“32. I have in mind the guidance given by Baker J (as he then was) in Gloucestershire CC v RH and others[2012] EWHC 1370 (Fam) and in particular at [42] his point 7: “Seventh, the evidence of the parents and any other carers is of the utmost importance. It is essential that the court forms a clear assessment of their credibility and reliability. 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 (see Re W and another (Non- accidental injury) [2003] FCR 346).” 33. The reasoning of Baker J in Gloucestershire CC v RH and others[2012] EWHC 1370 (Fam) was approved by the President in Re M (Fact-Finding Hearing: Injuries to Skull)[2013] 2 FLR 322 ,[2012] EWCA Civ 1710 at [30]. More recently, the courts have looked at the issue of what can, in broad terms, be identified as the fallibility of oral evidence. The issue of the extent to which a court should rely on the recollection of witnesses and the fallibility of human memory first arose in a commercial setting through observations made by Leggatt J (as he then was) in Gestmin SGPS SA v Credit Suisse (UK) Ltd and Another[2013] EWHC 3560 (Comm) (‘Gestmin’) at [15] – [22], and more recently in Blue v Ashley[2017] EWHC 1928 (Comm) at [68] – [69]. 34. In the Gestmin case, at [22], Leggatt J expressed the view that the best approach for a judge to adopt in a commercial trial was to place little, if any, reliance on a witness’s recollection of what was said in meetings and conversations; rather factual findings were to be based on inferences drawn from documentary evidence and known or probable facts. This was followed in Blue v Ashley, where Leggatt J at [70], having rehearsed his own earlier observations in Gestmin, approached evidence of a crucial conversation in a way that was “[m]indful of the weaknesses of evidence based on recollection”. 35. The Court of Appeal considered both of these cases in Kogan v Martin and Others[2019] EWCA Civ 1645 (‘Kogan’). This was a case where the judge at first instance had wrongly regarded Leggatt J’s statements in Gestmin and Blue v Ashley as an “admonition” against placing any reliance at all on the recollections of witnesses. 36. The Court of Appeal in Kogan emphasised the need for a balanced approach to the significance of oral evidence regardless of jurisdiction. Although it was a copyright dispute between former partners, the judgment was a judgment of the court with wider implications. 37. In relation to the treatment of the evidence of the Claimant, the Court in Kogan said: “88…. We start by recalling that the judge read Leggatt J's statements in Gestmin v Credit Suisse and Blue v Ashley as an "admonition" against placing any reliance at all on the recollections of witnesses. We consider that to have been a serious error in the present case for a number of reasons. First, as has very recently been noted by HHJ Gore QC in CBX v North West Anglia NHS Trust [2019] 7 WLUK 57, Gestmin is not to be taken as laying down any general principle for the assessment of evidence. It is one of a line of distinguished judicial observations that emphasise the fallibility of human memory and the need to assess witness evidence in its proper place alongside contemporaneous documentary evidence and evidence upon which undoubted or probable reliance can be placed. Earlier statements of this kind are discussed by Lord Bingham in his well-known essay The Judge as Juror: The Judicial Determination of Factual Issues (from The Business of Judging, Oxford 2000). But a proper awareness of the fallibility of memory does not relieve judges of the task of making findings of fact based upon allof the evidence. Heuristics or mental short cuts are no substitute for this essential judicial function. In particular, where a party's sworn evidence is disbelieved, the court must say why that is; it cannot simply ignore the evidence. […] 41. The court must, however, be mindful of the fallibility of memory and the pressures of giving evidence. The relative significance of oral and contemporaneous evidence will vary from case to case. What is important, as was highlighted in Kogan, is that the court Judgment assesses all the evidence in a manner suited to the case before it and does not inappropriately elevate one kind of evidence over another.”
“57. I accept that there may occasionally be cases where, at the conclusion of the evidence and submissions, the court will ultimately say that the local authority has not discharged the burden of proof to the requisite standard and thus decline to make the findings. That this is the case goes hand in hand with the well-established law that suspicion, or even strong suspicion, is not enough to discharge the burden of proof. The court must look at each possibility, both individually and together, factoring in all the evidence available including the medical evidence before deciding whether the "fact in issue more probably occurred than not" (Re B: Lord Hoffman). 58. In my judgment what one draws from Popi M and Nulty Deceased is that: i) Judges will decide a case on the burden of proof alone only when driven to it and where no other course is open to him given the unsatisfactory state of the evidence. ii) Consideration of such a case necessarily involves looking at the whole picture, including what gaps there are in the evidence, whether the individual factors relied upon are in themselves properly established, what factors may point away from the suggested explanation and what other explanation might fit the circumstances. iii) The court arrives at its conclusion by considering whether on an overall assessment of the evidence (i.e. on a preponderance of the evidence) the case for believing that the suggested event happened is more compelling than the case for not reaching that belief (which is not necessarily the same as believing positively that it did not happen) and not by reference to percentage possibilities or probabilities.”
“28. Of course in the present case, the issue concerned an alleged course of conduct spread across years. I do not accept that the Judge should have been driven by the dicta in the cases cited by the Appellants to exclude the impressions created by the manner in which B and C gave their evidence. In family cases at least, that would not only be unrealistic but, as I have said, may deprive a judge of valuable insights. There will be cases where the manner in which evidence is given about such personal matters will properly assume prominence. As Munby LJ said in Re A (A Child) (No. 2)[2011] EWCA Civ. 12 said at [104] in a passage described by the Judge as of considerable assistance in the present case: “Any judge who has had to conduct a fact-finding hearing such as this is likely to have had experience of a witness - as here a woman deposing to serious domestic violence and grave sexual abuse - whose evidence, although shot through with unreliability as to details, with gross exaggeration and even with lies, is nonetheless compelling and convincing as to the central core… Yet through all the lies, as experience teaches, one may nonetheless be left with a powerful conviction that on the essentials the witness is telling the truth, perhaps because of the way in which she gives her evidence, perhaps because of a number of small points which, although trivial in themselves, nonetheless suddenly illuminate the underlying realities.” 29. Still further, demeanour is likely to be of real importance when the court is assessing the recorded interviews or live evidence of children. Here, it is not only entitled but expected to consider the child’s demeanour as part of the process of assessing credibility, and the accumulated experience of listening to children’s accounts sensitises the decision-maker to the many indicators of sound and unsound allegations.”
“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.”
“182. If ever there was a case in which the court had to retain the big picture, both for the controversial and the uncontroversial evidence, this was it. Much of my time over the last four weeks in preparing this judgment has been spent not in writing or organising but in careful reflection on that big picture. In the end, I have come to a conclusion that the Local Authority has failed to prove its case to the requisite standard. In reaching that position, I also have to recognise that I have no clear answer to give as to how S died, since, and this is really common ground, none of the canvassed alternative suggestions could be clearly established. … 187. Since this is at least the second time that I have concluded after a long forensic enquiry that I do not know what has happened, I need to ask myself one hard question: is this simply a failure of judicial nerve to make a finding against a family such as this, the finding which is nevertheless required by the evidence as a whole? I ask that question not just because it occurred to me but also because I recognise that decisions in cases like this are not driven exclusively by the process of reasoning. 188. There is an element in human judgment that lies beyond cold rationality as every experienced trial judge soon comes to appreciate. In order to test that, I have reflected carefully upon the position as it would be were I to have found that the Local Authority had indeed established their case and this child had been sexually assaulted and killed by one or more members of a family who had then conspired to conceal the truth from all legitimate enquiry. I discovered that such a conclusion would be an affront to my judicial conscience.”
“I should guard against 'Hindsight Bias' and 'Outcome Bias' which is described in The Department of Education's Guidance on 'Improving the Quality of Serious Case Review published in June 2013 as follows: ‘Hindsight bias occurs when actions that should have been taken in the time leading up to an incident seem obvious because all the facts become clear after the event. This tends towards a focus upon blaming staff and professionals closest in time to the incident. Outcome bias occurs when the outcome of the incident influences the way it is analysed. For example when an incident leads to a death it is considered very differently from an incident that leads to no harm, even when the type of incident is exactly the same. If people are judged one way when the outcome is poor and another way when the outcome is good, accountability becomes inconsistent and unfair.’”
“On a general IQ test she scored a rather inconsistent profile with both her working memory and her processing speed lying in the impaired (learning disability) range. Her visual-spatial ability appeared to be a strength and was actually in the low average range. As such it would be misleading to compute an overall (full-scale) IQ and it should be noted that she had both strengths and weaknesses in her cognitive functioning with impairment in the areas described. … Clearly these findings in combination indicate that the mother needs a learning environment which is optimised to her reported difficulties. I have suggested that a specific assessment for autistic spectrum disorder (ASD) would be helpful in this regard. In the interim she is likely to need additional support to function independently with a variety of tasks especially in literacy, memory, organisation and social interaction. The mother is likely to benefit from one-to-one support from someone who is able to carefully monitor her processing, understanding and retention of any information given. She is likely to benefit from extra learning trials and in an environment which is free from distraction and social complexity. She should have a parenting assessment designed for individuals with a learning disability such as the PAMS. Care should also be taken not to misinterpret any features of her social and emotional presentation until an autistic spectrum or abnormal personality traits have been clarified. In my opinion the mother should have an assessment by an intermediary for her attendance at court and should be supported by an advocate at other meetings with professionals in order to assist her understanding and retention of information. … I do recommend a psychological assessment is undertaken and in the first instance would suggest that is undertaken by a psychologist with specialist experience working with adults with ASD. There are recognised semi-structured protocols and assessment instruments which can assist with this.”
“Neither A or B has Wolf-Hirschhorn Syndrome. Neither child has had seizures whilst in the interim care arrangement with their paternal grandparents, as far as I am aware. And early concerns about any unusual facial features and mild developmental delay have also dissipated. Genetic testing in B and A has consisted of chromosomal microarray testing, which returned normal result. A has had additional testing of a panel of genes related to childhood epilepsy, and no significant changes were detected. In view of improvement in the children’s overall condition and given the results of the previous testing, nothing further is required. … However, if any of the other experts determine that there is a definitive epilepsy diagnosis and if there have been new concerns raised over the children’s development subsequent to the documentation provided in the court bundle, I would be happy to reconsider whether any further testing would be helpful or not.”
“B is not reported in the medical documentation to have evidence of developmental delay. He has had a normal chromosomal microarray test result recorded. All of this makes a syndrome unlikely. A has mild delay, and her mother has ‘specific’ learning difficulties, perhaps on the autistic spectrum. I believe this is what Prof Bu’Lock refers to as ‘syndromic’. I agree there may well be an underlying cause of the mother’s LD, possibly multifactorial in nature given the extended family history of attention deficit disorder (ADD), but independent of Wolf- Hirschorn syndrome (WHS), and epilepsy/apnoea, as, if the suggestion is that any syndromic association for the children’s presentation has been transmitted directly from the mother, we would expect her to have similar issues. She does not. Prof Bu’Lock makes mention of extending genetic analysis to whole exome or even whole genome sequencing, which would indeed be warranted if any other factors indicative of a wider syndrome were presented in the children, but there are none.”
“We know that mother has had a previous child who was very unwell with a known genetic condition and passed away and has post-traumatic stress disorder. The most likely explanation based on the evidence that we have gathered is that these apnoeic events are as a result of induced illness by his mother.”
“Described as ‘larger events’. These events occur approximately every week for the last 3-4 months. Last one was one week ago. There was a maximum of four weeks between events in August. 1st episode: She was playing. Stopped playing, ‘stopped breathing’, lip turned blue. Eyes staring to the left, Rolled up. Left hand twitching and not responsive for 7.5 minutes. ‘Groggy’ afterwards for 20 minutes. Latest episode of this type reported as playing on the sofa, staring at the TV. Mum placed into recovery position. Lips and finger tips blue. Lasted 5 mins and 15 seconds. Also eyes staring into space and left had twitching”
“62. Failure to protect comes in innumerable guises. It often relates to a mother who has covered up for a partner who has physically or sexually abused her child or, one who has failed to get medical help for her child in order to protect a partner, sometimes with tragic results. It is also a finding made in cases where continuing to live with a person (often in a toxic atmosphere, frequently marked with domestic violence) is having a serious and obvious deleterious effect on the children in the household. The harm, emotional rather than physical, can be equally significant and damaging to a child. 63. Such findings where made in respect of a carer, often the mother, are of the utmost importance when it comes to assessments and future welfare considerations. A finding of failing to protect can lead a Court to conclude that the children’s best interests will not be served by remaining with, or returning to, the care of that parent, even though that parent may have been wholly exonerated from having caused any physical injuries. 64. Any Court conducting a Finding of Fact Hearing should be alert to the danger of such a serious finding becoming ‘a bolt on’ to the central issue of perpetration or of falling into the trap of assuming too easily that, if a person was living in the same household as the perpetrator, such a finding is almost inevitable. As Aikens LJ observed in Re J, “nearly all parents will be imperfect in some way or another”
“72. I repeat my exhortation for courts and Local Authorities to approach allegations of ‘failure to protect’ with assiduous care and to keep to the forefront of their collective minds that this is a threshold finding that may have important consequences for subsequent assessments and decisions. 73. Unhappily, the courts will inevitably have before them numerous cases where there has undoubtedly been a failure to protect and there will be, as a consequence, complex welfare issues to consider. There is, however, a danger that significant welfare issues, which need to be teased out and analysed by assessment, are inappropriately elevated to findings of failure to protect capable of satisfying the section 31 criteria. 74. It should not be thought that that the absence of a finding of failure to protect against a non-perpetrating parent creates some sort of a presumption or starting point that the child/children in question can or should be returned to the care of the non- perpetrating parent. At the welfare stage, the court’s absolute focus (subject to the Convention rights of the parents) is in relation to the welfare interests of the child or children.”