that day Lara told Lara’s friend 3 that CD was going to hurt her if Lara refused to do what he said. Lara’s friend 3 did not wish to give evidence in these proceedings, but has cooperated with the police investigation.

That same day there was a joint visit by two Detective Constables and a social worker. Lara complained that CD was touching her in inappropriate places without her permission. She said that one night he had gone into her room and tried to rape her, and that he also forced her into sexual acts..

In her initial account to the police, Lara was still on school premises, and was not supported by her mum or an intermediary. She explained that part of her account meant he asked her to masturbate him. CD was usually on the bed, and forced her over, grabbed her wrist and did not let her leave the room. Her account is recorded at G121 to 127.

Based on that account CD was arrested, and Lara's mother was informed.

On 12 May 2022 Lara engaged in her first investigative interview. She was not supported by an intermediary or a social worker within the interview room. Lara complained of sexual assault, inappropriate conversations about sex, and CD watching pornography on his phone and in her presence for the first time.

These are not inconsistencies in her account but part of the forensic investigative process. Her account and the manner in which she gives it is cogent, credible and compelling. Her complaints are rooted in time, and linked to factual events, such as her attendance at Primary School, when she was in Year 6; the initial assault she complains of is described in some detail; and she describes CD talking with her and asking really uncomfortable questions, such as, "What do you think of my penis? Have you ever seen one before?", and, "What would you do if you saw one?"

The assault Lara complains of occurred in the context of CD having been a kind, caring and supportive stepfather, who was really good with Child 3 and her mum. Lara spoke of an incident in around September of 2020, when she was anxious about transferring to Year 7 in High School. CD comforted her, which was not unusual, but then she complains he moved his hand under her top, and touched her breasts whilst telling her it was going to be okay, and that she would do well at school.

Lara gives a vivid description of CD watching pornography on his phone, and masturbating himself on other occasions when he is in the bedroom, and her mother is downstairs or out. She clearly understands what he is doing, and complains that he would then involve her Initially Lara was naïve but, as she got older, she says she understood it was really wrong, but she felt pressured and forced to do it. This added to and compounded her anxiety, in her view.

Her description of what happened to her about twice a week is extremely graphic and compelling. Lara says that she did not tell her mum because her mum was madly in love with CD.

The last complaint in time is that on 5 May CD again asked her to show him her boobs and vagina whilst he was watching pornography. He then asked her to perform sexual acts But Lara refused, and left, because she did not want it to happen anymore.

Her sexual naivety is clear when she explains what she understands certain terms to mean. . Lara's account goes on to include a complaint of attempted penetrative sexual intercourse in January of 2022. Lara had been removed from High School in December, and the plan was for her to be home schooled. In late January and early February of 2022 there were Pornhub searches on CD's devices, which include "step+dad+fucks+step+daughter".

Lara's complaint describes a scenario where she is anxious, exhausted and unable to sleep. She stays downstairs with her mother until 3 am, then goes up to bed, CD comes up, and comes into her bed, comforting her, and touching her inappropriately. She falls asleep but wakes to the sensation of his penis touching the skin of her left buttock. CD was behind her, effectively "spooning" her ( my words) and so she turned around. She described CD pulling away and putting his penis in his trousers. Lara is clear in her own mind that he was attempting to have sexual intercourse with her whilst she was asleep. Her pyjama bottoms had been pulled right down to her feet.

Lara said the last time she ever let CD do a particular act to her was in 2021. This indicates Lara seems to have a sense of self-determination and ownership, and feels some responsibility for the acts that she complains of. That would be entirely consistent with the views of a child who has been groomed over time by her abuser.

Lara informed the interviewing officers that CD's interests in pornography include child and stepfather pornography with kids of Lara's age, which was "12 and up until 10 years old", as Lara put it, with their stepfathers.

Lara has a graphic memory of CD trying to film pornography with her, and describes him attempting to do so on his iPhone. Lara was clearly worried that indecent images of her performing sexual acts would be recorded by CD, and she did not want that.

Lara states CD told her that when she was ready to have sex with him he was going to film it. She also alleges that in about January of 2022 CD threatened to leave her mother if Lara did not masturbate him.

In February 2023 Lara began to self-harm, she had stopped eating and was losing weight. EF, her mother, was worried. In March 2023 Lara's grandmother was concerned about Lara because of text messages sent by Lara in which she described CD as a monster and a rapist.

EF's account of how she dealt with this is at G368. This is the section 9 statement of EF, and she tells me this:

Lara had her second police interview in September 2023. That delay is unacceptable in the context of such a vulnerable child, and such a serious allegation.

Lara confirmed this is the same incident she has complained of before. Her allegations have remained consistent and did not have any rehearsed quality to them. It is clear that it is deeply embarrassing for Lara to have to say these things, and her second interview only came about because her mother was unaware of the contents of the first interview, and wanted to make sure that Lara had told the police everything.

Lara's distress and her welfare needs required her to be supported by her mother and her grandmother, and I can see no reason to criticise their approach.

I accept the reasoning adopted by the police as to the need for a proportionate approach to analysing the phones and devices of EF and the maternal grandmother.

Lara was challenged about her text messages with Lara’s friend 1, and this was particularly intrusive and difficult for a vulnerable witness of 15, especially when these messages are historic. It is akin to trawling through personal diaries and journals, as these girls were exchanging their innermost thoughts, never imagining for one moment how many agencies and adults would then read and try to interpret their words and actions.

Nothing in Lara’s friend 1's evidence undermined Lara's complains. The messages between them do not cast doubt on the veracity of Lara's evidence, much as counsel for father sought to persuade the court otherwise. These are messages between 12-year-olds who have been exposed to social media material on a scale unprecedented for any earlier generation, and who are watching inappropriate television content. The interests in more risqué sexual matters is driven by Lara’s friend 1. Lara tries to shut down these discussions. I have no direct experience of Wattpad, but like most social and interactive platforms I suspect it should be approached with caution in an age where even Roblox and Minecraft are no longer considered to be safe for children. Hormone driven teenagers and adolescents have always been known to experience vivid, graphic dreams. What is different for this generation is that, if they discuss this on a social media platform via the web, there will be a record.

The messages confirm Lara's social struggles, the bullying she experiences and her isolation. Aspects of the evidence are also consistent with Lara's account of waking up to find CD in her room at the end of her bed or on top of her, sexually assaulting her.

Lara’s friend 1 describes Lara as the most innocent person she has laid eyes on. Schoolgirl discussions about the supernatural have been a fact of life for many centuries, and many adolescents and even adults can remain firmly of the view that they have seen the inexplicable.

EF's account of what Lara told her about dildos or sex toys was not put directly to Lara, and I accept it is not dealt with in Lara's police interviews. In those circumstances it was of little evidential value if EF could or could not recall discussing them with Lara.

Lara gave her evidence in a calm, dignified and mainly composed manner. She has nothing to gain, but a huge amount to lose, by making and sticking to her complaints. Her entire world has been turned upside down, and this process has gone on now for years.

Some of them were sensible and mature in their advice. There is no evidence that any of these individuals influenced or contaminated Lara's account, and their actions in supporting her to report concerns were entirely appropriate.

EF's evidence as to how Lara presented before and after May 2022 is an important part of the evidential canvas. I accept that EF was very much in love with CD; she considered the family to be a happy one, and had no idea as to how obsessed CD had become with pornography, or about his infidelity.

She was completely floored by Lara's complaints, and, although she acted immediately so as to protect her children, in accordance with professional advice, her evidence about the further details Lara gave being consistent with CD's sexual fantasies and fetishes was compelling. She describes something of a lightbulb moment when she realised that her partner, the love of her life, and the father of her children, had done the unimaginable and abused their daughter.

There was no indication of vengeance but I formed the impression that EF felt betrayed and deceived. It is difficult to be critical of a parent who finds themselves in the middle of a crisis not of their own making, and is trying to manage the fallout.

I accept the Local Authority's submissions that there are significant external consistencies in Lara's complaints. These include her accurate recollection of dates and times when her mother was absent from the property, and her description of her mother falling asleep on the sofa downstairs in the evenings. She complains of abuse taking place at times which coincide with specific searches for the particular genre of pornography Lara says CD would make her watch whilst abusing her.

Lara's account of CD's sexual preferences accords with her mother's understanding and experiences of CD's preferences over a long 12-year relationship. EF also told me that CD was obsessed with having a small penis, which I accept.

There was no suggestion by CD that EF had encouraged Lara to make false allegations; in fact, in his first police interview, he appears anxious that the police should speak with EF and considered that would help him to rebut the allegations.

When Lara made her complaints, EF was unaware that CD was cheating within their relationship, and she was clearly unaware as to his prolific use of porn sites. I am in no doubt that EF disapproved strongly of such usage, and that CD's initial responses to police about this at G111 were accurate when he said in response to a question, "Do you watch porn with [EF]?", "No, she's dead set against it, like not dead set against it as in she can't look at another man and woman doing it, sort of thing".

Whilst there is absolutely no requirement for CD to explain what might motivate Lara to make false allegations, it is always very telling to consider some of the explanations put forward:

Of course when considering CD's evidence, I bear in mind Dr W’s report and her conclusions about how he functions and why. I remind myself that establishing a witness's veracity remains the function of the court at all times, but experts can assist us to understand how and why a person's psychological profile may affect their presentation.

There are some anomalies in that report, such as CD's self-reported reading difficulties whereas the assessed reading age is 13 years and 2 months. I accept that this does not equate with having similar abilities in terms of comprehension and processing skills, but I note that upon CD's self-report he was "pretty good in lessons", went to mainstream schools and achieved distinctions in science and maths upon going into further education to study electrical engineering.

I also reject any suggestion by or on behalf of CD that he did not understand technology, and required others to set up devices for him. In fact, he was an early adopter of technology, having started with a BlackBerry device.

The picture before this court is of a tech savvy individual who knows how to delete search histories and content from his devices, and who jealously guarded those devices. He even goes so far as to clear his text messages on a daily basis.

There is no basis for suggesting that CD has misunderstood professionals or police when there is any change in the account or explanation he gives. More often it is linked to another piece of evidence which is incriminating, and so he has tried to accommodate it within his narrative.

The investigating officers demonstrated scrupulous efforts to ensure CD fully understood the questions, and there was no criticism made of how his answers were elicited. His police interviews and his statements within these proceedings are his opportunity to respond to the allegations. He is entitled to remain silent but, if he does not, and if the evidence that he provides is inconsistent, the court can come to a view about his reliability as a witness.

In his final police interview CD gave a no comment response.

The raft of measures recommended by Dr W was implemented so as to assist and support CD to give his best evidence before me. Contrary to any view he or AB may hold, counsel did not twist his answers, or his evidence, in any way. CD has lied on many occasions, and about many things. He may appear credible to those closest to him, because he seems to have a charming, endearing side to him, but the fact remains that his evidence is of a poor and unreliable quality and he has lied about key aspects of the evidence.

The Local Authority submits that the following matters were issues that CD lied about:

CD presents a diverse set of non-verbal abilities, performing much better on some non-verbal tasks than others. The degree of variability is unusual for individuals his age, and may be noticeable to those who know him well. His performance was significantly better on the visual puzzle subtest than his own mean score.

Father lied when he told the police during the first interview that he did not watch pornography. This was a deliberate lie, which clearly relates to a material issue, and is motivated by a realisation of guilt and fear of the truth coming out. He also lied when he told the police they would not find any material relating to pornography on his devices. He further lied when he tried to implicate EF in accessing porn at a subsequent interview, knowing full that she was dead set against any use of porn in their relationship.

At times when it was inescapable, father would accept that he had lied, but would then try to justify what he had said, and claim it was not a lie, he just had “not explained it correctly”.

I do not accept that he is in any way embarrassed by his use of pornography, and he had no difficulty in explaining to this court that he liked rough sex and watching porn which involved large penises being inserted into small vaginas.

CD could offer no explanation for how Lara would know what sort of porn he searched for, and denied ever accessing porn in her presence. Again, this is a lie, because he knows that he was showing this pornographic content to Lara. His explanation that maybe she accessed it herself when he failed to shut down his phone properly is yet another lie. His own evidence tells me just how fastidious he was in covering his tracks when conducting internet searches, because he was worried that EF would find out what he was up to.

CD was unable to give a credible, consistent account of the nature of his relationship with Lara. At times he recognised Lara was being bullied, but then he would suggest that in fact it was her own fault, and she had been lying in school.

During his police interview when he claimed he was rarely alone with Lara, he was lying yet again. He was regularly alone with Lara, when her mother was working. When giving his evidence he lied easily and without compunction. He claimed in his police interview at G117, "I've never once been left alone with that girl". Under cross-examination he again claimed he just had not explained it properly, and went on to say, "[EF] would be there 99 per cent of the time".

This is lie upon lie so as to portray himself as someone who would have no opportunity to abuse Lara in the way she alleges. He has lied to cover up what he did.

CD accepted that EF would drop off to sleep on the sofa downstairs on a regular basis, and that she was a sound sleeper, but in his police interview he claimed EF never slept downstairs.

CD's account of events in April 2022 was inconsistent, unreliable and designed to implicate Lara as the person who had accessed pornography on his devices. His changed accounts and deliberate lies come about because he realises that being truthful about who was where, when and why, along with where his phone was and who had access to it, would confirm Lara's account.

I prefer Lara's account to his, as to the events in the early hours of that morning, but I am satisfied that the only individual accessing porn on CD's devices was CD himself. I am also satisfied that there is evidence of four failed transactions during his searches for pornography on those devices, and so CD paid for pornography, and has lied about this.

Lara and EF's evidence was that CD jealously guarded his devices, and they were password protected. Furthermore CD told me they required facial recognition for him to access them, a fact that EF was able to confirm

To his credit CD does not seek to suggest that Child 3 got up in the middle of the night and did it. Given that my assessment of CD as a witness was that he did not seem to understand the concept of truth, and that he was extremely manipulative and focussed entirely on himself, it is a minor credit.

I am in no doubt that the person responsible for the internet searches on CD's phone at about 3 am in April 2022 was CD. That includes all of the search terms within entries 28 to 41 of the chronology. This occurred whilst he was abusing Lara in her mother's bedroom, and the material on the mobile phone confirms what Lara says he was doing. It sets the context.

It is clear that not only does CD have an interest in abusing his stepdaughter, but that he has acted on it over the course of many years. Lara was home schooled at times during this period, and this decision was at the very least supported if not instigated by CD. He also took over responsibility for the school run. He created ample opportunities.

It follows that it is more likely than not that CD was responsible for the other search terms on his devices. Lara and EF would never have conducted such searches.

I accept the comprehensive submissions made on behalf of the Guardian, each and every one of which is valid and adopted by the court. It is clear that CD has lied about his internet searches, because he knows how it looks. He knows his action and this evidence supports key aspects of Lara's complaints, and he has lied so as to escape the consequences. He is also likely to be mindful of the forthcoming criminal trial.

I therefore find on the balance of probabilities but by a comfortable margin that the Local Authority has proven its case in relation to the findings against CD, namely the matters set out at paragraphs 4A, B and C.

Turning to the pleading against AB, the Local Authority avers the following:

Mother's response to that in the threshold document was as follows:

The Local Authority now ask that the court make a further finding that mother remains unable to analyse and assess the risks posed to Child A, and that she is going to require a great deal of work to help her understand and to give her a robust platform from which to protect and educate Child A in the future.

I accept the evidence of social workers as to AB's actions and words at the outset of these proceedings. I have no doubt that AB would have been heavily influenced by CD in what she said and did, and it is clear that she remains very much in love with him. Her position is confirmed in her parental response at A7 dated 13 September 2024.

Any professional witness is likely to rely on their case recordings on matters such as these. I would expect them to refer to those notes in response to questions about finer details. However, an experienced social worker is likely to recall what might be deemed a "red flag" in relation to a young mum whose much older partner has been accused of abusing his 10 to 12-year-old stepdaughter.

In this case the red flag in question was that AB said Lara had "come onto [CD]", and that it was "her word against his". AB remembers saying the second part but not the first. I find that she did tell the social worker that Lara had come onto CD in some way, suggesting that a 10 to 12-year-old child was responsible for being abused. I make no finding as to whether that was her own view formed independently of CD, and influenced by her own adverse childhood experiences, or whether this was something CD told her. This is something that will need to be explored in future assessments.

It is likely that AB's initial stance was to support CD, and to protest his innocence. The phrase that it is "all malicious lies" is one both parents have used at times, but it is one that is likely to have been coined by CD.

I remain concerned about the fact that AB has promoted Facetime contact between Child A and her father at each meal time, up to three times a day, in recent weeks, despite being fully aware of the evidence and needing time and space to reflect on it away from CD's influence.

AB has been involved with CD for all of her adult life, and is extremely invested in their relationship. She is a vulnerable young person in her own right because of her adverse childhood experiences, which included sexual abuse.

Even if the findings were made, she told the court she planned to promote contact and would provide a statement to the criminal courts in support of CD. However, I am not persuaded that there should be any amendment to the pleaded threshold document at this late stage.

The concerns surrounding AB's evidence can be included in an agreed letter of instruction, and the Local Authority and the Children's Guardian can pose questions of the assessor which can be focussed. It would be clear to any objective observer that during this fact finding hearing, and despite being given additional time to consider the evidence, mother's ability to understand her own role in assessing risk and protecting Child A on a day-to-day basis raises concerns.

AB accepted that it was likely CD had accessed the pornographic sites evidenced on his phone, and for the avoidance of any doubt, those show an interest in the following:

Lara falls squarely into CD's target group, and is someone who is of sexual interest to him because she is a teenager, and was even younger when the abuse started. She is a schoolgirl, she is a stepdaughter, she is off school, and can be punished, and she is a virgin.

His searches show frequent access to, and reliance upon, pornography, and on the evidence of both CD and Lara, CD liked to watch pornography whilst having sex. This renders AB extremely vulnerable, even if the parties have physically separated.

I therefore make the finding as per the pleaded threshold, and not the additional amended paragraph proposed by the Local Authority and supported by the Guardian.

That concludes my judgment.

The guiding principles to be applied are summarised by Baker J (as he then was) in Re L and M(children) [2013] EWHC 1569 (fam):

Munby P in Re X (Children)(No 3)[2015] EWHC 3651 (fam) expressly approved the approved the above summary and added [from paragraph 21]:

“To this admirable summary I add three further points.

First, that the legal concept of proof on a balance of probabilities "must be applied with common sense", as Lord Brandon of Oakbrook said in The Popi M, Rhesa ShippingCo SA v Edmunds, Rhesa Shipping Co SA v Fenton Insurance Co Ltd [1985] 1 WLR 948, 956.

Secondly, that the court can have regard to the inherent probabilities: see Lady Hale in In re B (Children) (Care Proceedings: Standard of Proof) (CAFCASS intervening) [2008] UKHL 35, [2009] 1 AC 11, para 31. But this does not affect the legal standard of proof, as Lord Hoffmann emphasised in the same case (para 15):

"There is only one rule of law, namely that the occurrence of the fact in issue must be proved to have been more probable than not. Common sense, not law, requires that in deciding this question, regard should be had, to whatever extent appropriate, to inherent probabilities. If a child alleges sexual abuse by a parent, it is common sense to start with the assumption that most parents do not abuse their children. But this assumption may be swiftly dispelled by other compelling evidence of the relationship between parent and child or parent and other children. It would be absurd to suggest that the tribunal must in all cases assume that serious conduct is unlikely to have occurred. In many cases, the other evidence will show that it was all too likely.”

Thirdly, that the fact, if fact it be, that the respondent (here, the mother) fails to prove on a balance of probabilities an affirmative case that she has chosen to set up by way of defence, does not of itself establish the local authority's case.

More recently in the Court of Appeal, Lady Justice King in Re A (A Child)(Care Proceedings: Burden of Proof) [2018] 4 WLR 117, stated that §§57 and 58:

“57.

I accept that there may occasionally be cases where, at the conclusion of the evidence and submissions, the court will ultimately say that the local authority has not discharged the burden of proof to the requisite standard and thus decline to make the findings. That this is the case goes hand in hand with the well-established law that suspicion, or even strong suspicion, is not enough to discharge the burden of proof. The court must look at each possibility, both individually and together, factoring in all the evidence available including the medical evidence before deciding whether the “fact in issue more probably occurred than not” (Re B: Lord Hoffman).

58.

In my judgment what one draws from Popi M and Nulty Deceased is that:

(i)

Judges will decide a case on the burden of proof alone only when driven to it and where no other course is open to him given the unsatisfactory state of the evidence.

(ii)

Consideration of such a case necessarily involves looking at the whole picture, including what gaps there are in the evidence, whether the individual factors relied upon are in themselves properly established, what factors may point away from the suggested explanation and what other explanation might fit the circumstances.

(iii)

The court arrives at its conclusion by considering whether on an overall assessment of the evidence (i.e. on a preponderance of the evidence) the case for believing that the suggested event happened is more compelling than the case for not reaching that belief (which is not necessarily the same as believing positively that it did not happen) and not by reference to percentage possibilities or probabilities.”

In the case of R v H-C [2016] EWCA Civ 136, McFarlane LJ emphasised that directions given in criminal court should be applied in the family court when considering lies. In his view, there was to be no distinction in the approach taken, "Judges should therefore take care to ensure that they do not rely upon a conclusion that an individual has lied on a material issue as direct proof of guilt." Just because a witness may have lied about one matter does not mean that witnesses will have lied throughout their evidence. The court has to weigh and balance each aspect of that evidence when determining its reliability.

McFarlane J (as he then was) in Staffordshire CC v W [2009] EWHC 1982 (Fam), addressed the approach to circumstantial evidence as follows:

Ms Williams has drawn the court’s attention to the following case, and specifically toparagraph 240 of Re P (Sexual Abuse: Finding of Fact Hearing) [2019] EWFC 27 where Mr Justice MacDonald said this:

“i)

Cases of alleged sexual abuse, and of alleged sexual abuse…, are highly emotive and can and do give rise to strong feelings and robustly expressed views and opinions.  Notwithstanding the emotive subject matter however, the task of this court is to take an entirely dispassionate approach to the process of determining whether on the relevant and admissible evidence available to the court the facts alleged by the local authority are established on the balance of probability (see Re A (A Child) (Vulnerable Witness: Fact Finding) at [77]).

ii)

Within this context, and where the court is, at this stage of the proceedings, concerned with the dispassionate determination of issues of fact, the court must resist the siren call of what has been termed the “the child protection imperative” (see Oldham MBC v GW and PW [2007] 2 FLR 597 at [97]).  The need for caution in this regard in the context of cases of alleged sexual abuse was articulated eloquently by Hughes LJ (as he then was) in Re B (Allegation of Sexual Abuse: Child’s Evidence) [2006] 2 FLR 1071 at [43] when he observed that: “…the fact that one is in a family case sailing under the comforting colours of child protection is not a reason to afford to unsatisfactory evidence a weight greater than it can properly bear. That is in nobody’s interests, least of all the child’s.

iii)

Finally, a decision by the court to make no findings, or only some of the findings sought by the local authority does not constitute a ‘failed’ or ‘unsuccessful’ outcome.” 

I accept that the court must exercise particular caution and conduct a proper analysis of all the available evidence when considering the veracity and reliability of allegations which are entirely dependent upon hearsay evidence, whether that be in the format of ABE interviews or reports of what children have said to family, friends, carers or other persons.

Additional caution must be exercised when the evidence relied upon is outside an ABE interview. The court can have no certainty as to the manner in which a question was asked (including, potentially, questions that are leading, closed, repetitive, introduce external information, intoned or suggest limited options). Equally, the court has no certainty as to the accuracy of the stated answer. Moreover, where an ABE  interview follows earlier  unrecorded questioning, the court must consider the extent to which the earlier questioning may have tainted  the answers. Such evidence is admissible, even though there has been a failure to comply with ABE guidelines (Re B [2006] EWCA Civ 773; [2006]  2 FLR 1071). It is not an "all or nothing" situation. I am entitled to find that some aspects reflect reality and that some do not (JFM v Neath Port Talbot BC [2008] EWCA Civ 3). A judge can find that material is cogent despite serious failings in the ABE  interview process (Re-H [2014] EWCA Civ 232).