Gloucester House, 4 Dukes Green Avenue
Feltham, TW14 0LR
B e f o r e :
| THE LONDON BOROUGH OF EALING
|- and –
(by Children's Guardian Ms Heather Gibbons)
Ms Aysha Miah (instructed by Sriharans Solicitors) for the First Respondent
Ms Laila Bhunno (solicitor advocate of Duncan Lewis Solicitors) for the Second Respondent
LD in person
Hearing dates: 17-19 January 2022
Crown Copyright ©
His Honour Judge Willans:
Allegations in the case
i) On a date when Lisa was between 3˝ and 7 LD sexually abused Lisa to include rape by both oral and penetrative means.
ii) LD would often be drunk and whilst in this state would grab Lisa, pulling her onto his lap and holding her in such a way as to make her uncomfortable.
iii) JS has failed to protect Lisa. In particular shortly after the events alleged at §5(i) above Lisa reported the assault to JS who told her not to worry but took no protective action. When Lisa further mentioned the assault to JS in March 2021 she was 'victim blamed' for the assault but no protective action was taken.
iv) JS has physically abused Lisa by regularly slapping her to the face. This was often related to occasions when Lisa made a mistake or achieved at school to a level lower than expected by JS. Separately JS has hit Lisa on her hands and knees and kicked her.
v) JS has emotionally abused Lisa to include threatening behaviour. She has responded to Lisa crying by calling her worthless and a 'mistake', she has threatened to burn Lisa with a candle, made threats to beat her and made as if to throw a metal chair at her. As a result of the above Lisa does not feel safe in her mother's care and is scared of her. This has led to Lisa wanting to have no contact with JS.
vi) When Lisa has expressed suicidal thoughts both JS and LD have yelled at and threatened to hit Lisa.
i) JS and LD are related. Lisa's parents were married (2005) but it would appear Lisa's father has not been involved in her life and his current whereabouts are not known. In 2003 JS came to this jurisdiction and LD was JS's only relative in the jurisdiction. Whilst pregnant with Lisa JS had to give up work and with JS in financial difficulty LD offered help and she moved into his home. Lisa was born in late 2006 and until she was aged about 11 (in 2018) she believed LD to be her biological father. Following her divorce in 2011 JS formed a relationship with LD.
ii) In 2010 Lisa was presented at accident and emergency with a minor injury to her vaginal area. Whilst this was a source of concern it ultimately led to no greater investigation. This event was at one point a discrete allegation within these proceedings, but the applicant no longer seeks a specific finding. In 2018 there was a report of Lisa appearing uncomfortable in LD's presence when at a school meeting. This was subject to a multi-agency discussion and problematic drinking on the part of LD was noted as a likely cause of family stress.
iii) On 22 June 2021 Lisa made allegations to her teachers at school of both sexual and physical abuse. Consequent upon the same the police were involved; Lisa underwent an ABE interview process, and following this Lisa become subject first to police protective powers and then further removal pursuant to section 20 and then under interim care provisions. Since 22 June 2021 Lisa has been separate from JS and LD and currently expressing a wish to have no contact.
iv) Both LD and JS have been subject to police interview and the police are currently reserving their position as to criminal proceedings. I have received a request for disclosure and there is a consent order agreed between the parties providing for such disclosure. This will be incorporated into the final order in this case.
v) The evidence alleges Lisa has made a number of reports as to sexual abuse over the years as follows: (a) to her mother contemporaneously with the alleged abuse; (b) to her cousin with whom she was then living in 2020; (c) to her mother in March 2021, and; (d) finally to the teachers at school (and thereafter to the police) in June 2021.
vi) Both JS and LD report separating in the days following the June allegations. I am told they have not resumed their relationship.
i) On 12 October 2021 I conducted a hearing, the central purpose of which was to consider directions with LD now present within the proceedings. This proved to be a problematic hearing in that I struggled to understand what LD was saying as a result of a mixture of technological and accent issues. I determined the hearings would forthwith need to be conducted on an attended basis.
ii) On 10 November 2021 I held an attended directions hearing. I wanted to consider the timetable for the case to include consideration as to whether the available 5 days would be sufficient to determine all issues. I also wanted to consider the question as to whether Lisa would be asked to give evidence. Initially I was told that no-one wanted Lisa to give evidence, however on examination it became clear to me that the position was not so straightforward and appropriate regard had not been had to the potential for special measures or to the expressed wish of the child to give evidence. I was concerned that inadequate regard had to been given to the requirements for a fair hearing. I was concerned future argument might suggest only limited weight be given to Lisa's evidence if she did not give evidence notwithstanding this was a case in which she had expressed a willingness to attend. The issue required closer consideration and I gave directions towards a Re W hearing.
iii) On 23 December 2021 I held a substantial PTR/Re W/directions hearing. I ultimately concluded Lisa should give evidence and over the course of a full day considered the detailed special measures that would apply when she was giving evidence. I agreed all questions to her should be put by me and that I should in advance of the hearing review all questions to be put. I set a timetable for this to be done. I also set the practical arrangements for the giving of her evidence to include Lisa's location, who would be with her and how both JS and LD would engage in the hearing when Lisa was giving evidence.
iv) I also sought to understand how JS would put her case. At that point her final evidence had not been filed and I wondered as to how JS would be approaching the issue of placement in circumstances in which, whatever my finding as to abuse, it would be highly likely that Lisa would continue to maintain the allegations and be oppositional to all contact with JS. In short there was no obvious reason as to why Lisa would not continue her position irrespective of my findings. How realistic was it for JS to seek Lisa's return in such circumstances? It was agreed that I would be updated following the filing of JS's final evidence were that to call into question the need for a final hearing/determination of all the issues in dispute. However, and importantly my directions required all questions for Lisa to be filed with me in any event.
v) Unfortunately, and subsequently, whilst I was informed JS accepted that threshold was crossed and would no longer be contesting the proposed final care plan, no party actively engaged with my directions with respect to questioning Lisa. I was left to chase these outstanding questions and it was only on the Friday preceding the commencement of the final hearing that I received final confirmation that no party had any questions for Lisa. I immediately decided Lisa should be stood down as a witness and I asked for an apology to be made to her for this late notice. I consider it unacceptable that such careful directions were breached and particularly so given the likely impact this might have had on Lisa. I am in no doubt that Lisa would have been anxious as the final hearing approached and there really is no excuse for the failure to keep to the directions or update me appropriately. It is now some time since a President of the Family Division cautioned practitioners against a lax attitude to compliance with directions. This was a case in which the directions were likely to have a direct impact on the welfare of the child. This should never happen again.
vi) At the outset of the final hearing, it was submitted on behalf of JS that her concessions were such as to remove the need for a fact-finding element to the hearing. I determined that the nature of the outstanding matters (particularly the sexual abuse allegations) was that that the fact finding needed to proceed. I concluded that future work with Lisa and any work towards reconciliation in the relationship between JS and Lisa would be severely hampered if these issues were left hanging. The hearing proceeded as intended.
"I was either 7 years older or younger when it happened…my mum…does night shift…our families lived together in one room….the other tenants in the house, they weren't there…I think my dad was drunk when it happened. But he said it [inaudible] and you know, I trusted him because he was my dad…so he told me it would be a game…I think it lasted throughout the night…I told my mum about it the next day and she said things would be okay. And then after that I could just forget about it, and then I started to remember during…the first quarantine…"
Lisa then reported raising the allegation with JS in more recently whilst they were in the car alone and her mother responding "Why didn't you do anything about it? Why didn't you try to stop him?". She described her mother 'victim blaming' her. She also reported telling her cousin what had happened and that she had been shocked.
"…we were getting ready for bed…my dad's there, he's already lying down in bed. So I get in, he, you know, he just wanted to play a game, that stuff. He undresses me, then he, you know, it's hard to actually say it, I'm sorry…He inserted his dick into my mouth first, you know, he said it would taste like chocolate…and then he inserted it into my vagina after a while, and he moved around a bit, and then he stayed still after a while, and then he pulled it out after a while, I don't know, I think I fell asleep after a while…and that's all I remember".
JS: Yeah that was long time ago – 7 years ago she mentioned it to me
X: The sexual assault?
X: Did she go into detail?
X: Did you ask her?
X: Did you approach partner about this?
JS Yeah several times – he denies it
X: What have you done to stop it happening again?
JS: She is not on her own now. He cannot hurt anymore I know that for sure.
X: Why did you not tell anyone?
JS: Yeah because I know when I disclose it would lead to something else – complications, Try to manage it myself
X: Complications for who?
JS: Everybody. For our life actually.
Physical abuse / verbal abuse
Failure to protect
Fact finding assessment and conclusions
1. I reject the suggestion of any fabrication inducement or contamination on the part of the teachers, social work team or police. The evidence does not support this allegation. The evidence supports a very clear and simple process under which in the space of less than 48 hours Lisa first made a summary allegation, she then produced a statement and was then interviewed. On my assessment the professionals conducted themselves in a sensible and appropriate fashion. Neither Ms F or B engaged with Lisa in such a way as to suggest they promoted or induced the allegations. I accept their evidence in this regard. In any event it is difficult to understand what motive they would have for doing the same or why Lisa would be vulnerable to such encouragement. Whilst I accept Ms B asked some limited questions to obtain clarification these aspects do not undermine the process. I accept Ms Lewars evidence as to her careful engagement with Lisa prior to the ABE.
2. I also reject the suggestion that the ABE interview was poorly managed and was such as to contravene ABE with the consequence that limited, or no reliance should be placed upon it. I have watched the video and whilst the audio is at times a little challenging it is possible to follow the process assisted by the transcript. I do not consider this was an example of poor interviewing. Rather the officer (after the requisite explanation of 'truth and lies') allowed Lisa to give a free-flowing account. The officer then summarised what she had been told and asked Lisa for any further details with regard to each aspect of the report. I agree the officer erred in wrongly leading Lisa as to LD undressing himself, but this is not material as Lisa corrected the officer in any event. I also believe the officer may have introduced the notion of the report to the cousin. However, this is equally immaterial given that there is a separate and independent confirmation of the same from the cousin (which is not challenged).
3. I next turn to the accounts given by Lisa. I have reviewed the ABE interview. Lisa presents as firm in her evidence and gives an account without hesitation. She does not waiver in her account and it is clear she is telling her story rather than saying something she has been told to say. Her account is clear and appropriately detailed. It includes elements which go beyond the bare minimum required and suggest a witness reporting something that has happened.
4. I accept Lisa appears highly anxious in the video with her legs nervously moving from side to side. I do not consider this indicates she is lying as is suggested by JS. Rather it suggests an anxious and stressed child. The interview concerns deeply embarrassing events and it is as likely she is reflecting anxiety in telling a truthful story as a false one.
5. I bear in mind Lisa has remained firm in her account and indeed was willing to come to Court to give evidence. This willingness was expressed as being cautious and she was relieved when this was not required. However, I reflect on this as being indicative of her firm wish to give her account. This is a relatively modest point in the overall assessment, but I do not overlook it. Until Friday of the preceding week Lisa would have known she was going to be examined. At no point did she pull back from doing so.
6. I also bear in mind that this is not an allegation which came 'out of the blue' in 2021. I cannot overlook the fact that on everyone's case Lisa made her first report in this regard at least 7 years ago. This is relevant as it calls into question the suggestion that this report has only been made as a result of recent events. Neither JS nor LD were able to reconcile their explanation with the historic report. But this was not only a report made in 2021 to the school. I accept the report was made to cousin in 2020 (this is not in dispute) and was repeated in 2021 to JS. In this regard I accept Lisa's account which is consistent with the overall picture and is in reality not challenged by her mother who speaks of not being able to recall the conversation.
7. I consider it is relevant that the allegation has remained consistent throughout and there have been no marked changes in account.
8. As noted above Lisa gave detail which was plausible and in no way undermined her account. She gave details which might be expected to be recalled and was less clear on points that might be expected to be less clear (exact dating and timings). Her evidence as to her experience of the assault seemed to me one which had the ring of truth about it and did not have the sense of an account borrowed from some other source.
9. I consider the early report to be significant. As noted above it gainsays the suggestion of contemporaneous events leading to the report. In simple terms a child appears to have reported her stepfather sexually abusing her. There is no explanation as to why Lisa might have mistakenly made this suggestion at the time or alternatively why she might have lied. The simple fact of the allegation at this time has some probative value. That I do not have a full account of what was said is due to JS being unable or unwilling to provide the same (see below).
10. I consider significant the account (or lack of account) given by both LD and JS of the conversations that surrounded this allegation at the outset. It is now clear there was such a report and equally clear LD and JS spoke about it. In this regard I reject the suggestion that the conversation with X reported above was anything other than an essentially correct account of what had taken place. In essence this amounts to an admission against interests by JS and is more reliable for this reason. The notion that it was in some way taken out of context by PC McDermott is implausible when one considers the nature of the responses and the detail supplied by JS. This was not a simple yes and no interview but included responses which only JS could supply.
11. That leaves what I consider is an incredible absence of detail from both LD and JS as to what was said at the time the original report was made. It is almost unbelievable that such an allegation could be made and yet neither can now remember the detail of the conversations at that time. In their written evidence neither in reality accepted the report and it was only when forced to do so by the evidence that the admissions were made. It is noteworthy that JS attempts to explain the report by reference to a 'game'. I cannot but help draw attention to the fact that this is how Lisa explained the commencement of the event and this reinforces the consistency of her report.
12. I am left with two choices in this regard. I simply cannot identify a plausible third option. Either I am not now being told what was said, and that would likely be because it now makes for uncomfortable consideration and is felt to likely be harmful to LD and/or JS or there was no conversation at the time because LD and/or JS wished to avoid a detailed conversation. In my assessment either option is deeply problematic. I reject the vague account given by both as whilst I would accept some degree of blurring of memory it is fanciful that both would have all but forgotten the essential terms of the conversation. This after all was a conversation in which a child had alleged sexual abuse by a family member. Furthermore, such vagueness has to be seen in the light of the ability of JS to detail to X (a) the account being given; (b) confronting LD on several occasions, and: (c) the suggested rationale for not doing more.
13. Whilst it is not for LD or JS to disprove the allegation, I simply have no rationale as to why Lisa would have made the allegation if something had not taken place. I have no account that might explain a mistake, if such was plausible. I have a clear and consistent account from Lisa which she stands by. In contrast I have a deeply concerning lack of detail from both adults when one would plainly be expected. I ask myself how it is that the child can still give an account, but the adults are unable to do so?
14. I also have the question of the approach I should take to the fact that Lisa has given an account, that I have required her to attend and made provision for the same, and that both LD and JS have chosen not to question her. This is not the case of weighing the evidence of a child who does not give evidence. This is analogous to the approach to a witness who is made available but not challenged. I consider myself obliged to take this approach. It does mean the evidence inevitably has greater weight.
15. I also bear in mind the expert evidence. I make clear that I would not make findings as a result of the opinions of the experts as to the likely truth of the allegation. That is after all a matter for me. However, I do weigh in my assessment the views of the expert as to Lisa as suffering from PTSD/anxiety and her presentation being consistent with a traumatic history of abuse. I recognise the expert evidence does not rule out a range of causes for such PTSD / anxiety or that allegations can be fabricated. However, in my assessment this expert evidence is consistent with and supportive of my observations rather than inconsistent with the same.
16. On my assessment of the evidence the incident likely took place when Lisa was about 7. This dating is far more consistent with the global evidence than with the earlier dating to age 4. This would only seem to be under consideration due to Lisa talking about not being at school at the time but there is of course a whole host of reasons why she might not have been at school at the time (she might for instance have been on holiday). Elsewhere there is consistent reference to a time around 7 years of age.
17. I have borne in mind the absence of a further allegation. Why would it be that this was an isolated event? Whilst it is not for me to explain this, I do consider whether this might undermine the allegation. However, it is relevant that a report was made. In my assessment the fact of a report may reduce the chances of repetition in that an offending party may back away from further misconduct for fear of what will happen. Further I cannot exclude the possibility that this conduct was affected by alcohol consumption on the part of LD. Lisa reports LD as being 'drunk'. It is possible LD recognised the impropriety of his action when sober and this conditioned his future conduct. But the absence of a further report does not in my judgment diminish the substance of the report itself.
18. I have also borne in mind that LD is a man of good character. However, as a matter of reality this does not preclude such behaviour and the Court is more than familiar with such issues arising in the context of an absence of any history of offending.
Welfare assessment and conclusions
i) To raise any corrections or requests for clarification by 4pm on 31 January 2022
ii) In the light of the fact that this judgment will likely be published on Bailii to inform me as to whether there are any necessary corrections to preserve anonymity
iii) To send me a draft order by 4pm on 1 February 2022. The order should incorporate a disclosure paragraph (or be accompanied by a separate order) dealing with the proposed police disclosure order.
His Honour Judge Willans
Burden and standard of proof
" My Lords, for that reason I would go further and announce loud and clear that the standard of proof in finding the facts necessary to establish the threshold under s 31(2) or the welfare considerations in s 1 of the 1989 Act is the simple balance of probabilities, neither more nor less. Neither the seriousness of the allegation 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.
 As to the seriousness of the consequences, they are serious either way. A child may find her relationship with her family seriously disrupted; or she may find herself still at risk of suffering serious harm. A parent may find his relationship with his child seriously disrupted; or he may find himself still at liberty to maltreat this or other children in the future."
"In this country we do not require documentary proof. We rely heavily on oral evidence, especially from those who were present when the alleged events took place. Day after day, up and down the country, on issues large and small, judges are making up their minds whom to believe. They are guided by many things, including the inherent probabilities, any contemporaneous records, any circumstantial evidence tending to support one account rather than the other, and their overall impression of the characters and motivation of the witnesses."
" 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."
Approach to Evidence
" Evidence cannot be evaluated and assessed 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."
"[101B] I must now put this into perspective by noting, and emphasising, the width of the range of facts which may be relevant when the court is considering the threshold conditions. The range of facts which may properly be taken into account is infinite. Facts including the history of members of the family, the state of relationships within a family, proposed changes within the membership family, parental attitudes, and omissions which might not reasonably have been expected, just as much as actual physical assaults. They include threats, and abnormal behaviour by a child, and unsatisfactory parental responses to complaints or allegations. And facts, which are minor or even trivial if considered in isolation, taken together may suffice to satisfy the court of the likelihood of future harm. The court will attach to all the relevant facts the appropriate weight when coming to an overall conclusion on the crucial issue."
Evidence of the parents
Thirdly, that the fact, if fact it be, that the respondents (here, the parents) fail to prove in a balance of probabilities an affirmative case that they have chosen to set up by way of defence, does not of itself establish the local authority's case. As His Honour Judge Clifford Bellamy recently said in Re FM (A Child: fractures: bone density)  EWFC B26, para 122, and I respectfully agree:
"It is the local authority that seeks a finding that FM's injuries are non-accidental. It is for the local authority to prove its case. It is not for the mother to disprove it. In particular it is not for the mother to disprove it by proving how the injuries were in fact sustained. Neither is it for the court to determine how the injuries were sustained. The court's task is to determine whether the local authority has proved its case on the balance of probability. Where, as here, there is a degree of medical uncertainty and credible evidence of a possible alternative explanation to that contended for by the local authority, the question for the court is not 'has that possible alternative explanation been proved' but rather it should ask itself, 'in the light of that possible alternative explanation can the court be satisfied that the local authority has proved its case on the balance of probability'."
The findings made by the judge must be based on all the available material, not just the scientific or medical evidence; and all that evidence must be considered in the wider social and emotional context: A County Council v X, Y and Z (by their Guardian)  2 FLR 129. This was expressed as "the expert advises and the judge decides" in Re Be (Care: Expert Witnesses)  1 FLR 667.
"(a) that the roles of the court and the expert are distinct, and
(b)that it is the court that is in the position to weigh the expert evidence against its findings on the other evidence, and thus for example descriptions of the presentation of a child in the hours or days leading up to his or her collapse, and accounts of events given by carers."
"…in cases concerning alleged non accidental injury to children properly reasoned expert medical evidence carries considerable weight, but in assessing and applying it the judge must always remember that he or she is the person who makes the final decision;"
"…In a case where the medical evidence is to the effect that the likely cause is non accidental and thus human agency, a court can reach a finding on the totality of the evidence either (a) that on the balance of probability an injury has a natural cause, or is not a non accidental injury, or (b) that a local authority has not established the existence of the threshold to the civil standard of proof;"
"I am therefore able to reach a conclusion as to cause of death and injury that is different to, or does not accord with, the conclusion reached by the medical experts as to what they consider is more likely than not to be the cause having regard to the existence of an alternative or alternatives which they regard as reasonable (as opposed to fanciful or simply theoretical) possibilities. In doing so I do not have to reject the reasoning of the medical experts, rather I can accept it but on the basis of the totality of the evidence, my findings thereon and reasoning reach a different overall conclusion."
"The judge in care proceedings must never forget that today's medical certainty may be discarded by the next generation of experts or that scientific research would throw light into corners that are presently dark" Butler-Sloss P in Re U Re B  EWCA Civ 567.
(1) In estimating the weight (if any) to be given to hearsay evidence in civil proceedings the court shall have regard to any circumstances from which any inference can reasonably be drawn as to the reliability or otherwise of the evidence.
(2) Regard may be had, in particular, to the following—
(a) whether it would have been reasonable and practicable for the party by whom the evidence was adduced to have produced the maker of the original statement as a witness;
(b) whether the original statement was made contemporaneously with the occurrence or existence of the matters stated;
(c) whether the evidence involves multiple hearsay;
(d) whether any person involved had any motive to conceal or misrepresent matters;
(e) whether the original statement was an edited account, or was made in collaboration with another or for a particular purpose;
(f) whether the circumstances in which the evidence is adduced as hearsay are such as to suggest an attempt to prevent proper evaluation of its weight.
(endorsing Munby P's reminder in Re A (a Child)  EWFC 11):
"iii) Hearsay evidence about issues that appear in reports produced on behalf of the local authority, although admissible, has strict limitations if a parent challenges that hearsay evidence by giving contrary oral evidence at a hearing. If the local authority is unwilling or unable to produce a witness who can speak to the relevant matter by first hand evidence, it may find itself in "great, or indeed insuperable" difficulties in proving the fact or matter alleged by the local authority but which is challenged."
"98. The decision in R v Lucas has been the subject of a number of further decisions of the Court of Appeal Criminal Division over the years, however the core conditions set out by Lord Lane remain authoritative. The approach in R v Lucas is not confined, as it was on the facts of Lucas itself, to a statement made out of court and can apply to a "lie" made in the course of the court proceedings and the approach is not limited solely to evidence concerning accomplices.
99. In the Family Court in an appropriate case a judge will not infrequently directly refer to the authority of R v 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.
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  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".
54. That a witness's dishonesty may be irrelevant in determining an issue of fact is commonly acknowledged in judgments, and with respect to the Recorder as we see in her judgment at , in formulaic terms:
"that people lie for all sorts of reasons, including shame, humiliation, misplaced loyalty, panic, fear, distress, confusion and emotional pressure and the fact that somebody lies about one thing does not mean it actually did or did not happen and / or that they have lied about everything".
But this formulation leaves open the question: how and when is a witness's lack of credibility to be factored into the equation of determining an issue of fact? In my view, the answer is provided by the terms of the entire 'Lucas' direction as given, when necessary, in criminal trials.
55. Chapter 16-3, paragraphs 1 and 2 of the December 2020 Crown Court Compendium, provides a useful legal summary:
"1. A defendant's lie, whether made before the trial or in the course of evidence or both, may be probative of guilt. A lie is only capable of supporting other evidence against D if the jury are sure that: (1) it is shown, by other evidence in the case, to be a deliberate untruth; i.e. it did not arise from confusion or mistake; (2) it relates to a significant issue; (3) it was not told for a reason advanced by or on behalf of D, or for some other reason arising from the evidence, which does not point to D's guilt.
2. The direction should be tailored to the circumstances of the case, but the jury must be directed that only if they are sure that these criteria are satisfied can D's lie be used as some support for the prosecution case, but that the lie itself cannot prove guilt. …"
56. In Re H-C (Children)  EWCA Civ 136 @ , McFarlane LJ, as he then was said:
"99 In the Family Court 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.
100 … 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."
57. To be clear, and as I indicate above, a 'Lucas direction' will not be called for in every family case in which a party or intervenor is challenging the factual case alleged against them and, in my opinion, should not be included in the judgment as a tick box exercise. If the issue for the tribunal to decide is whether to believe X or Y on the central issue/s, and the evidence is clearly one way then there will be no need to address credibility in general. However, if the tribunal looks to find support for their view, it must caution itself against treating what it finds to be an established propensity to dishonesty as determinative of guilt for the reasons the Recorder gave in . Conversely, an established propensity to honesty will not always equate with the witness's reliability of recall on a particular issue.
58. That a tribunal's Lucas self-direction is formulaic, and incomplete is unlikely to determine an appeal, but the danger lies in its potential to distract from the proper application of its principles. In these circumstances, I venture to suggest that 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. The principles of the direction will remain the same, but they must be tailored to the facts and circumstances of the witness before the court.
'Failure to Protect'
"We emphasise the words "global, holistic evaluation". This point is crucial. The judicial task is to evaluate all the options, undertaking a global, holistic and multi-faceted evaluation of the child's welfare which takes into account all the negatives and the positives, all the pros and cons, of each option.
What is required is a balancing exercise in which each option is evaluated to the degree of detail necessary to analyse and weigh its own internal positives and negatives and each option is then compared, side by side, against the competing option or options."