Family Court Library: Burden of Proof and Evidence in Fact-Findings

burden-of-proof-and-evidence

Family Court Library

General Disclaimer: Nothing presented constitutes legal advice and the McKenzie Friend UK Network is not a legal entity or in anyway claims to be a 'legal resource'. The resource guide is supported by McKenzie Friends and Litigants in person for Litigants in Person in Family Court. McKenzie Friends provide layperson support as an informed friend under the Family Court Practice Guidance of 2010. All information is published under the spirit of that guidance. For any corrections of the information, please contact the McKenzie Friend UK Network

The Burden of Proof and Evidence

1. The burden of proving the allegations rests with the applicant;

2. The standard of proof is the balance of probabilities (Re B [2008] UKHL 35 ).

3. Lord Hoffmann in Re B: 'If a legal rule requires the facts to be proved on an issue, 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 0 and 1.'

4. Findings of fact in these cases must be based on evidence.

Munby LJ, in Re A (A Child) (Fact-finding hearing: Speculation) [2011] EWCA Civ 12 :

'It is an elementary proposition that findings of fact must be based on evidence, including inferences that can properly be drawn from the evidence and not on suspicion or speculation.'

5. The Court must take into account all the evidence and furthermore consider each piece of evidence in the context of all the other evidence.

6. The roles of the Court and the expert are distinct. It is the Court that is in the position to weigh up expert evidence against the other evidence (see A County Council & K, D, & L [ 2005] EWHC 144 (Fam) ; [2005] 1 FLR 851 per Charles J).

7. It is essential that the Court forms a clear assessment of the credibility and reliability of witnesses.

8. Where much of the evidence relies on the credibility of one or other witness and there is limited third party or independent evidence, the Court is particularly concerned with credibility.

9. Findings of fact must be based on evidence, including inferences that can properly be drawn from the evidence and not on mere suspicion, surmise, speculation or assertion: Re A (A Child) (Fact Finding Hearing: Speculation) [2011] 1 FLR 1817 and Re A (Application for a Care and Placement Orders: Local Authority Failings) [2016] 1 FLR 1.

10. It is common for witnesses in cases to tell lies in the course of the investigation and the hearing. The Court must be careful to bear in mind that a witness may lie for many reasons, such as shame, misplaced loyalty, panic, fear and distress, and the fact that a witness has lied about some matters does not mean that he or she has lied about everything (see R v Lucas [1981]).

11. Demeanour is often a poor measure of credibility, nervous witness can be telling the truth and a confident witness can be lying. The court must consider the internal consistency of the evidence and the external consistency of the evidence.

12. 'Revised Lucas Directions' A court should only have regard to a lie told by a witness if the court is satisfied that there is no innocent reason for the witness to have lied in their evidence.

13.The Court of Appeal considered the application of a Lucas direction Re H-C[2016] EWCA Civ 136. McFarlane LJ emphasised the following at paragraph 100:

“One highly important aspect of the Lucas decision, and indeed the approach to lies generally in the criminal jurisdiction, needs to be borne fully in mind by family judges. It is this: in the criminal jurisdiction the 'lie'; is never taken, of itself, as direct proof of guilt. As is plain from the passage quoted from Lord Lane's judgment in Lucas, where the relevant conditions are satisfied the lie is 'capable of amounting to a corroboration'.

In recent times the point has been most clearly made in the Court of Appeal Criminal Division in the case of R v Middleton [2001] Crim.L.R. 251.

'In my view 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.'

McKenzie Friend Training

Our Top Featured McKenzie Friends

We have already saved our clients over

£20 million in unnecessary legal fees

Our independent MaKenzie Friends provide support throughout the UK.

MaKenzie Friends operate as 'lay persons' who are not legally trained or qualified, but who will support you through the family court process as an 'informed friend'.

Our MaKenzie Friends can :

1) Provide personal support, understanding and mentoring.

2) Offer non legal advice and guidance.

3) To assist you with paperwork, forms and planning.

4) To organise your files and assist you in the smooth administration of the process.

5) To help research information.

6) As laypersons, discuss and offer advice, guidance and opinions on your case and strategy.

7) To assist with the management and timing of disclosures.

8) To assist with your statements, submissions and arguments.

9) To attend court with you under the formal guidance presented by the family courts.

10) To help you prepare your arguments and questions.

Philip Kedge is a retired police Chief Inspector and the founder and director of the McKenzie Friend UK Network. His aim is to remove lawyers from the family court with his own ethical business to reduce conflict and acrimony, to provide training and a cost effective McKenzie Friend national service and to reduce the emotional harm to children as a non-legal entity and informed friend.