PROVING MATTERS BY EVIDENCE: A LESSON FROM THE FAMILY COURT

It is certain that most lawyers involved in childcare matters will read the decision of Sir James Munby in Darlington Borough Council -v- M [2015] EWFC 11.  However there are points made in that judgment of general relevance to all civil practitioners. It shows how easy it is to overlook the point that, at a trial, matters have to be proven by evidence.  The case shows how evidence can be distorted, often not deliberately, and how matters can be asserted by a party which is, essentially, surmise and opinion.

THE CASE

The local authority was applying for a care order, and ultimately adoption of a one year old boy.

THE JUDGE’S CRITICISM OF THE CASE AS PRESENTED: THE NEED FOR EVIDENCE

1. In the light of the way in which this case has been presented and some of the submissions I have heard, it is important always to bear in mind in these cases, and too often, I fear, they are overlooked, three fundamentally important points. The present case is an object lesson in, almost a textbook example of, how not to embark upon and pursue a care case.
2. The first fundamentally important point relates to the matter of fact-finding and proof. I emphasise, as I have already said, that it is for the local authority to prove, on a balance of probabilities, the facts upon which it seeks to rely. I draw attention to what, in Re A (A Child) (No 2) [2011] EWCA Civ 12, [2011] 1 FCR 141, para 26, I described as:

“the 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.”

This carries with it two important practical and procedural consequences.

1. The first is that the local authority, if its case is challenged on some factual point, must adduce proper evidence to establish what it seeks to prove. Much material to be found in local authority case records or social work chronologies is hearsay, often second- or third-hand hearsay. Hearsay evidence is, of course, admissible in family proceedings. But, and as the present case so vividly demonstrates, a local authority which is unwilling or unable to produce the witnesses who can speak of such matters first-hand, may find itself in great, or indeed insuperable, difficulties if a parent not merely puts the matter in issue but goes into the witness-box to deny it. As I remarked in my second View from the President’s Chambers, [2013] Fam Law 680:

“Of course the court can act on the basis of evidence that is hearsay. But direct evidence from those who can speak to what they have themselves seen and heard is more compelling and less open to cross-examination. Too often far too much time is taken up by cross-examination directed to little more than demonstrating that no-one giving evidence in court is able to speak of their own knowledge, and that all are dependent on the assumed accuracy of what is recorded, sometimes at third or fourth hand, in the local authority’s files.”

It is a common feature of care cases that a local authority asserts that a parent does not admit, recognise or acknowledge something or does not recognise or acknowledge the local authority’s concern about something. If the ‘thing’ is put in issue, the local authority must both prove the ‘thing’ and establish that it has the significance attributed to it by the local authority.

1. The second practical and procedural point goes to the formulation of threshold and proposed findings of fact. The schedule of findings in the present case contains, as we shall see, allegations in relation to the father that “he appears to have” lied or colluded, that various people have “stated” or “reported” things, and that “there is an allegation”. With all respect to counsel, this form of allegation, which one sees far too often in such documents, is wrong and should never be used. It confuses the crucial distinction, once upon a time, though no longer, spelt out in the rules of pleading and well understood, between an assertion of fact and the evidence needed to prove the assertion. What do the words “he appears to have lied” or “X reports that he did Y” mean? More important, where does it take one? The relevant allegation is not that “he appears to have lied” or “X reports”; the relevant allegation, if there is evidence to support it, is surely that “he lied” or “he did Y”.
2. Failure to understand these principles and to analyse the case accordingly can lead, as here, to the unwelcome realisation that a seemingly impressive case is, in truth, a tottering edifice built on inadequate foundations.
3. The second fundamentally important point is the need to link the facts relied upon by the local authority with its case on threshold, the need to demonstrate why, as the local authority asserts, facts A + B + C justify the conclusion that the child has suffered, or is at risk of suffering, significant harm of types X, Y or Z. Sometimes the linkage will be obvious, as where the facts proved establish physical harm. But the linkage may be very much less obvious where the allegation is only that the child is at risk of suffering emotional harm or, as in the present case, at risk of suffering neglect. In the present case, as we shall see, an important element of the local authority’s case was that the father “lacks honesty with professionals”, “minimises matters of importance” and “is immature and lacks insight of issues of importance”. May be. But how does this feed through into a conclusion that A is at risk of neglect? The conclusion does not follow naturally from the premise. The local authority’s evidence and submissions must set out the argument and explain explicitly why it is said that, in the particular case, the conclusion indeed follows from the facts. Here, as we shall see, the local authority conspicuously failed to do so.
4. In the light of the local authority’s presentation of this case, it is important always to bear in mind, and again, I fear, it is too often misunderstood or overlooked, the point made by Macur LJ in Re Y (A Child) [2013] EWCA Civ 1337, para 7, in a judgment agreed by both Arden and Ryder LJJ:

“(3) In upholding the criticism made of the judgment as to inadequate identification of risk and consequent evaluation of likelihood of that risk in subsequent analysis of measures which mitigate that risk, that is articulation of the proportionality of the order sought and subsequently made, the judge was not assisted by the dearth of relevant evidence which should have supplied, in particular by the local authority. Relevant evidence in this respect is not and should not be restricted to that supportive of the local authority’s preferred outcome.

(4) I regret that quite apart from a lamentable lack of evidence which would have enabled the judge to conduct a rigorous analysis of options objectively compliant with the twins’ Convention rights, whether favoured by the local authority and/or Children’s Guardian or not, I consider the case appears to have been hijacked by the issue of the mother’s dishonesty. Much of the local authority’s evidence is devoted to it. The Children’s Guardian adopts much the same perspective. It cannot be the sole issue in a case devoid of context. There was very little attention given to context in this case. No analysis appears to have been made by any of the professionals as to why the mother’s particular lies created the likelihood of significant harm to these children and what weight should reasonably be afforded to the fact of her deceit in the overall balance (emphasis added)”

OTHER OBSERVATIONS ON THE EVIDENCE

The judge was critical of the weak factual nature of the local authority’s case

1. 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.

LET’S LOOK AT HOW THE EVIDENCE WAS “DEVELOPED”

There are interesting examples of how the evidence “developed” in the hands of the local authority.

1. The first relates to a fatal railway accident whilst the father was still at school in which two of his friends were killed, a matter which the father raised with SW1 in their first assessment session on 30 October 2013. A subsequent entry in the chronology prepared by SW1 contains, against the date 30 October 2013:

“Telephone call to Durham Constabulary of whom [sic] advised that there was no evidence to support that [he] had been present during this incident and therefore appears to have fabricated his presence.”

The illogical leap from the premise to the conclusion is astonishing, and worrying. It is quite unclear whether the conclusion (“therefore …”) was one expressed by the police or inferred by the social worker. The other documentary reference, seemingly referring to the same telephone call, is in a case note also dated 30 October 2013 made by SW1:

“Information received to advise [father] has fabricated the information in relation to the incident … it has been confirmed that [he] was not present during this incident. Thus causing concern to the Local Authority as to why he would fabricate his presence.”

The difference between the two records is apparent. One has to question whether SW1 understood the significance of the distinction – crucial if it was to be said that the father was lying – between “there was no evidence to support that [he] had been present” and “it has been confirmed that [he] was not present”. Be that as it may, which statement is correct? I do not know and the local authority was unable to enlighten me.

1. In the schedule of findings the allegation (paragraph 4) is that:

“He appears to have lied in an assessment about being present at a fatal accident during his childhood.”

I have already criticised this form of allegation. Very properly, by the end of the hearing, Mr Oliver had abandoned the allegation. Given the inadequacy of the evidence available to the local authority to make good its case it is surprising that it was ever raised and concerning that it was still being pursued well into the final hearing.

ANOTHER EXAMPLE

There were other examples of matters being asserted which were not supported by evidence.

1. The local authority alleges, as we have seen, that that father “has numerous convictions. This reflects SW1’s witness statement, which refers to “offences on his record of a concerning nature”, though the assessment more accurately refers to them as “two non-convictions … on his record”, which is a reference to the cautions I have referred to already under (A).
2. The cautions apart, there is simply no basis for this allegation. It therefore adds nothing. It was abandoned by Mr Oliver. It should never have been made.

FAILURE TO PROVE THE CASE

The judge commented on the basic failure to prove the case by evidence.

i) In a significant number of very material respects the local authority has simply failed to prove the factual underpinning of its case.

ii) SW1’s work was seriously flawed. Neither SW2 nor CG seems to have explored or analysed in any detail the underlying factual basis of the local authority’s case. In large part they simply accepted SW1’s factual assumptions. Insofar as they conducted independent investigations with the father, each met him only once, SW2 for about 75-80 minutes, CG for only 45 minutes.

iii) The local authority was too willing to believe the worst of the father, which led to it being unduly dismissive of what he was saying.

iv) The local authority failed to link the facts it relied upon with its assertions that A was at risk. Nor did CG.

v) The local authority and CG did not sufficiently reappraise the case once it had become clear that the father was no longer in a relationship with either the mother or J.

ITS ALL ABOUT THE FACTS: GET THE FACTS STRAIGHT AND KNOW HOW YOU CAN PROVE THEM

Some may be pondering whether this has any relevance to civil litigation. It clearly does because the basic failure to address facts and evidence is a common feature of many civil trials.  Matters are often asserted in witness statements which are either opinion, comment or matters upon which the witness cannot give any direct evidence.  There are numerous examples on this blog.

1. Look at Jackson L.J’s guidance in Nicholls -v- Ladbrokes Betting & Gambling Ltd [2013] EWCA Civ 1963 where the (successful) defendant had costs reduced by 20% partially because of opinionated witness evidence as opposed to facts.

2. Look at an earlier post The Dangers of Allowing Witnesses to give their Opinions  (it hinders rather than helps your case).

3. Look at the way that the plaintiff nearly came to grief and lost her home because her solicitors used an affidavit by her to put forward legal arguments in Alex Lawrie Factors Ltd -v- Morgan[1999] The Times 18 August. The defendant was disputing a claim by the claimant on the grounds that when she signed a document she did not understand its full effect and should have received independent advice. Her affidavit went into great detail in relation to the case law involved and explained how these cases applied to her.  The trial judge concluded that a witness with such a detailed knowledge of the case law must have understood the position and gave judgment to the claimant.  On appeal it became clear that the defendant had little input into the drafting of her statement and that, in fact, she had difficulties with basic literacy. Lord Justice Brooke observed that:-

“This case is a very good warning of the grave dangers which may occur when lawyers put into witnesses’ mouths, in the affidavits which they settle for them, a sophisticated legal argument which in effect represent the lawyer’s arguments in the case to which the witnesses themselves would not be readily able to speak if cross-examined on their affidavits.  Affidavits are there for the witness to say in his or her own words what the relevant evidence is and are not to be used as a vehicle for complex legal argument. Those considerations apply just as much to statements of truth under the Civil Procedure Rules as they do to affidavits.”

4. Look at the observations of Peter Smith J in the statement he made arising out of the Farepak litigation.

“47. The courts have regularly reminded parties that the purpose of witness statements is to replace oral testimony. It is not to rehearse arguments, it is not to set out a case and whilst it necessarily has to be drafted with the collaboration of lawyers, it should not be a document created in the language of lawyers by the lawyers, because the lawyers do not go into the witness box and defend it. This is unfair to defendants, as this case showed. It is also unfair to the witnesses. “

5. Finally look at the judgment of HH Judge Dean QC in E.D and F. Man Liquid Products Limited v Patel [2002] 1706 EWHC (QB) provides a classic example of the dangers of a statement giving opinion evidence . The judge was concerned that a lengthy statement prepared by a solicitor contained pages (and pages) of opinion and comments on the law:

“Witness statements are not the place for argument. It means you have to read everything twice…. A lot of it is tendentious comment which is bound up with fact. I think this witness statement is an example of what a witness statement should not be whether in the Commercial Court or anything else. It is a tendentious advocate’s document. I am minded to disallow the cost of it actually… Look how long it goes on for. It goes on for 41 paragraphs. That is just a solicitor giving information on what his client has said. He expresses a reference to his client’s belief which is not only irrelevant but inadmissible. I think that this is a statement of an enthusiastic solicitor who wishes he was an advocate much of this. It adds to the time of the hearing and it adds to the time of preparation.

“Here we have the Commercial Court practice which says that witness statements must comply with the rules. They should be as concise as the circumstances allow. They should not engage in argument. They must indicate which statements are made from the witness’s own knowledge and which are from other sources and state what is the source of the information and belief.”

RELATED POSTS

• Witness statements are for facts: knowing the difference between evidence and submissions (and why it matters).
• Drafting witness statements: essential guidance from an authoritative source that every litigator should read.
• A working example of the dangers of not taking a full witness statement: disaster can strike.
• The dangers of letting witnesses give their opinions: it hinders rather than helps your case

OTHER POSTS ON WITNESS CREDIBILITY

This issue is also discussed in a number of other posts.

1. Litigators must know about credibility.

2. Witness Statements and Witness Evidence: More about Credibility.

3. Which Witness will be believed?Is it all a lottery?

4. The witnesses say the other side is lying: What does the judge do?

5. Assessing the reliability of witnesses: How does the judge decide?

6.  Which witness is going to be believed? A High Court case.

7. The Mitchell case and witness evidence: credibility, strong views and reliability.

8. Witness statements and witness credibility: getting back to basics

9. Witness credibility: what factors does the court look at? Another example from the Mercantile Court.