Fact Finding

Findings of Fact in Domestic Abuse Cases

Where are we now?

General principles for all finding of fact hearings

The burden of proof rests with the party making the allegations.
The facts must be proved on the balance of probabilities. Common-sense, not law, requires that in deciding this question, regard should be had to whatever extent is appropriate to inherent probabilities – Re B [2008] UKHL 35.
Findings of fact must be based on evidence, which can include inferences that can properly be drawn from the evidence, but not on suspicion or speculation – Re A (A Child) (Fact-finding hearing: Speculation) [2011] EWCA Civ 12.
FPR 22.1 The court may control the evidence by giving directions as to – (a) the issues on which it requires evidence; (b) the nature of the evidence which it requires to decide those issues; and (c) the way in which the evidence is to be placed before the court.
Any evidence to be admissible must be relevant, i.e. if it is logically probative or disapprobative of some matter which requires proof. The Judge must then decide, if relevant, should the evidence be admitted. The strength of the argument for admittance will always depend on the Judge’s assessment of its significance – O’Brien v Chief Constable of South Wales Police [2005] UKHL 26, cited with approval in F v M [2021].
Hearsay evidence is admissible in proceedings relating to children – Re A (A Child) [2015] EWFC 11). When estimating the weight to be given to hearsay evidence, the court must have regard to any circumstances from which any inference can reasonably be drawn as to the reliability or otherwise of the evidence. In addition, the court has to consider hearsay evidence anxiously and carefully – R v B County Council, ex parte P [1991] 2 All ER 65.
The court is not bound by the cases put forward by the parties but may adopt an alternative solution of its own – Re S (A Child) [2015] UKSC 20. The court must ensure that any additional or different findings made are securely founded in the evidence: and that the fairness of the fact-finding process is not compromised – Re G and B (Fact finding Hearing) [2009] EWCA Civ 10).

Particular issues in cases of domestic abuse

The need to identify and decide upon issues of domestic abuse is important in family proceedings. The court must consider the impact of the abuse on both the child and parent and determine what orders are to be made for the future protection and welfare of both. – Re H-N and Others (children) (domestic abuse: findings of fact hearings) [2012] EWCA Civ 448 para 4.
It is accepted by the Court of Appeal in Re H-N, that greater prominence needs to be given to consideration of abusive behaviour in the family courts. Judges should consider para 60 of Statutory Guidance published by the Home Officer pursuant to section 77(1) of the Serious Crime Act 2015 which identified paradigm behaviours of controlling and coercive behaviour. –see further F v M [2021] EWFC 4.
Domestic abuse is not restricted to physical violence and visible injuries or consideration of separate incidents. PD12 J recognises coercive and controlling behaviour, defined as follows:
- Coercive behaviour is defined as ‘an act or a pattern of acts of assaults, threats, humiliation and intimidation or other abuse that is used to harm, punish or frighten the victim. (note comment in F v M that reference to ‘an act’ is misleading; what is required is a pattern of behaviour
- Controlling behaviour is defined as an act or pattern of acts designed to make a person subordinate and/or dependent by isolating them from sources of support, exploiting their resources and capacities for personal gain, depriving them of the means needed for independence, resistance and escape and regulating their everyday behaviour’.
Key to both behaviours is an appreciation of a ‘pattern’ or a ‘series of acts’ F v M [2021] EWFC 4 para 4. Such behaviour is dangerous as it seeks to undermine the autonomy of the victim.
Examples of the ‘paradigm strategies’ referred to above were set out in F v M from para 60. This is not an exhaustive list but rather a ‘check list’ to prompt questioning and inquiry about ‘that which might, in isolation, appear innocuous or insignificant may in the context of a wider evidential picture be more accurately understood’ – para 61.
- Isolation from friends and family
- Deprivation of basic needs
- Monitoring time
- Monitoring via online communication tools/spyware
- Taking control over aspects of everyday life
- Depriving access to support
- Denigration
- Enforcing activities that humiliate, degrade or dehumanise.
- Forcing participation in criminal activity
- Financial abuse
- Controlling access to school/study
- Taking wages, benefits or allowances
- Threats to hurt or kill.
- Threats to harm a child.
- Threats to reveal or publish private information.
- Assault
F v M [2021] also referred to section 76 Serious Crime Act 2015, to assist a broader understanding of the behaviours. – para 105. It must be repeated, have a serious effect on the victim and the perpetrator knows or ought to know the behaviour will have this effect.
The Court of Appeal in re H-N identified the ways in which an abusive pattern of behaviour can harm a child – para 31.
- Is directed against or witnessed by the child.Causes the victim of abuse to be so frightened of provoking an outburst or reaction from the perpetrator that she/he is unable to give priority to the needs of her/his child.Creates an atmosphere of fear and anxiety in the home which is inimical to the welfare of the child
- Risks inculcating, particularly in boys, a set of values which involve treating women as inferior to men.
Even if there is no longer any future risk of assault, does not mean that a pattern of coercive and controlling behaviour will not manifest itself in some other albeit more subtle manner to cause further harm – re H-N para 52.

The approach of the court

PD12J does not establish a ‘free standing jurisdiction’ to determine domestic abuse allegations which are not relevant to the determination of the child welfare issues that are before the court – Re H-N para 58a). The court must focus on the over-arching issue of coercive and controlling behaviour in the context only that it is relevant and necessary to determine issues as to a child’s future welfare – Re K [2022] EWCA Civ 468 para 63.
Therefore, a fact finding hearing should be considered ‘necessary’ to provide a factual basis for a welfare report or assessment, a basis for an accurate assessment of risk and/or the making of child arrangement orders or to consider the need for a domestic abuse related activity.
A finding of fact hearing is a ‘major judicial determination’ which will inevitably introduce delay – Re K [2022] para 42 and the court should consider the possibility of non-court dispute resolution at the FHDRA – Re K para-40
The real evil of coercive and controlling behaviour is its corrosive impact on the victim’s autonomy. Not all ‘directive, assertive, stubborn or selfish’ behaviour will qualify. Where the behaviour does not have the character of being degrading or dehumanising. or ‘designed to make a person subordinate’ it is likely to be ‘unnecessary and disproportionate’ for detailed findings of fact to be made. ‘It will not be in the interests of the child or of justice for the court to allow itself to become another battle ground for adult conflict’ – Re L (Relocation: Second Appeal) 2017 EWCA Civ 2121 para 61 (endorsed by Re H-N para 32).
It is therefore of critical importance to identify at an early stage the real issue in the case in particular with regard to the welfare of the child [PD12J 14] before a court is able to assess if a fact-finding hearing is necessary and what form it should take – Re H-N para 8.
Where coercive or controlling behaviour is alleged, that assertion should be the primary issue for determination. Any other specific factual allegations should be pursued because of their potential probative value to the alleged behaviour, unless the factual allegation is so serious that it justifies determination regardless – a likely example being an allegation of rape – Re H-N para-59
PD 12 J sets out a step-by-step template that courts must follow in these cases and underpins that the court should in many cases focus on a pattern of behaviour, rather than individual incidents – Re H-N para 25. PD12 J remains ‘fit for purpose’ and properly reflects modern understanding of domestic abuse – Re H-N para 28.
The Court of Appeal in re H-N para 37 summarised the proper approach of the court as follows:
1. Consider the nature of the allegations and the extent they are likely to be relevant in deciding to make a CAO.
1. Have in mind PD12J.16, to provide a basis of assessment of risk and therefore the impact of the alleged abuse on the child.
1. PD12J.17 the court must consider if a separate fact finding is necessary and proportionate, considering the overriding objective FPR 1.1 and the President’s Guidance of June 2020 – ‘Parties appearing before the court should expect the issues to be limited only to those which it is necessary to determine to dispose of the case, and for oral evidence and oral submissions to be cut down only to that which it is necessary for the court to hear’. Is there other evidence available to provide a sufficient factual basis to proceed?
The court must isolate what ‘may sometimes seem to be relatively innocuous incidents and locating them in a context which illuminates their greater significance’ F v M [2021] para 100.
It would benefit the court and parties for Cafcass to be involved prior to any decision as to whether a finding of fact is necessary – Re H-N para 38 and consideration ought to be given to more substantive Cafcass work beyond the safeguarding letter.
Judicial continuity is important, to enhance the efficient and sympathetic management of the process – para 6 vi Re B-B (Domestic Abuse: Fact Finding) [2022]

How are allegations to be presented to and considered by the court?

Presentation of the evidence

Evidence needs to be organised and structured so that everyone understands its significance – Re H-N para 41. This is important in terms of procedural fairness and simple efficiency. The Court of Appeal in Re H-N found force in the criticisms of limited ‘Scott schedules’, as this may reduce the focus of the court and deny the proper assessment of the alleged perpetrator’s behaviour as a whole and to what extent this forms a ‘pattern’.
However, the Court of Appeal was unable to offer a clear alternative to the use of schedules, suggesting that it may assist to adopt a ‘threshold document’ akin to public law proceedings which is supported by more detailed narrative statements. The Judge in F v M [2021] considered it inappropriate to attempt prescriptive guidance, but commented that this insidious type of abuse ‘may not easily be captured by the more formulaic discipline of a Scott Schedule’ – para 113. It will be for the court in each individual case to determine if such schedules are useful.
The court in Re B-B (Domestic Abuse: Fact Finding) [2022] EWHC 108 found it useful to consider the evidence relevant to each different kind of alleged domestic abuse in ‘clusters’. There was inevitably some overlap between the different ‘clusters’, but this built up a picture of the nature of the relationship under scrutiny and it was easier to see if patterns of behaviour emerged – para 6 i.
The court will be assisted by the parents being asked to describe in short terms (either in a written statement or orally at a preliminary hearing) the overall experienced of being in a relationship with each other (Re H-N para 58d).
The vulnerability of witnesses must be considered prior to the hearing in a ‘ground rules’ hearing and special measures considered as necessary. See Part 3A FPR – Vulnerable persons: participation in proceedings and giving evidence. A vulnerable person may not act in the same way as someone more independent and confident if they are abused or exploited in the relationship – M (A Child) [2021] EWHC 3225.

Weighing the evidence

The court must take into account all the evidence, considering each piece of evidence in the context of the other evidence, surveying a wide landscape, and must avoid compartmentalising evidence. The court must exercise an overview of the totality of the evidence in order to conclude whether the case put forward has been made out to the appropriate standard of proof – see Re U, Re B (Serious Injury: Standard of Proof) [2004] EWCA Civ 567, W and F (Children) [2015] EWCA Civ 1300, Re E (A Child) [2016] EWCA Civ 473 and AS v TH [2016] EWHC 532 (Fam) MacDonald J).
In Re BR (Proof of Facts) [2015] EWFC 41 Peter Jackson J (as he then was) stated (paragraph 8): ‘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’.
. It is essential that the court forms a clear assessment of their credibility and reliability of the parents’ evidence. They must have the fullest opportunity to take part in the hearing and the court is likely to place considerable weight on the evidence and the impression it forms of them – Re W and another (non-accidental injury) [2003] FCR 346).
Any judge appraising witnesses in the emotionally charged atmosphere of a contested family dispute should warn themselves to guard against an assessment solely by virtue of their behaviour in the witness box and to expressly indicate that they have done so Re M (Children) [2013] EWCA Civ 1147. In cases of alleged sexual assault, since July 2020 Family Court judges who hear such cases must undertake training on the ‘serious sexual assault’ programme, which includes elements in respect to psychological reactions to sexual assault and trauma – re H-N para 67.
In private law cases, the court needs to be vigilant to the possibility that one or other parent may be seeking to gain an advantage in the battle against the other. This does not mean allegations are false, but it does increase the risk of misinterpretation, exaggeration or fabrication – Re B-B (Domestic Abuse: Fact Finding) [2022] para 26 ii.
Memory becomes fainter with every passing day and imagination becomes correspondingly more active. Therefore, contemporaneous documents are always of the utmost importance – A County Council v M and F [2012] 2 FLR 939.
A witness may tell lies during an investigation and the hearing for many reasons, such as shame, misplaced loyalty, panic, fear and distress. The fact that a witness has lied about some matters does not mean that he or she has lied about everything – R v Lucas [1982] QB 720, applied in family proceedings in Re H-C (Children) [2016] EWCA Civ 136)). 5 B116 23.
If the court determines that the Lucas direction is called for, or is invited to proceed on that basis, submissions should be made to identify (i) the deliberate lie(s) relied upon; (ii) the significant issue to which it/they relate(s); and (iii) on what basis it can be determined that the only explanation for the lie(s) is guilt – Re A, B, C (Children) [2021] EWCA Civ 451, Macur LJ.
The court in Re B-B (Domestic Abuse: Fact Finding) [2022] suggested the following approach at para 33:
- First review the general credibility of the parties and their supporting witnesses
- Then review the history of the relationship.
- Look at broad categories of coercive/controlling behaviour.
- Identify those individual allegations which require discrete determination.

Reliance on criminal law concepts

When considering domestic abuse, the alleged behaviour may be capable of prosecution in a criminal court, which has as its aim the punishment of offenders by the state and operates to a different and higher standard of proof. It is wrong for the Family Court to be drawn into analysis of factual evidence in proceedings relating to children which is based on criminal law principles and concepts – Re R (Children) (Care Proceedings: Fact-finding Hearing) [2018] EWCA 198 para 62, approved by Re H-N para 66.
The Family Court need not shy away from the use of the word ‘rape’ however is not required to decide if an offence has been proved to the criminal standard; the focus is on the abusive nature of the behaviour and the borderline between ‘consent’ and ‘submission’ is less significant –Re H-N para 71.
The court was asked to give further guidance in Re A and Another v B and Others [2022] and affirmed the position set on in Re H-N.
The court in Re A did however offer some further guidance.
- The courts must consider carefully as to how a hearing is conducted regarding allegations of rape, in particular the scope of cross examination of an alleged victim with regards to their sexual history – Re H-N para 74.
- There is no automatic bar on the admission of evidence about a party’s sexual history with third parties, but the court is likely to be slow to find it relevant and it will require a specific application.
- However, evidence about the parties’ sexual relationships with one another is likely to be relevant; the court must be mindful of its obligation to consider the wide canvas of evidence and patterns of behaviour.
- There is no need to make a specific application to the court in such circumstances, unless reliance is placed on intimate images.

With regard to the question as to how family court judges ought to deal with ‘rape myths/stereotypes’ the court in Re A was referred to the CPS Guidance Annex A ‘tackling rape myths and stereotypes’. The court agreed that it could assist a judge to have regard to such materials, including Chapter 6 of the Equal Treatment Bench Book July 2022. But the court declined to attempt a list of common myths/stereotypes, which risked creating a rigid framework.

After the hearing

The court must produce a schedule of findings made or endorse that presented by counsel. See para 29 PD12J. This represents good practice and will help to illuminate a judge’s evaluation of the evidence and inform their ultimate findings

Useful authority discussing the correct approach to appealing a finding of fact T (Fact-Finding: Second Appeal) [2023] EWCA Civ 475 (05 May 2023) (bailii.org)

Further resources

Some useful commentary on the recent CAFCASS guidance of October 2024 for cases involving allegations of domestic abuse New Cafcass Domestic Abuse Policy – lots of starting points, but where will we end up? / Pink Tape

Judicial guidance as to the operation of the Pathfinder pilot scheme in private law cases Child A and B, Re [2024] EWFC 284 (B) (11 October 2024) (bailii.org)

What happens when a child gets hurt and we don’t know who did it?

In the light of concerns about the Ben Butler case in June 2016, this post by Sarah Phillimore attempts to explain the law that will apply in the family courts when a child has been hurt and there are a number of adults who could have done it – the so called ‘pool of perpetrators’.

If you want to know more about the practicalities of the court process from a parent’s perspective, please see this guest post by Suesspiciousminds ‘The Social Worker tells me my child has been hurt’.

There is often confusion expressed about why both criminal AND family cases can run together, based on the same concerns that a child has been hurt. In some cases, the criminal proceedings will stop or not even start and only the family case continues. This is because of the different roles and responsibilities of the criminal and family courts. Criminal courts, in essence, exist to identify criminals and punish them. As punishment can involve a deprivation of liberty by sending someone to prison, the standard of proof is high – ‘beyond reasonable doubt’.

Family cases however are about protecting children so the focus is different and the standard of proof is lower. There are many parents however who argue that it is simply wrong to make findings about children being injured and remove them from their families on the basis of that lower standard of proof. However, it will probably take an Act of Parliament to change this as Judges are now very clearly bound by decisions of the Supreme Court.

The relevant law – general principles about establishing facts

The court should consider the following issues when it needs to make a finding about what happened in any particular case:

Articles 6 and 8 of the European Convention on Human Rights [ECHR] which means the court must respect the right to family life and the right to a fair trial.
A finding of fact by a Judge that someone hurt a child is a serious thing; therefore anyone at risk of such a finding being made against them must have a chance to be part of the court proceedings and be able to make their case. If someone is a vulnerable adult and needs help from, for e.g. an intermediary, this should be considered by everyone at an early stage
The ‘burden of proof’ lies on the person who makes the allegation, in this case the local authority. This means that it is not the adult’s responsibility to prove they did not hurt the child; the local authority must prove they did.

Burden and standard of proof in ‘binary’ system

The standard of proof is the ‘balance of probabilities’ – it must be more than 50% likely that something happened: see Re B (Care Proceedings: Standard of proof) [2008] UKHL 35. In the words of Baroness Hale at paragraph 70: “I…would announce loud and clear that that the standard of proof in finding the facts necessary to establish the threshold at s31 (2) or the welfare considerations at s1 of the 1989 Act is the simple balance of probabilities, neither more not less. Neither the seriousness of the allegations nor the seriousness of the consequences should make any difference to the standard of proof to be applied in determining the facts. The inherent probabilities are simply something to be taken into account, where relevant, in deciding where the truth lies”.
If a fact is to be proved the law operates a ‘binary system’ which means it is either true or it is not.
Findings of fact must be based on evidence not speculation. As Munby LJ (as he then was) observed in Re A (Fact Finding: Disputed findings) [2011] 1 FLR 1817 “it is an elementary position that findings of fact must be based on evidence, including inferences that can be properly drawn from evidence and not suspicion or speculation”.
The court’s task is to make findings based on an overall assessment of all the available evidence. In the words of Butler-Sloss P in Re T [2004] 2 FLR 838: “Evidence cannot be evaluated and assessed separately in separate compartments. A judge in these difficult cases must have regard to the relevance of each piece of evidence to other evidence and to exercise an overview of the totality of the evidence in order to come to the conclusion whether the case put forward by the local authority has been made out to the appropriate standard of proof”.
If it is suggested that something is ‘very unlikely’ to have happened, that does not have an impact on the standard of proof. See BR (Proof of Facts) [2015] EWFC 41 (11 May 2015) where Jackson J commented at paras 3 and 4:
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. As Mr Rowley QC and Ms Bannon felicitously observed:
“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.”
I agree. 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, and it is when analysing the evidence that the court takes account of the probabilities.

What happens if a witness lies about something?

An important part of the assessment is what the court thinks about the reliability of the adult’s evidence. The court will be worried if someone is found to have lied about something, but that does not necessarily mean that person has lied about everything. The court will keep in mind the warning in R v Lucas [1981] QB 720 that “if a court concludes that a witness has lied about a matter, it does not follow that he has lied about everything. A witness may lie for many reasons, for example out of shame, humiliation, misplaced loyalty, panic, fear, distress, confusion and emotional pressure”.

Expert witnesses

With regard to evidence provided by expert witnesses, the court should consider the following:
- First, whilst it may be appropriate to attach great weight to clear and persuasive expert evidence it is important to remember that the roles of the court and expert are distinct and that it is the court that is in the position to weigh the expert evidence against the other evidence: see, for example, Baker J in Re J-S (A Minor) [2012] EWHC 1370.
- Secondly, the court should always remember that today’s medical certainty may be disregarded by the next generation of experts. As Hedley J observed in Re R (Care Proceedings Causation) [2011] EWHC 1715 “there has to be factored into every case…a consideration as to whether the cause is unknown”.

Particular considerations in a case when a child has suffered injury

The court will consider the decision of the Supreme Court in in Re S-B (children) (non-accidental injury) [2009] UKSC 17.

Was the injury an accident?

If the court is satisfied that the child sustained injuries, the first question is whether they were caused ‘non accidentally’.
The court is reminded of the comments of Ryder LJ about the expression “non-accidental injury” in S (A Child) [2014] EWCA Civ 25:-I make no criticism of its use but it is a ‘catch-all’ for everything that is not an accident. It is also a tautology: the true distinction is between an accident which is unexpected and unintentional and an injury which involves an element of wrong. That element of wrong may involve a lack of care and/or an intent of a greater or lesser degree that may amount to negligence, recklessness or deliberate infliction. While an analysis of that kind may be helpful to distinguish deliberate infliction from say negligence, it is unnecessary in any consideration of whether the threshold criteria are satisfied because what the statute requires is something different namely, findings of fact that at least satisfy the significant harm, attributability and objective standard of care elements of section 31(2).
For an example of an injury deemed accidental, see EF (a child), Re [2016] EWFC B107 (15 September 2016) the court accepted the parents’ account and thus the LA had not made out its case.

If it wasn’t an accident – who did it?

Having established the injury was not an accident, attention turns to whether or not the court can say who caused the injury. The ‘threshold criteria’ (what the court needs to find proved in order to make a care order) can be established by findings that a child has suffered harm whilst in the care of his parents, or other carers, without the need to establish precisely who caused the injuries. Nevertheless, where possible, it is clearly a good idea to identify who has caused the injuries:
- to be as clear as possible about future risks to the child and how to deal with those risks.
- The child has a right to know what happened to him, if it is possible to find out.

How hard should the court try to find out who did it?

However, the court should not ‘strain unnecessarily’ to identify who hurt the child. If the evidence does not support a specific finding against an individual(s) the court should attempt to identify the ‘pool’ of possible perpetrators. See Lancashire CC v B [2000] 2 AC 147 and North Yorkshire CC v SA [2003] 2 FLR 849.
- The identification of a pool of possible perpetrators is sometimes necessary in order to determine if the child’s parents or carers are to blame for the harm suffered by the child. If the child was hurt by someone outside the home or family – for example by someone at school or at hospital – then it would usually be unfair to say that this is the parent’s/carer’s fault.
- In considering whether a particular individual should be within the pool of possible perpetrators the test is whether there is a real possibility that he or she was involved.
- If the court identifies a pool of possible perpetrators the court should be wary about expressing any view as to the percentage likelihood of each or any of those persons being the actual perpetrator. (In the words of Thorpe LJ: “Better to leave it thus”).

What happens in the future if a parent is found to be in the ‘pool of perpetrators?’

As a parent, this could have a serious impact on your current or future family life. You may find that you need to submit to a risk assessment from the local authority if you want to care for your children.

However, if you become involved in care proceedings in the future, the court is clear that a previous finding that you were ‘in the pool’ can NOT be treated as simply ‘proof’ that you hurt a child and it cannot be used in this way as part of any threshold document to assert that your current children are at risk.

However, the fact that a parent was part of a household where a child suffered injury, cannot just be ignored and will need to form part of a careful assessment of current circumstances.

See In the matter of J (Children) [2013] SC 9 – the judgment of Lady Hale at para 52:

52. It is, of course, a fact that a previous child has been injured or even killed while in the same household as this parent. No-one has ever suggested that that fact should be ignored. Such a fact normally comes associated with innumerable other facts which may be relevant to the prediction of future harm to another child. How many injuries were there? When and how were they caused? On how many occasions were they inflicted? How obvious will they have been? Was the child in pain or unable to use his limbs? Would any ordinary parent have noticed this? Was there a delay in seeking medical attention? Was there concealment from or active deception of the authorities? What do those facts tell us about the child care capacities of the parent with whom we are concerned?

53. Then, of course, those facts must be set alongside other facts. What were the household circumstances at the time? Did drink and/or drugs feature? Was there violence between the adults? How have things changed since? Has this parent left the old relationship? Has she entered a new one? Is it different? What does this combination of facts tell us about the likelihood of harm to any of the individual children with whom the court is now concerned? Does what happened several years ago to a tiny baby in very different circumstances enable us to predict the likelihood of significant harm to much older children in a completely new household?

54. Hence I agree entirely with McFarlane LJ when he said that In re S-B is not authority for the proposition that “if you cannot identify the past perpetrator, you cannot establish future likelihood” (para 111). There may, or may not, be a multitude of established facts from which such a likelihood can be established. There is no substitute for a careful, individualised assessment of where those facts take one. But In re S-B is authority for the proposition that a real possibility that this parent has harmed a child in the past is not, by itself, sufficient to establish the likelihood that she will cause harm to another child in the future.

It is very important to investigate all the surrounding circumstances thoroughly and not to risk reversing the burden of proof. The Court of Appeal commented in B (Children : Uncertain Perpetrator) (Rev 1) [2019] EWCA Civ 575 (04 April 2019) that it might be better to talk more about a ‘list’ than a ‘pool’.

Fact Finding in Care Proceedings

What is meant by a ‘fact finding hearing’ ? What does the Judge have to do? What needs to be proved? This post appears at the Children In Law website, curated by barrister Jacqui Gilliat. This summary of the law relating to fact finding hearings was written DJ Simmonds at the Central Family Court in London, in collaboration with HHJ Hess.

The law relevant to fact finding hearings in care proceedings can be summarised as follows.

I should have in the forefront of my mind the provisions of Articles 6 and 8 of the ECHR. In particular it is important that I ensure that any person who might be affected adversely by my judgment, for example by being in the pool of possible perpetrators, has had the opportunity to be represented within the proceedings and been able to put their case.

The fact finding decisions need to be made in the context of the provisions of Section 31(2) Children Act 1989, the “threshold criteria”. This section reads:-

“A court may only make a care order or supervision order if it is satisfied –

that the child concerned is suffering, or is likely to suffer, significant harm; and that the harm, or likelihood of harm, is attributable to …the care given to the child, or likely to be given to him if the order were not made, not being what it would be reasonable to expect a parent to give to him.

“Harm” is defined in Section 31(9) as meaning “ill-treatment or the impairment of health or development”.

The relevant date for assessing whether the child “is suffering” harm is the date of the care order application or, if temporary protective arrangements have been continuously in place from an earlier date, the date when the arrangements were initiated. In cases where the “is suffering” limb of the test is engaged (as in the present case) it is not enough that the court suspects that a child may have suffered significant harm or that there was a real possibility that he did, the court must be satisfied that the child was actually harmed: Re M (A Minor) (Care Order: Threshold Conditions) [1994] 2 FLR 577.

Burden and Standard of Proof

The burden of proof lies on the party who makes the allegation, in this case the local authority.

The standard of proof is the balance of probabilities: see Re B (Care Proceedings: Standard of proof) [2008] UKHL 35. In the words of Baroness Hale at paragraph 70: “I…would announce loud and clear that that the standard of proof in finding the facts necessary to establish the threshold at s31 (2) or the welfare considerations at s1 of the 1989 Act is the simple balance of probabilities, neither more not less. Neither the seriousness of the allegations nor the seriousness of the consequences should make any difference to the standard of proof to be applied in determining the facts. The inherent probabilities are simply something to be taken into account, where relevant, in deciding where the truth lies”.

Binary system – it either happened or it did not happen

If a fact is to be proved the law operates a binary system. It is open to the Court to find on the balance of probabilities either that an allegation is true or that an allegation is false. As Lord Hoffman observed in Re B (supra) : “if a legal rule requires the facts to be proved a judge must decide whether or not it happened. There is no room for a finding that it might have happened; the law operates a binary system in which the only values are nought and one”.

Evidence not speculation

Findings of fact must be based on evidence not speculation. As Munby LJ (as he then was) observed in Re A (Fact Finding: Disputed findings) [2011] 1 FLR 1817 “it is an elementary position that findings of fact must be based on evidence, including inferences that can be properly drawn from evidence and not suspicion or speculation”. The court’s task is to make findings based on an overall assessment of all the available evidence. In the words of Butler-Sloss P in Re T [2004] 2 FLR 838: “Evidence cannot be evaluated and assessed separately in separate compartments. A judge in these difficult cases must have regard to the relevance of each piece of evidence to other evidence and to exercise an overview of the totality of the evidence in order to come to the conclusion whether the case put forward by the local authority has been made out to the appropriate standard of proof”.

One part of the assessment is an analysis of the credibility and reliability of the witnesses and potential perpetrators. I need to remind myself, though, of the important warning to be derived from R v Lucas [1981] QB 720 that “if a court concludes that a witness has lied about a matter, it does not follow that he has lied about everything. A witness may lie for many reasons, for example out of shame, humiliation, misplaced loyalty, panic, fear, distress, confusion and emotional pressure”.

Expert Evidence

Where, as here, an important part of the evidence is provided by expert witnesses I need to remind myself of two propositions in weighing the importance of that evidence. First, whilst it may be appropriate to attach great weight to clear and persuasive expert evidence it is important to remember that the roles of the court and expert are distinct and that it is ultimately the court that is in the position to weigh the expert evidence against the other evidence: see, for example, Baker J in Re J-S (A Minor) [2012] EWHC 1370. [But note comment about ‘blind-siding’ below in Further Reading].

Secondly, the court should always remember that today’s medical certainty may be disregarded by the next generation of experts and that scientific research may one day throw light into corners that are at present dark. There may be cases where criticism of even a clear expert opinion is more than fanciful. The case of LB of Islington v Al Alas and Wray [2012] EWHC 865 (Fam) is a useful cautionary tale in this respect. As Hedley J observed in Re R (Care Proceedings Causation) [2011] EWHC 1715 “there has to be factored into every case…a consideration as to whether the cause is unknown”.

When a child has suffered injury

In structuring my analysis in this fact finding hearing I remind myself of the Supreme Court decision in Re S-B (children) (non-accidental injury) [2009] UKSC 17. This decision informs the structure of the analysis, broadly encouraging the route set out below.

If I am satisfied that the child sustained injuries I must first consider whether they were caused non-accidentally. In this context I remind myself of the comments of Ryder LJ about the expression “non-accidental injury” in S (A Child) [2014] EWCA Civ 25:-

I make no criticism of its use but it is a ‘catch-all’ for everything that is not an accident. It is also a tautology: the true distinction is between an accident which is unexpected and unintentional and an injury which involves an element of wrong. That element of wrong may involve a lack of care and/or an intent of a greater or lesser degree that may amount to negligence, recklessness or deliberate infliction. While an analysis of that kind may be helpful to distinguish deliberate infliction from say negligence, it is unnecessary in any consideration of whether the threshold criteria are satisfied because what the statute requires is something different namely, findings of fact that at least satisfy the significant harm, attributability and objective standard of care elements of section 31(2).

Secondly, I must next consider whether I can identify the perpetrator of the injuries. A Court should not strain to identify the perpetrator, but to do so should promote clarity in identifying future risks to the child and the strategies necessary to protect the child from them and there should be long-term benefits for the child in knowing the truth if it can be ascertained. Plainly, the threshold criteria can be established by findings that a child has suffered harm whilst in the care of his parents, or other carers, without the need to establish precisely who caused the injuries. Nevertheless, where possible, and for the consideration of a child’s welfare, it is desirable to identify who has and who has not caused the injuries.

Thirdly, if I cannot identify a perpetrator or perpetrators, I should attempt to identify the pool of possible perpetrators. In this context I remind myself of the decisions in Lancashire CC v B [2000] 2 AC 147 and North Yorkshire CC v SA [2003] 2 FLR 849. The identification of a pool of possible perpetrators is sometimes necessary in order to fulfil the ‘attributability’ criterion – for example if the harm has been caused by someone outside the home or family, for example at school or in hospital or by a stranger, then it is not attributable to the parental care unless it would have been reasonable to expect a parent to have prevented it. It is also generally desirable to identify a pool of perpetrators because it will help to identify the real risks to the child and the steps needed to protect him, it will help the professionals in working with the family and it will be of value to the child in the long run. In considering whether a particular individual should be within the pool of possible perpetrators the test is not whether that individual can be excluded as a perpetrator, but whether there is a real possibility that he or she was involved. An individual should not be expected to prove his or her innocence beyond reasonable doubt.

Fourthly, if I identify a pool of possible perpetrators which, ex hypothesi, will include more than one person, I should be cautious about expressing a view as to the percentage likelihood of each or any of those persons being the actual perpetrator. In the words of Thorpe LJ: “Better to leave it thus”.