This post began life as a paper delivered by Sarah Phillimore at the St John’s Chambers conference on 4th December 2014: ‘Family Justice: universal access and fair process’. It has been updated to take into account more recent case law; most particularly the case of A (A Child)  and Re BR (Proof of Facts) . No doubt the updating process will continue in light of our continued and collective inability to get to grips with this most essential issue.
With thanks to Dr Harrington for the introduction to Sapir/Whorf
‘We have a system that places the proof of facts at the centre of care proceedings’
Baker J November 2013
- The importance of good evidence
- The consequences if we get it wrong
- How can we do it better?
Why is evidence so important?
Mr Justice Baker addressed a family law conference in 2013 asking the question – how can we improve decision making in the family courts? He identified the twin evils of delay and cost which impact on the quality of decisions made. He commented on the alternatives to litigation, such as mediation or arbitration that might work to mitigate those evils. But he was also clear that alternatives to litigation could never be complete substitutes for litigation. There will always be a proportion of cases that will require the court to intervene.
He said this:
But there will always be a substantial number of disputes in which a forensic process is unavoidable, a process that involves consideration of allegations and cross-allegations made by the parties, a judicial analysis of the evidence, the makings of findings and an assessment of the consequences of those findings. There are some people who genuinely believe this can be done by some sort of committee without involving lawyers at all. Such views are profoundly mistaken.
Children cases are not fully adversarial because the court retains ultimate control of what is and is not litigated. The level of this control will vary. But fundamentally we have a system which puts proof of facts at its heart.
What do we mean by proof of facts in a court?
See Re BR (proof of facts) 
Mr Justice Jackson commented:
It is exceptionally unusual for a baby to sustain so many fractures, but this baby did. The inherent improbability of a devoted parent inflicting such widespread, serious injuries is high, but then so is the inherent improbability of this being the first example of an as yet undiscovered medical condition. Clearly, in this and every case, the answer is not to be found in the inherent probabilities but in the evidence…
He set out some general principles:
- The court acts on evidence, not speculation or assumption. It acts on facts, not worries or concerns. Evidence comes in many forms. It can be live, written, direct, hearsay, electronic, photographic, circumstantial, factual, or by way of expert opinion. It can concern major topics and small details, things that are important and things that are trivial.
- The burden of proving a fact rests on the person who asserts it.
- The standard of proof is the balance of probabilities: Is it more likely than not that the event occurred?
- Neither the seriousness of the allegation, nor the seriousness of the consequences, nor the inherent probabilities alters the standard of proof required. Where an allegation is a serious one, there is no requirement that the evidence must be of a special quality. The court will consider grave allegations with proper care, but evidence is evidence and the approach to analysing it remains the same in every case.
- Nor does the seriousness of the consequences of a finding of fact affect the standard to which it must be proved. The court takes account of any inherent probability or improbability of an event having occurred as part of a natural process of reasoning. But the fact that an event is a very common one does not lower the standard of probability to which it must be proved. Nor does the fact that an event is very uncommon raise the standard of proof that must be satisfied before it can be said to have occurred. Similarly, the frequency or infrequency with which an event generally occurs cannot divert attention from the question of whether it actually occurred. “Improbable events occur all the time. Probability itself is a weak prognosticator of occurrence in any given case. Unlikely, even highly unlikely things, do happen. Somebody wins the lottery most weeks; children are struck by lightning. The individual probability of any given person enjoying or suffering either fate is extremely low.”
- Each piece of evidence must be considered in the context of the whole. The medical evidence is important, and the court must assess it carefully, but it is not the only evidence. The evidence of the parents is of the utmost importance and the court must form a clear view of their reliability and credibility.
What happens when we get it wrong?
A tottering edifice built on inadequate foundations…
Baker J said further:
It goes without saying that this process depends crucially on the skill and experience of a range of professionals – social workers, police, guardians, doctors, psychologists, lawyers and advocates. The judge is dependent on those professionals in coming to the right decision. In the end, judges can only decide the cases that are put before them.
That last sentence is the crucial one and explains the court’s rage when they are faced with poor quality evidence and asked to make such serious decisions as whether or not a child should be adopted. No doubt the words of the President of the Family Division continue to ring in our ears from Re B-S (Children)  EWCA 1146 at paras 39 and 40:
Most experienced family judges will unhappily have had too much exposure to material as anodyne and inadequate as that described here by Ryder LJ.
This sloppy practice must stop. It is simply unacceptable in a forensic context where the issues are so grave and the stakes, for both child and parent, so high.
When evidence is poor the risks are not simply just a stern dressing down from a senior judge but that the court is deprived of the evidence it needs to make the best decision for the child.
And it’s not just a burden on the lawyers who gather and present the evidence; the burden is also upon the Judge to carefully analyse the evidence, particularly in a finely balanced case.
See for example Re B (Children: Long Term Foster Care)  when the Court of Appeal found that the Judge had not sufficiently analysed the evidence before him and in such a finely balanced case, he should have carried out “a detailed and critical review of the evidence, old and new, with each step of the way meticulously charted in the judgment.”
Worst of all – lying in court by professionals
Or worse than all of this – when professionals lie on oath in court. The Judge commented that this case was ‘exceptional’, and I hope he is right about that. See this post by Suesspiciousminds for consideration of the case involving Hampshire CC.
So how can we do it better?
Active thought at the outset of a case about its evidential basis
I will examine some general propositions which hopefully will apply to any case. Particular groups of vulnerable witnesses, such as children, may have other quite specific needs and the interviewing/evidence gathering process will need further adjustment to make sure that these needs are taken into account and unfairness avoided.
There are three useful sources that highlight issues for us to consider:
- Achieving Best Evidence guidance
- Case law
- Linguistic theory
From these sources we can derive the following general principles:
- Watch out for the language you use;
- Allegations which are denied or not proven are NOT ‘facts’
- Test your hypothesis, don’t seek to confirm it
- Distinguish ‘fact’ from the ‘processing of facts’
- Be clear about what ‘facts’ are being challenged.
Watch out for the language you use
Allegations which are denied or not proven are NOT facts
I will examine these two principles together because they are closely inter-related. The language you chose to discuss the evidence can have a very powerful effect on how you think about that evidence and how you go on to treat it. You may also have a different understanding of the words you use than others do and can end up talking at cross purposes.
- if a child makes an allegation of sexual abuse there is a tendency to call this a ‘disclosure’. Disclosure means what it says – a secret fact that is made known. So you have assumed the truth of what is said at the outset. This can be very dangerous.
- If you say you have ‘refuted’ an allegation, I understand that to mean that you have provided proof that the allegation is wrong. But many others would simply hear that you ‘disagree’ with an allegation
- Use of the word ‘paedophile’ to describe a man who is attracted to girls aged 14-16 and the emotional reactions that word triggers.
Theories about linguistics can shine more light upon this.
The Sapir Whorf Hypothesis
Edward Sapir was an American anthropologist-linguist, who was born in Poland in 1884 and is widely-considered to be one of the most important figures in the early development of the discipline of linguistics. Benjamin Whorf was his student. To refer to a ‘hypothesis’ is a misnomer because the two never co-authored anything, and never stated their ideas in terms of a hypothesis. But their work has continued to intrigue many.
What people have taken from their work is the two concepts of linguistic relativity and linguistic determinism. i.e.:
- that meaningful and distinct concepts in one language system are not necessary encoded in the same way or even at all when compared to another language system; and
- speakers of a language are acculturated into particular ways of seeing the world and manipulated into it by the systems that are in place.
As Dr Kate Harrington of Exeter University says:
The words used to describe a reality can have a significant effect on how others perceive and categorise that reality. When this happens in a legal context then such language can have a serious impact on legal outcome.
There is also some very interesting research from a Yale Law School professor, Dan Kahan who wrote a research papers called ‘Motivated Numeracy and Enlightened Self Government’ in 2013. This examined the impact of political passion on people’s ability to think clearly.
I haven’t read the paper in full, but an article by Marty Kaplan of Alternet provides an interesting window into its conclusions:
partisanship “can even undermine our very basic reasoning skills…. [People] who are otherwise very good at math may totally flunk a problem that they would otherwise probably be able to solve, simply because giving the right answer goes against their political beliefs.”
In other words, say goodnight to the dream that education, journalism, scientific evidence, media literacy or reason can provide the tools and information that people need in order to make good decisions.
It turns out that in the public realm, a lack of information isn’t the real problem. The hurdle is how our minds work, no matter how smart we think we are. We want to believe we’re rational, but reason turns out to be the ex post facto way we rationalize what our emotions already want to believe
Therefore, it appears that given the influences that may be operating upon us without our full awareness, the best approach to any allegation from any source, is to treat it seriously and with respect BUT to try to avoid making firm assumptions about its strength or weakness – until of course you have had an opportunity to look at a wide range of evidence that both goes to support or challenge any particularly theory of the case.
Examples where this goes wrong in practice
I have unfortunately had experience of a great number of cases where achieving the best decision for the children was significantly delayed – or even utterly thwarted – by a failure to abide by these principles.
A particularly horrible example is D v B and others (flawed sexual abuse enquiry)  EWHC 2987 (Fam). It is worth reading in full. For further useful commentary on the use of ‘veracity experts’, see this post by suespcioussminds.
The Judge in D v B commented on the development of the case in this way:
Thereafter, the therapist formed the view that the allegations that the father had abused EB were true and fed that belief into the social care system in Surrey. A social worker in Surrey was influenced by the therapist and accepted her view. Groups of professionals met in Surrey and debated wide issues about their beliefs about the allegations, some believing them, some not. There was discussion about a number of issues, which were simply floated without resolution… Information was kept from the father lest it should interfere with EB’s therapy…
The County court judge dealing with the matter in the beginning…however found ‘mother’s account of events truly extraordinary, well exceeding his comprehensive fifteen years experience’. The Judge hence directed further investigations and advises the father to upgrade his contact application to a fully-fledged residence application…The former social worker applied censorship and imposed non-disclosure of minutes of some professionals meeting by means of solicitor instructions. The reasoning given was that it ‘could compromise working relationship with mother’.
There then developed two systems running in opposition. The court in Taunton made orders requiring the mother to make TD available for contact. Orders were backed with penal notices directed at the mother. The NSPCC and the social worker in Surrey gave support to the mother on the basis that the allegations were true. The case was not returned to the court for a fact finding hearing. The opposing systems continued to run in counter-measure.
The Judge further commented:
I have read (and re-read) the relevant passages from the Cleveland report (pages 204 to 214) and the Orkney reports (pages 272, para 15.21 to 275, para 15.32) during the currency of my involvement in these proceedings. I am very well acquainted with the document called ‘Achieving Best Evidence’, which is an everyday working tool for those who practice within the family justice system…I find it very difficult to understand how the history that has emerged reflects that acquired learning.
A (A Child) v Darlington Borough Council 
Another horrible example of failure to get to grips with what are or are not ‘facts’ can be found in the case of A (A Child) in 2015 where the President of the Family Division did not hold back on fierce criticism of the LA handling of care proceedings. See for example paragraph 28 but the entire judgment should be read in full:
First, there was very little analysis, let alone any very rigorous analysis, of the factual underpinning of the local authority’s case. The truth is that the local authority’s case was a tottering edifice built on inadequate foundations.
The President identified 3 fundamental principles at paragraph 8 onwards of his judgment. Failure to abide by these will have serious implications for the successful pursuit of an application in court
- Facts must be drawn from evidence, not suspicion or speculation; LA must provide proper evidence, direct whenever possible and LA must not confuse the distinction between asserting a fact and the evidence needed to prove it
- Facts must be linked to the case on threshold; WHY do these facts go to prove significant harm or risk of it?
- Society must be willing to tolerate diverse standards of parenting… it is not the provenance of the state to spare children all the consequences of defective parenting… (Hedley J re L  1 FLR 2050 para 50)
An interesting aside: Sir Mark Hedley addressed the conference ‘Is the Child Protection System Fit for Purpose’ on 1st June 2015 and opined that whenever judges saw counsel citing this famous dictum ‘it was because they knew they were going to lose’ – I am not so sure he is right about this with the President’s continued endorsement.
It is depressing, to say the least that 9 years divides the two authorities cited above – yet it appears no ‘lessons have been learned’ about how NOT to conduct care proceedings.
See further the case of Re J (a Child)  EWCA 222 where the Court of Appeal endorsed the President’s judgment in A (A Child). It was held that it was ‘impossible’ to detect the process of analysis by the Judge, the threshold criteria contained very little by way of ‘fact’ but made very general observations which no one analysed to show the link between these generalities and the risk of significant harm.
At the beginning – test your hypothesis, don’t seek to confirm it
This is useful guidance from Achieving Best Evidence. Good interviews don’t seek to ask questions to confirm an existing hypothesis but rather test it. Good interviews also encourage free narrative so that there is less risk of the interviewer imposing his or her own assumptions – which can be particularly dangerous when you are interviewing a child.
If you start to gather evidence operating from one perspective, its inevitably going to impact on the course of that process. Its probably inevitable that we will form a theory of a case at an early stage but be wary of allowing your theory to harden into fact without proper investigation and analysis.
For example, the police appear to now recognise the danger of proceeding with investigations on the basis that they ‘believe’ the complainant after many high profile investigations into historic child sex abuse allegations hit the buffers.
We need to distinguish between fact and the processing of facts.
We can also get some useful guidance from the courts. One such helpful overview is the case of P (A Child)  EWCA Civ 963. This was a case that went wrong. A father appealed against the making of care and placement orders and the refusal to further assess him. The LA’s concerns were not about either parents ability to provide physical care for their child but rather the impact of issues around violence and conflict in the relationship.
The father complained that:
- The LA assessment was so flawed to be unreliable
- The nature of the father’s aggression was not reliably established
- The judge had overstated the nature of the aggression
The Court of Appeal unanimously allowed the appeal and gave general comments about the need for active though at the outset of a case about its factual and evidential basis. These are set out from paragraph 112 of the judgment. The court stresses that these are not rules, but they are certainly useful guidance.
As the court considered:
Care cases involve “professional evaluation, assessment, analysis and opinion” brought to bear on facts. As the President said we need to distinguish clearly between what is fact and what falls into the other category…the processing of facts. The assessment and opinions of …professionals will only hold water if the facts upon which they proceed are properly identified and turn out actually to be facts’.
Be clear about what ‘facts’ are being challenged
This is another way the waters can get muddied quite quickly. If a parent says ‘I don’t accept that assessment’ we need to be clear exactly what they are objecting to. Are there mistakes about dates and times? Or is this a fundamental disagreement with the assessment’s conclusions? If so, what is the basis for this disagreement?
The PLO aims to assist with this process in care proceedings by creating different categories of LA material:
- Evidential documents which are served with the application form; and
- Decision making records which are only disclosed on request
Further, the early case management hearing should identify key issues and the evidence required to resolve those key issues. Its obviously essential that proper consideration is given to what alleged facts are actually relevant to a decision and which of those alleged facts are in dispute.
- M (A Child: Failure to comply with Achieving Best Evidence)  EWFC B141
- Impact of ‘wholesale and serious’ breaches of the ABE guidelines Re W and F (Children)  EWCA Civ 1300
- W (fact finding)  EWHC 4347 – almost everything that could go wrong with this case did, to the point that it defied credulity.
- H (A Child) Analysis of Realistic Options and SGOs)  EWCA Civ 460 – where non compliance with rules and practice directions meant a case was not fit to be tried and judge did not carry out the necessary analysis of the options.
- 24th November 2015 the case involving Hampshire CC – where social workers were found to have altered reports and lied about it in court.
- E (A Child)  EWCA Civ 473 The reasons for the appeal succeeding were summarised at para 98 of the judgment and included wholesale failure to acknowledge and analyse ‘numerous and substantial’ deviations from good practice with regard to interviewing children.
- AS v TH (False Allegations of Abuse)  EWCH 532 – Where the Judge commented at the very outset of his judgment that it was disappointing that several witnesses appeared ignorant of the Cleveland report (and concluded at the end that hysteria had taken over)
- J (A Minor)  EWHC 2430 – ‘the boy forced to live as a girl’; another example of failure to evaluate what was actually happening to a young child and imposition of a particular narrative orthodoxy by professionals contributed to significant emotional harm.
- Re V (A Child) - poor decision making and botched assessments meant a child had no contact with his father for about 10 months.
- GD & BD (Children)  EWCH 3312 – example of very poor police, LA and legal practice, described by Suesspiciousminds as ‘the worst case of the year’.
- H v D (Appeal – Failure of Case Management)  – concerns about case management and the court’s approach to the cross examination of an alleged victim by alleged abuser.
- Achieving best evidence in child abuse cases – a joint inspection’; a report from a number of police forces in December 2014.
- Also see this article from barristers at Coram Chambers, which provides a commentary of the judgement in Re J , discussed above.
- See this post from barrister Gordon Exall’s blog, the Civil Litigation Brief, which examines lessons from the family court about proving contested matters.
- Social workers now have a new template to help them present their evidence to the court. (But if your understanding of the facts and/or law is weak, a tick box approach is unlikely to help…)