Lies in Family Law Proceedings – Clarification from the Court of Appeal

H (Children: Uncertain Perpetrator: Lies) [2024] EWCA Civ 1261

Avaia Williams, a pupil barrister under the supervision of Sara Anning and Rebecca Musgrove, analyses the recent judgment in H (Children: Uncertain Perpetrator: Lies) [2024] EWCA Civ 1261, which provides insight into the handling of lies and credibility in family proceedings. This case clarifies the treatment of lies in family courts, particularly as it relates to fact-finding in child welfare cases and the distinction between the criminal and family courts.

Full Judgment can be found here.

Facts

This case arose in care proceedings for three children following the youngest suffering bruising and fractures while in the care of their mother and her new partner (who appeared as an intervenor). Following an extensive fact-finding hearing, the trial judge concluded that both the mother and the intervenor were in a “pool of perpetrators” but could not identify either as the likely perpetrator on the balance of probabilities. Both adults had opportunity and motive, and both had told multiple lies during the proceedings, including that their relationship had ended a significant time prior to the hearing.

The mother’s appeal focused on the judge’s analysis of the identified lies and the Judge’s reliance upon the lies thereafter.

Legal Background

In addressing the mother’s appeal, the Court noted that the trial judge had correctly identified the relevant legal basis for considering lies, notably Re H-C (children) [2016] EWCA Civ 136 which held:

“in an appropriate case, a judge will not infrequently directly refer to the authority of Lucas in giving a judicial self-direction as to the approach to be taken to an apparent lie. Where the “lie” has a prominent or central relevance to the case, such a self-direction is plainly sensible and good practice […[ there should be no distinction between the approach taken by the criminal court on the issue of lies to that adopted in the family court. 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.”

As well as the recent case of Re A, B and C (Children) [2021] EWCA Civ 451, in which the Court suggested it would be good practice:

“…when the tribunal is invited to proceed on the basis, or itself determines, that such a direction is called for, to seek counsel’s submissions to identify: (i) the deliberate lie(s) upon which they seek to rely; (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.”

Lord Justice Peter Jackson highlighted the importance of examining lies within the specific context of family proceedings, where they often play a role in assessing credibility but do not always carry the same implications as in criminal trials.

The Appeal

The mother’s appeal raised three grounds:

The Handling of Lies: She argued that the trial judge inadequately analysed her lies and should have excluded them from consideration unless they indicated guilt.

Identification of the Perpetrator: She contended that the judge had not sufficiently distinguished between her and the intervenor as potential perpetrators.

Factual Findings: She claimed the judge’s conclusion was contrary to the weight of the evidence.

Lord Justice Peter Jackson responded with a clarification on the interpretation of lies in the family context. He noted that while the Lucas direction’s caution is prudent, it should not lead to the exclusion of lies from consideration unless their only explanation is concealment of guilt.

The key passage is illustrative:

“I would therefore make one observation about the description of good practice in Re A, B and C. At [58(iii)] it is said that the court should seek to identify the basis on which it can be determined that the only explanation for the lie(s) is guilt. That draws on the slightly different jury direction in the Crown Court Compendium… which requires that a lie is only capable of supporting other evidence against a defendant if the jury are sure that it was not told for a reason advanced by or on behalf of the defendant, or for some other reason arising from the evidence, which does not point to the defendant’s guilt.”

Lord Justice Jackson continued, rejecting an overly literal application of Re A, B, and C in the family context:

“Relying on a literal reading of Re A, B and C, Mr Barnes [for the mother] further argues that the court is required to exclude a lie from consideration altogether in any case where it cannot be satisfied… that the only explanation for it is to conceal guilt. I do not accept that submission… A general exclusionary rule, exclusively directed at lies, would be inconsistent with the duty on the court to consider all the evidence… It will be sufficient for the judge to recall that the true significance of a lie must be carefully assessed, for all the well-known reasons noted by the judge in the present case.”

In sum, he stated, “Any other approach would hamper the court in carrying out its important assessment of credibility and its evaluation of particular issues of fact.”

Commentary

This judgment offers valuable guidance on how family courts should consider lies within fact-finding hearings. Although the Lucas direction advocates restraint when considering lies, the court’s duty in child welfare cases is to weigh all evidence and assign due significance to lies where relevant to credibility or a party’s overall behaviour.

Re H (Children) thus brings a refinement to the guidance provided in Re A, B, and C, clarifying that courts are not required to apply a restrictive interpretation in family matters. In assessing lies, judges may consider these as part of a holistic view without needing to exclude them unless they clearly indicate guilt. This more flexible approach ensures that the court can evaluate the broader context of each case, rather than being unduly limited by any single direction.

Lies must therefore be assessed with a sense of proportion, contextualising them as part of the overall picture. It also reaffirms that lies should be contextualised, not as proof of guilt but as part of a broad evaluation of credibility and reliability.

The decision reinforces a measured approach to lies in family proceedings, ensuring that courts can consider all evidence without being overly constrained by the Lucas direction. By clarifying that lies can be relevant even if their purpose is not solely to conceal guilt, the judgment supports the family court’s focus on a holistic assessment aimed at safeguarding the child’s welfare, whose interests remain paramount, over that of the protections placed on parents which the Lucas direction otherwise seeks to safeguard.

With different aims and procedural basis, notably the interests of the child in each case being at the centre of the Courts decision, it is only right that the Family Court not strap itself firmly to Lucas, evolution of this direction must be very carefully handled, but allowing a more flexible approach to lies, the Court is able to consider the wider picture to cases.